Lundblad v. Sweden



AS TO THE ADMISSIBILITY OF

Application No. 14103/88

by Agneta LUNDBLAD

against Sweden

The European Commission of Human Rights sitting in private

on 10 December 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 June 1987

by Agneta LUNDBLAD against Sweden and registered on 28 August 1988

under file No. 14103/88;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Swedish citizen, born in 1948 and resident

at Eskilstuna. She is on early retirement.

The applicant has a daughter, Viktoria, born in 1979.

On 3 January 1987, the Deputy Chairman of the Social Council

(socialnämnden) of Enköping decided provisionally to take Viktoria

into care pursuant to Section 6 of the 1980 Act with Special

Provisions on the Care of Young Persons (lagen med särskilda

bestämmelser om vård av unga). Viktoria was taken into care the same

day by two social workers and two policemen.

The decision of the Deputy Chairman was confirmed by the

County Administrative Court (länsrätten) of Uppsala on 19 January 1987.

On 27 February 1987 the County Administrative Court of

Stockholm ordered that Viktoria be taken into care.

On 15 May 1987 the Administrative Court of Appeal

(kammarrätten) of Stockholm rejected the applicant's appeal. It found

that the applicant was a person who was constantly on the run from

society and its different agencies. Although this did not as such

imply that she could not care for Viktoria, it appeared that the

applicant gave priority to her own needs and subjected Viktoria to

constant stress and anxiety. A certificate by a psychologist

indicated that Viktoria had psychologically been damaged to a certain

extent as a result of her living conditions. The Court found that the

insufficiencies in the applicant's care of Viktoria constituted a

serious danger to Viktoria's health and development. The Supreme

Administrative Court (regeringsrätten) refused leave to appeal on 15

June 1987.

The applicant's subsequent request that the care be terminated

was rejected by the Social Council on 16 December 1987 and her appeals

were rejected by the County Administrative Court and the

Administrative Court of Appeal.

A dispute over the applicant's access to her daughter was

determined finally by the Administrative Court of Appeal which in a

judgment of 24 August 1988 found that the applicant should have access

to Viktoria five hours per month in the foster home.

A further request by the applicant that the care be terminated

was rejected by the Social Council on 25 January 1989. Her appeals

were rejected by the County Administrative Court and the

Administrative Court of Appeal; the latter Court's judgment is dated

11 September 1989.

On 25 September 1990 the Social Council prohibited the

applicant's access to Viktoria, including telephone conversations,

pending a police investigation concerning suspected sexual abuse of

Viktoria by the applicant.

Viktoria has lived in a foster home at Bodafors since

30 March 1987.

COMPLAINTS

The applicant complains that her daughter has been kept in

public care and of the manner in which the initial care order was

carried out. She also complains of the restrictions of access during

the care. She invokes Article 8 of the Convention.

THE LAW

1 The applicant complains of violations of Article 8 (Art. 8)

of the Convention, which reads as follows:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

2 There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

2 As regards the decision to take the applicant's daughter into

care, the Commission observes that it follows from the case law of the

Convention organs that the taking into care of a child constitutes an

interference with the parent's right to respect for family life

(cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A

No. 130, p. 29, para. 59). Consequently, there has been an interference

with the applicant's right to respect for her family life as

guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.

This interference could only be justified under Article 8

(Art. 8) if it was "in accordance with the law", had a legitimate aim

under Article 8 para. 2 (Art. 8-2) and was "necessary in a democratic

society" for the said aim.

The Commission is satisfied that the care order was "in

accordance with the law" and pursued the legitimate aim under Article

8 para. 2 (Art. 8-2) of protecting the health and rights of Viktoria

(cf. Olsson judgment, loc. cit., pp. 30-31, paras. 60-65).

As regards the question of whether the public care was

"necessary in a democratic society", the Commission recalls that this

condition requires that the interference corresponds to a pressing

social need and that it is proportionate to the legitimate aim

pursued. In determining whether an interference is "necessary" the

Commission will take into account that a margin of appreciation is

left to the Contracting States. It must determine whether the reasons

adduced to justify the interference are "relevant and sufficient"

(cf. Olsson judgment, loc. cit., pp. 31-32, paras. 67-68). When

examining these questions the Commission will take into account that

Article 8 (Art. 8) includes a procedural requirement that in

child-care cases the parents must have been sufficiently involved in

the decision-making process (see Eur. Court H.R., W. v. the United

Kingdom judgment of 8 July 1987, Series A No. 121, p. 29, para. 64).

The Commission recalls the proceedings which have taken place.

From the different court judgments it appears that the original care

order was based on the applicant's behaviour and failure to give

Viktoria sufficient care and that the courts found that the conditions

at the applicant's home were such as to jeopardise Viktoria's health

and development. It was therefore considered necessary to place her

in public care.

These reasons were, in the Commission's opinion, clearly

"relevant" for the care decision and, having regard to the margin of

appreciation of the Contracting States and the procedures followed,

the Commission also finds that the reasons were "sufficient" and that

the Swedish authorities were entitled to think that it was necessary

to take Viktoria into care.

It follows that as regards the decision to take Viktoria into

care the application is manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

3 As regards the decisions concerning regulation of access to

Viktoria and the decisions concerning continued public care, the

Commission observes that the applicant has not shown that she has

appealed to the Supreme Administrative Court. She has therefore not

complied with the condition in Article 26 (Art. 26) of the Convention

as to the exhaustion of domestic remedies and this part of the

application must therefore be rejected under Article 27 para. 3

(Art. 27-3).

4 The Commission finds no appearance of any other violation of

Article 8 (Art. 8) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)