AS TO THE ADMISSIBILITY OF
by Eleonor LEVIN
The European Court of Human Rights (Third Section), sitting on 20 January 2009 as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra, judges,
and Stanley Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 21 August 2006,
Having deliberated, decides as follows:
1. The applicant, Mrs Eleonor Levin, is a Swedish national who was born in 1967 and lives in Göteborg. She is represented before the Court by Mrs B. Wallman, a lawyer practising in Örebro.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
2. The applicant is the mother of three children, T. born in October 1999, S. born in March 2001 and D. born in November 2002. In March 2003, the applicant separated from the children’s father, B., and she was eventually granted sole custody of the children, while B. was granted access rights. During the summer of 2004, the applicant moved with the children from Örebro to Skellefteå in northern Sweden (a distance of approximately 850 km). As a consequence, B.’s contact with the children became almost non-existent. The applicant married J. in November 2004.
3. During 2002 and 2003 the social services in Örebro had examined the children’s home environment and a contact family had been made available to the family during the autumn of 2003. In June 2004 a new investigation into the family’s situation had commenced due to reports expressing concern for the children. Since the applicant and the children moved to Skellefteå shortly thereafter the investigation was discontinued.
2. Taking into public care
4. In January 2005 the family moved to a house in Burträsk (about 40 km from Skellefteå) and the children started day care there. From the outset, the personnel at the day care centre felt that the applicant was distracted and stressed and they saw that the children’s clothes and shoes had been cut and torn to pieces and subsequently mended. In March 2005 the applicant contacted the Child and Youth Psychiatric Clinic (Barn- och ungdomspsykiatrin; hereafter “BUP”) for help, as she considered the situation to be chaotic and she needed help for her son, S., who she claimed destroyed everything at home, including furniture, clothes and shoes.
5. As a consequence, the BUP and the staff at the day care centre reported the family’s situation to the social services in Skellefteå. They called the applicant to a meeting. However, she did not respond either to letters and e-mails or to telephone calls. In April 2005 the day care reported to the social services that the children were hungry and dirty when they arrived at day care in the mornings and were behaving in a wild and hyperactive manner. The social services made an unannounced visit to the applicant’s home but, although the social workers heard and saw the children through the windows, no one opened the door.
6. On 3 May 2005 the applicant contacted the BUP in a state of despair. According to the BUP, she was confused and incoherent, which led them to report their concern to the social services. In response, a social emergency unit (social beredskap) went to the applicant’s home, accompanied by police and a chief physician from the adult psychiatric clinic. As the applicant refused to talk to them and there was serious concern for the children’s welfare, the police opened the door by force and the authorities found the interior of the home completely destitute; there was hardly any furniture, some window panes were missing and there was no electricity or running water. The applicant was in a confused state and blamed the mess in the house on S. In the circumstances, the social emergency unit decided immediately to place the children, together with the applicant, in a temporary family home (jourfamiljehem).
7. On the following day, the applicant was committed to compulsory psychiatric care in accordance with the Act on Compulsory Psychiatric Care (Lagen om psykiatrisk tvångsvård, 1991:1128). The applicant claimed that she was not ill and maintained that it was S. who had destroyed the entire interior of the house. However, she agreed to the placement of the children in the temporary family home.
8. On 12 May 2005 the applicant was released from psychiatric care and returned to her home. A few days later the social services visited her and she showed them around the house. Electricity cables had been cut everywhere, as had the water pipe in the kitchen. The wallpaper and curtains were partly ripped, the sofa had been cut in several places, the washing machine was broken, there were locks on all doors and wardrobes and clothes and shoes had been cut to pieces. The applicant and J. alleged that S. had caused all the damage, using kitchen knives and forks. In their view, he was a very clever and calculating 4 year-old and he had managed to tear the house apart despite them watching him all the time and locking the doors. The applicant wanted to get professional help for S.
9. During the summer of 2005 the applicant had frequent contact with the social services. However, she felt misunderstood and harassed by the authorities and wanted to know when she could bring her two daughters, T. and D., home. As the social services insisted that the situation was not stable enough for the girls to return to the applicant, she withdrew her consent to the voluntary placement of the girls in the temporary family home on 22 August 2005. Hence, on the same day, the Social Council (socialnämnden) in Skellefteå decided to take T. and D. into public care immediately on a provisional basis, pursuant to section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52; hereafter “the 1990 Act”). The council considered that, since the applicant had withdrawn her consent to the voluntary placement, the measure was necessary in order to protect the children. In reaching this conclusion, it had regard to the ongoing investigation into the family’s situation which indicated that the applicant lacked the ability to care for her children, that their living environment had been unacceptable, that the children had been dirty and hungry when taken into care in May 2005 and that the applicant still maintained that it was S. who had destroyed the entire home. Moreover, there had been chaos every time the applicant had met with the children during the summer or when she had appeared, often unannounced, at their day care centre, leaving them upset and sad.
10. The applicant opposed the measure. She stated that their house had been renovated and the girls’ rooms were ready. The only reason she had accepted the voluntary placement was to be able to renovate the house. The family’s problems emanated from S.’s destructive behaviour. but when she had asked the authorities for help, they had taken her children from her instead of trying to help them. T. and D. wanted to come home to her.
11. On 31 August 2005 the County Administrative Court (länsrätten) of Västerbotten confirmed the decision of the Social Council. It would appear that the applicant did not appeal against this judgment.
12. On 19 September 2005 the Social Council applied to the County Administrative Court for a permanent care order in respect of all three children, in accordance with section 2 of the 1990 Act. The council maintained that the applicant had shown a serious lack of ability to care for her children and that, consequently, there was a clear risk of impairment to their health and development if they were not protected. It submitted a comprehensive investigation report into the family’s situation in support of its request. The report was based on letters from the applicant, observations from the social service’s presence during twelve meetings between the applicant and her children, telephone conversations with the applicant’s sister, two of her good friends, the temporary family home, the day care centre (former and present) and the local health care service as well as notes from the BUP. According to the report, all three children had worn nappies when they arrived at the temporary family home, although T. only at night, and they had been dirty and had had an endless appetite. Moreover, they had not reacted to the separation from their mother and they had not known how to play. Furthermore, T. had had no limits towards adults and wanted to control everything and everyone around her. S. had had nightmares and had been afraid of sudden movements. He acted in a very stressed and anxious manner when his mother was present. D. had been late in her speech and motor development. The applicant had not been able to set limits for her children and the situation when they met had always become out of control. She had refused any help as she insisted that it was only S. who was in need of help and that everything would be fine if only his behaviour were corrected. The social services considered it practically impossible that S. was to blame for the destruction of their home and found the fact that the applicant told everybody that this was the case to be a form of psychological abuse against S.
13. The applicant disputed that public care was needed, as she was capable of caring for her children. She insisted that S. needed professional help but she did not agree to the care plan suggested by the Social Council as she considered that it lacked competence. The children suffered from being separated from her.
14. The County Administrative Court held an oral hearing in the case and, on 3 October 2005, it decided to adjourn the proceedings pending a medical examination of the children. However, it noted that S. was still placed in the family home on a voluntary basis, which meant that the applicant was at liberty to fetch him at any time. Having regard to the circumstances of the case, the court considered that this was not desirable and decided that S. should be taken into public care immediately on a provisional basis pursuant to section 6 of the 1990 Act.
15. By judgment of 19 October 2005 the County Administrative Court granted a permanent care order in respect of each of the three children. It found that, on the basis of all the material in the case, it had been shown that the applicant lacked the ability to care for her children, which had already somewhat impaired their health and development, and that there was a serious risk of further damage unless they were given proper care. Since the applicant did not agree to voluntary care, it was necessary to take the children into public care on a permanent basis.
16. The applicant appealed against the judgment to the Administrative Court of Appeal (kammarrätten) in Sundsvall, maintaining that public care was not necessary for any of her children. They were in good health and developing normally. On 30 November 2005 she had suddenly realised that it was not S., but her husband J., who had been responsible for all the destruction in their home. J. had admitted this in police questioning and, as a result, they had separated. On 12 December 2005 they had divorced and she did not intend to have any contact with him in the future. She had first suspected S. of causing the damage because he had been quite mischievous. However, she did not consider that any of the children had suffered from this error, although she felt sorry for S. and would have liked to talk to him about it. She further stressed that since she stuttered she was often misunderstood or regarded as being odd. Hence, she had a special need to feel confidence and trust in her contacts with others.
17. The Social Council contested the appeal. In its view, the children’s behaviour showed that their development had already been harmed, for instance, none of the children had a feeling of satisfaction when they ate and they did not know how to play. They were stressed before their meetings with their mother and slept badly. According to the Social Council, the applicant had no insight into her problems and had difficulties in interacting with her children.
18. The legal representative, assigned to defend the children’s best interests, supported the Social Council’s stance. She claimed that the applicant lacked the ability to care properly for her children, noting that she had rejected all offers of help and support from the social services and had refused to accept any responsibility for the current situation. Moreover, the children showed symptoms of stress and anxiety and were in need of care as specified in the care plan.
19. On 9 January 2006 the Administrative Court of Appeal upheld the lower court’s judgment in full. In its opinion it was evident that the children had not received proper care at home. Their home had been unfit for living in, their hygiene had been neglected and much indicated that they had not been fed correctly. The applicant had shown signs of mental ill-health, had behaved in an unbalanced manner and had, repeatedly, accused S. of serious vandalism of their home, also in the presence of his sisters. Because of this lack of care, the court considered that there had been a real risk of damage to the children’s health and development. Since the applicant had not consented to the care plan, there had been grounds to take the children into public care. Moreover, although the court acknowledged that the situation had improved in that the house had been renovated and the applicant had divorced J., it found that the situation was far from being stable, having regard to the serious flaws which had existed, the uncertainty as to whether they still existed and the children’s need for care. Thus, it concluded that the care order should be upheld.
20. The applicant appealed to the Supreme Administrative Court (Regeringsrätten) which, on 23 February 2006, refused leave to appeal.
3. Access restrictions
21. Following the granting of the public care order in August 2005, the applicant had access rights to visit T. for one hour, once every other week, and spoke with her on the telephone once a week. She met S. once every third week in the presence of the social services and she had access rights to visit D. for one hour every week. In May 2006 the applicant moved to live with her sister in Göteborg, located approximately 1,100 km from Skellefteå, and as a result she travelled to Skellefteå to see her children roughly once a month.
22. It would appear that in October 2005, the children were placed in three different family homes, all within approximately 50 km of Skellefteå.
23. In November 2006 the applicant requested the Social Council to allow her more time with her children as she felt that the children were being deprived of contact with her. She demanded a written decision.
24. On 11 December 2006 the Social Council decided to restrict the applicant’s access rights to all three children. It first noted that the children’s father, B., had also requested access rights to the children and that his access rights had to be taken into account when deciding on the frequency of the applicant’s access rights, balanced against the best interests of the children. Thus, according to the decision, each parent should meet with the children once every three months in a neutral environment where the family home parents should be present. In essence, this meant that the applicant would see her children only twice a year.
25. The decision was based on an investigation carried out by the Social Council, in consultation with the BUP, into the children’s situation and which concluded inter alia the following. Since the permanent care order, T. had slowly become more calm and balanced and had started to learn how to play. She and the applicant had been alone during their meetings and had done various things such as going to the playground, the swimming pool or a restaurant. T. had been very tired after the meetings and she had slept badly and wet her bed. After telephone conversations with the applicant, T. had also been anxious and sad. As regards S., he was very sensitive but had become calmer and more relaxed but had difficulties sleeping and suffered from stomach pains and vomiting before and after contact with the applicant, despite the meetings having been very structured and held in the presence of the family home father. S. had expressed a fear that the applicant would come and fetch him. Turning to D., it was observed that she had met with the applicant and that they had usually been alone, playing together. After contact with the applicant, D. used to be worried about things the applicant had told her and she receded somewhat in her development for a few days after each meeting, wetting her bed and having difficulty sleeping. The Social Council concluded in its investigation report that the children had a right to contact with their mother but that their best interests required that the contact be limited in order to ensure their secure and positive development.
26. The applicant appealed to the County Administrative Court and requested that she be granted access rights to her children much more often than only twice a year. She could see no reason for such restricted access and found it to be contrary to the best interests of the children as they would forget their mother. They had lived with her until May 2005 and they had had a close and warm relationship. She agreed that the children should also see and get to know their father but considered that this should not limit her contact with them. Moreover, she referred to a custody report, dated 28 February 2005, which had been carried out in connection with the custody proceedings following the divorce. In the summary of the report, it was stated, inter alia, that nothing had appeared to call into question the applicant’s ability as a parent to care for her three children and that personnel at the children’s day care centre had stated that the children seemed to get the care they needed from the applicant.
27. The Social Council contested the appeal. It submitted that the children were currently in the process of developing and learning things that they had not had the opportunity to learn before and it was important that this process should not be interrupted, which was the effect of their contact with the applicant. Consultation had taken place with the BUP, which agreed with the Social Council that access restrictions were necessary in order to ensure positive development for the children. Moreover, it noted that the last meeting between the applicant and her children, on 23 January 2007, had passed without incident, partly because eight adults had been present to ensure the children’s well-being.
28. On 2 April 2007 the County Administrative Court rejected the appeal. It noted that a supplementary custody report, dated 25 August 2005, stated that it was clear that there were major flaws in the applicant’s ability to care for her children. Thus, having regard to the fact that the children had been feeling ill and anxious in connection with and after their contacts with the applicant, and that they needed time to develop in peace in their family homes, the Social Council had been justified in restricting the applicant’s access rights to her children to twice a year.
29. The applicant lodged an appeal with the Administrative Court of Appeal, maintaining her claims and adding that she wished to see her children at least once a month in order to ensure that they would not forget her. She felt that the family home parents had a negative attitude towards her and that this influenced the children.
30. On 11 October 2007, after having held an oral hearing, the Administrative Court of Appeal upheld the lower court’s judgment in full. It noted that the BUP had been consulted by the Social Council before its decision.
31. Upon further appeal by the applicant, the Supreme Administrative Court refused leave to appeal on 10 December 2007.
B. Relevant domestic law and practice
32. According to section 1 § 2 and section 2 of the 1990 Act, compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person under 18 years of age due to ill-treatment, exploitation, lack of care or any other condition in the home and if the necessary care cannot be provided with the consent of the child’s guardian. The decision to place a child in public care is made by the County Administrative Court following an application from the Social Council (section 4).
33. Under section 6 of the 1990 Act, the Social Council may order the immediate taking into care of a child (“provisional care order”) if it is likely that he or she needs to be provided with care under this Act and a court decision in the matter cannot be awaited owing to the risks to the child’s health or development or because the continuing investigation can be seriously impeded or further measures prevented. Section 7 provides that a provisional care order shall be put before the County Administrative Court which shall rule on whether the order shall be upheld pending the court’s judgment regarding the application for public care.
34. Section 1 § 5 of the 1990 Act states that the best interests of the child shall be decisive when decisions are made under the Act.
35. According to section 11 of the 1990 Act, the Social Council decides on the details of the care, in particular, how the care is to be arranged and where the child is to live. Moreover, under section 14, the council shall ensure that the child’s need for contact with his or her parents or other guardians is met to the greatest possible extent. If necessary, the council may decide how this contact is to be arranged. In the travaux préparatoires to the 1990 Act (prop. 1979/80:1, p. 602), it is noted that the provisions on access restrictions are to be applied restrictively. The Social Council must have strong reasons to decide on access restrictions between a child and his or her parents. However, it can happen that the parents intervene in the care in an inappropriate manner. Their personal situation, for instance serious abuse or a grave mental illness, may be such that they should not see their child for a limited period of time.
36. The care order shall be reviewed every six month and access restrictions shall be reviewed every third month by the Social Council pursuant to sections 13 and 14 of the 1990 Act.
37. Under Article 8 of the Convention, the applicant complained that the taking into public care of her three children violated her right to family life, as did the very restricted access rights to her children. Furthermore, on behalf of her children, she alleged that they had very limited contact with each other, also in breach of Article 8.
38. The applicant made various complaints under Article 8 of the Convention which, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his ... family life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests ..., for the protection of health or morals, or for the protection of the rights and freedoms of others.”
39. The applicant first complained that the Social Council’s decisions to take her children into public care violated her right to family life.
40. In this respect, the Court observes that the applicant failed to appeal against the County Administrative Court’s judgment of 31 August 2005, confirming the Social Council’s decision to take T. and D. into public care immediately on a provisional basis. She also failed to appeal against the County Administrative Court’s judgment of 3 October 2005, taking S. into public care immediately on a provisional basis.
41. It follows that the complaint in these parts is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.
42. As regards the permanent care order, the Court notes from the outset that, according to well established case-law, the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention. The Social Council’s decision, confirmed by the national courts, to take the children into public care on a permanent basis, clearly amounted to an interference with the applicant’s right to respect for her family life as guaranteed by Article 8 § 1 of the Convention. Any such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under Article 8 § 2 and can be regarded as “necessary in a democratic society” (see, among other authorities, K. and T. v. Finland [GC], judgment of 12 July 2001, Reports 2001-VII, § 151).
43. The Court is satisfied that the impugned measure had a basis in national law, namely the 1990 Act, and aimed at protecting the “health and morals” and the “rights and freedoms” of the children.
44. In determining whether the measure was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of Article 8 § 2 (see, inter alia, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002 I).
45. In so doing, the Court will have regard to the fact that perceptions of the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their margin of appreciation (see, among others, Kutzner, cited above, § 66, and Eglert v. Sweden, (dec.) no. 39432/04, 20 September 2007).
46. Moreover, the margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim of reuniting the family as soon as circumstances permit. The Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care (see K. and T. v. Finland, cited above, §§154-155, with further references).
47. Turning to the present case, the Court observes that the social services in Örebro had examined the children’s home environment in 2002, 2003 and 2004 due to reports expressing concern about them. Hence, in the autumn of 2003 a contact family had been made available for the family, although it is unknown to the Court whether the applicant ever made use of this help. Moreover, when the family moved to Burträsk in January 2005, the staff at the children’s new day care centre immediately noticed that the applicant was stressed and distracted and that the children’s clothes and shoes had been mended. In April 2005, they reported to the social services that the children were dirty, hungry and behaving in a wild manner when they arrived at day care in the mornings. Furthermore, when the social emergency unit entered the applicant’s home on 3 May 2005, the interior of the home was completely destitute and there was no electricity or running water. In these circumstances, the Court considers that it was the authorities’ duty to remove the children from the home in order to ensure their health and safety.
48. Here, the Court notes that the applicant herself had contacted the BUP for help in March 2005 and again in May 2005 as she considered the situation at home to be chaotic and out of control and, although she had refused all contact with the social services when they tried to contact her, she agreed that they place her and the children in a temporary family home. Moreover, she maintained her consent after she had been placed in, and later released from, compulsory psychiatric care. In fact, she only withdrew her consent in relation to T. and D. when the house had been renovated and she wanted the girls to return home and it was at this point that the Social Council decided to take the children into public care on a permanent basis.
49. Thus, the Court considers that the crucial issue is whether, at the time when the permanent care order was issued, the applicant was capable of providing her children with the care that they needed. Here, it takes into account that the Social Council’s decision was taken on the basis of an in-depth investigation into the family’s situation, in which the BUP had also been involved. The investigation had shown that the applicant lacked the ability to care for her children’s basic needs and that their health and development had already suffered from this want of care. Furthermore, the applicant refused any help from the social services and lacked insight into the family’s problems. In her view, if only S. were to receive proper help for his destructive behaviour, all would be well.
50. In relation to this, the Court cannot help but be astonished by the fact that the applicant insisted on blaming the destruction in their home on her four year-old son until November 2005 when her husband J. admitted that he had been responsible. Moreover, she had told family and friends as well as the day care staff and the social services that S. was responsible for the damage even though she had never seen him do anything and she had claimed to be supervising him constantly. In the Court’s view, this must have had a very negative effect on S. as well as on his two sisters who had witnessed it. This is further supported by the findings of the investigation report which indicated that the children were stressed and anxious but had not reacted to the separation from their mother. Instead, the situation had become chaotic every time they had met following the voluntary placement and the children had reacted with sadness, anxiety and stress before and after the visits.
51. Having regard to the above, and keeping in mind that the national authorities’ primary task was to safeguard the interests of the children and that the applicant refused to cooperate with the authorities, the Court finds that the Swedish authorities acted within their margin of appreciation when they decided to take T., S. and D. into public care on a permanent basis and that they gave relevant and sufficient reasons for their decision. The Court further observes that the applicant was represented by legal counsel throughout the proceedings.
52. Finally, the Court observes that there is nothing to prevent the applicant from requesting that the care order be revoked in the light of changed circumstances and that, in any event, the Social Council is obliged to reassess the children’s care order every six months. Accordingly, in the circumstances of the case, the Court concludes that the interference was justified under Article 8 § 2 of the Convention.
53. It follows that this complaint is manifestly ill-founded pursuant to Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.
54. The applicant also alleged that the lack of contact between the children themselves, after having been placed in separate family homes in October 2005, was in breach of their rights under Article 8 of the Convention.
55. The Court observes that the applicant has submitted nothing to support her claim that the children have no, or only very little, contact with each other. It follows that this complaint must be rejected as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.
56. The applicant further complained that the authorities’ decision to restrict her access rights to her children to once every six months was in violation of her right to her family life.
57. The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the restriction on her access rights to her children;
Declares the remainder of the application inadmissible.
Stanley Naismith Josep Casadevall
Deputy Registrar President