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FIFTH
SECTION
CASE OF LEVIN v. SWEDEN
(Application
no. 35141/06)
JUDGMENT
STRASBOURG
15 March
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Levin v. Sweden,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean
Spielmann,
President,
Elisabet
Fura,
Karel
Jungwiert,
Mark
Villiger,
Ann
Power-Forde,
Ganna
Yudkivska,
André
Potocki, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 7 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35141/06)
against the Kingdom of Sweden lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Swedish national, Ms Eleonor Levin (“the applicant”), on
21 August 2006.
2. The
applicant, who had been granted legal aid, was represented by Ms B.
Wallman, a lawyer practising in Örebro. The Swedish
Government (“the Government”) were represented by their
Agent, Mr B. Sjöberg, of the Ministry for Foreign Affairs.
3. The
applicant alleged a breach of Article 8 of the Convention in relation
to the contact restrictions following the taking into public care of
her three children.
- On
20 January 2009 the Court declared
the application partly inadmissible and decided to communicate the
complaint concerning the contact restrictions to the
Government. It also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
- On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1 of the Rules of Court) and the above application
was assigned to the newly composed Fifth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1967 and lives
in Norway.
A. Background and taking into public care
- 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 contact rights. The applicant married J. in November 2004.
- The
applicant and her children have been known to the social services
since 2002 when a first investigation into their home environment was
carried out. During March and April 2005, the personnel at the
children’s day care centre felt that the applicant was
distracted and stressed and the children were hungry and dirty when
they arrived at day care in the mornings and were behaving in a wild
and hyperactive manner. In view of this, they reported the situation
to the social services in Skellefteå. In March the applicant
herself 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. BUP
reported the family’s situation to the social services.
- On
3 May 2005 the applicant contacted BUP in a state of despair and, 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. The authorities found
the interior of the home completely destitute; there was hardly any
furniture and there was no electricity or running water. The
applicant was in a confused state and blamed the mess in the house on
S. The social emergency unit decided immediately to place the
children, together with the applicant, in a temporary family home
(jourfamiljehem).
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 but agreed to the
placement of the children in the temporary family home. A week later,
she was released from psychiatric care and returned to her home.
- 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 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 their voluntary placement. Hence, 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 the measure was necessary in order to protect
the children. It also noted that 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.
- The
applicant, who was represented by legal counsel, opposed the measure
but, on 31 August 2005, the County Administrative Court (länsrätten)
of Västerbotten confirmed the decision of the Social Council.
- 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. It submitted a comprehensive
investigation report into the family’s situation in support of
its request according to which 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 an endless appetite. Moreover,
T. had no limits towards adults and wanted to control everything and
everyone around her. S. 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.
- The
applicant disputed the measure and claimed that she was capable of
caring for her children, who suffered from being separated from her.
- By
judgment of 19 October 2005, after having held an oral hearing, 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.
- The
applicant appealed against the judgment to the Administrative Court
of Appeal (kammarrätten) in Sundsvall. She had 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 and they had
divorced. However, she did not consider that the children had
suffered from this error, although she felt sorry for S. and would
have liked to talk to him about it.
- The
Social Council contested the appeal. In its view, the children’s
behaviour showed that their development had already been harmed and,
moreover, the applicant had no insight into her problems and had
difficulties in interacting with her children.
- 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. Moreover, the
applicant had shown signs of mental ill-health and had behaved in an
unbalanced manner. Thus there had been a real risk of damage to the
children’s health and development. Furthermore, 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.
- The
applicant appealed to the Supreme Administrative Court
(Regeringsrätten) which, on 23 February 2006, refused
leave to appeal.
B. Contact restrictions
- Following
the granting of the public care order in August 2005, the applicant
had contact 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
contact 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.
- In
October 2005, the children were placed in three different family
homes, all within approximately 50 km of Skellefteå, as one
family was not able to provide the care and support that each child
needed. However, it was arranged for the children to meet each other
approximately once a month to ensure continued good contact between
them.
- In
November 2006 the applicant, through her legal counsel, 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.
- On
11 December 2006 the Social Council decided to restrict the
applicant’s contact rights to all three children. It first
noted that the children’s father, B., had also requested
contact rights to the children and that his contact rights had to be
taken into account when deciding on the frequency of the applicant’s
contact 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 and the social worker responsible for the file
should be present. This meant that the applicant would meet her
children once every six months.
- The
decision was based on an investigation carried out by the Social
Council, in consultation with BUP, into the children’s
situation. It was finalised on 1 December 2006 and concluded, inter
alia, the following. All three children had suffered severe
harm to their health and development because of the deficiencies in
the applicant’s ability to care for them. They were vulnerable
and sensitive to change. However, 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 had become calmer and more relaxed since placed in
the family home. He still 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. showed clear signs of
fear of his mother and he had expressed a fear that she 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 regressed 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.
- The
applicant appealed to the County Administrative Court and requested
that she be granted contact rights to her children much more often
than only twice a year. She could see no reason for such restricted
contact 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 from B. 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 receive the care
they needed from the applicant.
- 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
BUP, which agreed with the Social Council that contact restrictions
were necessary in order to ensure a 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.
- 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
contact rights to her children to twice a year.
- 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.
- 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 BUP had been consulted by the Social
Council before its decision.
- Upon
further appeal by the applicant, the Supreme Administrative Court
refused leave to appeal on 10 December 2007.
- Every
three months, the Social Council reconsidered the contact
restrictions and decided to maintain the restrictions in place. It
would appear that the applicant did not appeal against these until
the council’s decision of 11 August 2008 which she appealed
against to the County Administrative Court, requesting that her
contact rights to her children be increased to one visit per month to
begin with and, after three months, to spend one weekend a month with
them alone. She stated, inter alia, that she had moved to
Norway, found a job and was in a steady relationship with a new man,
and thus, felt very well.
- In
its decision, the Social Council had observed that despite the
applicant’s visits having been planned and very structured, the
children had still had negative reactions before and after each
meeting in the form of anxiety, stomach aches, bedwetting, becoming
insecure and regressing in their development. It further noted that
during the visit in December 2007, the applicant’s mother had
also been present which had been a positive addition. She had
expressed a wish to see her grandchildren once a year, to which the
council agreed. It also noted that the applicant had sent postcards
and letters to the children which they appreciated. As concerned the
visits, the council observed that they were always very well planned
and structured with the support of the family homes and that the
applicant and the children played together, ate and talked. The
family homes also showed photos and films from the children’s
meetings and their activities.
- On
14 November 2008 the court, after having held an oral hearing,
decided to increase the applicant’s contact with her children
to four times per year, for four hours each time. It noted that the
limited contact had been in place for roughly two years and had
contributed to the children developing positively during this time.
Although it agreed with the Social Council that continued limitations
on the applicant’s contact with her children were necessary due
to the children’s needs, it noted that the applicant had not
interfered in an inappropriate manner in the care of her children.
Moreover, the last two times they had met had generally gone well.
Therefore, the court found that with the support of the Social
Council and the family homes during the meetings, these could be
increased to four times per year for the applicant. In its view, this
would provide the children with a good contact with their mother
while not jeopardising their continued development.
- The
applicant appealed to the Administrative Court of Appeal, maintaining
that she wanted contact rights with her children during one weekend
per month, without the presence of others, in order to ensure that
she and the children would establish a good contact.
- The
Social Council contested the appeal and maintained the reasons set
forth in its decision.
- The
Administrative Court of Appeal requested the Social Council to obtain
the children’s point of view on increased contact with their
mother. Consequently, the council met with the children individually
but in the presence of their family home parents where they spoke
about various things, including how they felt about seeing their
mother more often. T. said that she did not want to meet her mother
more than twice a year and that she did not want to be alone with her
or stay with her. According to T., the meetings were very tiresome,
demanding, she had a headache and could not concentrate in school
before and after the meetings. She started crying and had a stomach
ache during the conversation for which reason they had to cut it
short. Following the conversation, she wet her bed at night, cried a
lot and said that she was afraid. As for S., he did not want to talk
about his mother. He reacted in a negative, frightened manner and
almost started crying. He later said that he only wanted to see her
once a year and that he did not want to be alone with her. It was
noted that he was very anxious and afraid to meet his mother and had
strong physical reactions both before and after the meetings,
including stuttering, becoming aggressive and being afraid of
physical contact. Turning to D. she said that she became tired when
meeting her mother and siblings but that it was nice to dress up and
eat good food. It was noted that D. was the most positive about the
meetings with the applicant but that she did not want to meet with
her alone. Moreover, the negative reactions that she had had during
earlier meetings had improved somewhat.
- In
February 2009 the applicant voluntarily underwent a
neuropsychological examination during two days at Stavanger
University Hospital, upon request by the Social Council. The council
wanted to know if the applicant suffered from a disorder or mental
illness and, if so, what support she would need. The examination
concluded that the applicant fulfilled the criteria for Attention
Deficit Hyperactivity Disorder (ADHD) that was mainly inattentive in
nature. It recommended supplementary examinations and made a number
of proposals for supportive measures, including establishing fixed
structures and routines in her daily life. It was also stressed that
this specific impairment of her capabilities could hardly be
sufficient to “disqualify her as a parent”.
- On
7 May 2009 the Administrative Court of Appeal upheld the lower
court’s judgment in full. It concluded that it would not be in
the best interest of the children to increase the applicant’s
contact rights further than decided by the lower court, in particular
due to the negative reactions of T. and S. before, during and after
the meetings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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).
- Chapter
1, section 2 of the Social Services Act (Socialtjänstlagen,
2001:453; hereafter the “2001 Act”) provides that
particular attention must be given to the best interests of the child
when measures within the social services affect him or her. Likewise,
Section 1 § 5 of the 1990 Act states that the best interests of
the young person shall be decisive when decisions are made under the
Act. Moreover, Section 1 § 6 of the 1990 Act prescribes that the
young person’s point of view shall, as far as possible, be
clarified and that the young person’s will shall be taken into
account, with due consideration to his or her age and maturity.
- 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 young person is to live. Moreover, under section 14,
the council shall ensure that the young person’s need for
contact with his or her parents or other guardians is met to the
utmost possible extent. If necessary, the council may decide how this
contact is to be arranged. In the preparatory works to the 1990 Act
(Government Bill 1979/80:1, p. 602), it is noted that the provisions
on contact restrictions are to be applied restrictively. The Social
Council must have strong reasons to decide on contact restrictions
between a young person 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.
- According
to Chapter 6, section 1 of the 2001 Act, care outside a young
person’s home shall be provided either in a family home or in a
home for care and residence. Moreover, the care should be designed to
promote the affinity between the young person and his or her
relatives and others closely connected to him or her, as well as
contact with his or her home surroundings.
- Contact
restrictions shall be reviewed every third month by the Social
Council pursuant to section 14 of the 1990 Act. Appeal against the
council’s decision in this respect lies to the administrative
courts (section 41).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the limited contact
rights to her three children violated her rights under Article 8 of
the Convention, which in relevant parts 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 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.”
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust
domestic remedies available to her since, in the new proceedings
concerning the contact restrictions, the applicant could appeal
against the Administrative Court of Appeal’s judgment of 7 May
2009 to the Supreme Administrative Court.
- The
Court notes that the applicant’s complaint before the Court
relates to the contact restrictions imposed on her by the Social
Council’s decision of 11 December 2006 against which she
appealed to the Administrative County Court and then further to the
Administrative Court of Appeal and, lastly, to the Supreme
Administrative Court which refused leave to appeal on 10 December
2007. Thus in relation to her complaint before the Court, the
applicant must be considered to have exhausted domestic remedies. The
fact that domestic law prescribes that contact restrictions shall be
reviewed by the Social Council every three months, and that appeal
against its decision in this regard lies to the administrative
courts, does not alter this conclusion. In the Court’s view,
these subsequent proceedings may be taken into account by the Court
in the consideration of the merits of the case but cannot have an
influence in determining the formal admissibility criteria. It
follows that the Government’s objection must be dismissed.
- The
Court further notes that the application is neither manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Parties’ submissions
(a) The applicant
- The
applicant submitted that since her children had
been taken into compulsory public care, she had taken all possible
legal action for contact with her children. She stressed that she was
a kind and loving mother who cared for her children and wanted to be
reunited with them. However, the Social Council had shown little or
no interest in keeping her informed about her children’s
development and their situation. She had not received information
from either the council or the family homes about her children and
she was not even allowed telephone contact with them. Moreover, the
council’s contact with her was extremely rare and it knew
nothing about her current life and situation. In this connection, the
council had not made any changes in their approach towards her
despite having received the neuropsychological report (see § 36
above) in which the doctors had made certain recommendations on how
better to interact with her.
- In
her view, it was important to note that, in a report in relation to
custody proceedings in February 2005, the same Social Council had
found that there were no circumstances to question her ability to
care for her children. In the same report, the children’s day
care centre had stated that the children received the care they
needed from her and the personnel spoke positively about her
commitment to her children. The family situation had changed because
of her former husband, J.’s, mental illness and the destruction
of their home had been a terrifying experience. The children had been
taken into care during this dramatic period and she had so far not
been able to explain to her children what had really happened.
- She
further noted that the opinions by BUP were not based upon actual
meetings and examinations of the children but upon information from
the Social Council. This meant that the opinion of BUP could have
been influenced by the attitude of the council towards her. Moreover,
the assessment of the children referred to by the Social Council and
the Government dated back to 2006.
- The
applicant considered that her contact with the children was unnatural
as she was never allowed to be alone with them. The six family home
parents as well as two social workers were always present. Moreover,
she felt uncomfortable as the visits were held in public places, such
as a restaurant, although it was a very private matter. In the
applicant’s view, this could not be in the best interest of the
children. The authorities were responsible under the 1990 Act to
ensure that the children’s need for contact with their parents
was met and it was important that this happened in a more natural way
and more often.
- In
conclusion, the applicant maintained that the restricted contact
rights to her children violated her right to respect for her family
life under Article 8 of the Convention.
(b) The Government
- The
Government acknowledged that the contact restrictions constituted an
interference with the applicant’s right to respect for her
private and family life but that these limitations were in accordance
with the law, pursued a legitimate aim and were necessary in a
democratic society. They stressed that it was the best interests of
the children which were of crucial importance and that the domestic
authorities had constantly based their measures on the established
need to protect the children, having regard to the applicant’s
conduct and behaviour and their negative reactions to this. Here the
Government observed that each meeting with the applicant had been
trying for the children and that the applicant’s behaviour had
made them feel scared, bad or ill at ease and that they had reacted
in different ways to the visits, inter alia, through sleeping
difficulties, bed wetting, anxiety and depression. Moreover, an
extension of the visits would have been against the expressed will of
the children. Therefore, the Social Council had feared that the
visits would ultimately be detrimental to the children’s
well-being and contrary to their best interest.
- According
to the Government, the authorities had strived at all times to find a
proper balance between, on the one hand, the applicant’s
interest in having contact with her children and, on the other hand,
the children’s interest in enjoying the good parts of their
contact with the applicant and at the same time being protected from
the negative sides of this contact. In this respect, the Government
underlined that one starting point for the 1990 Act was the child’s
right of contact with his or her parents and not the parents’
right of contact with the child as reflected in the United Nations
Convention on the Right of the Child, in particular, its Article 9 §
3.
- Moreover,
the Government noted that the Court has repeatedly held that its task
is not to substitute itself for the domestic authorities but rather
review under the Convention the decisions taken by those authorities
in the exercise of their power of appreciation (Hokkanen v.
Finland, judgment of 23 September 1994, Series A no. 299-A, p.
20, § 55). In line with this, they stressed that the national
authorities had benefited from direct contact with the applicant and
the children, as well as the family homes, in different situations
and constellations. The contact restrictions had also gained support
from a number of consultations with BUP which had provided several
expert opinions over the years. Furthermore, the Social Council had
carried out their investigations in the case with all due care and
had reviewed their decision, as required by law, every three months.
Thus, the issue of the applicant’s parental ability had been
examined anew frequently and at regular intervals. In the
Government’s view, it would be hard to question the assessments
made by the domestic authorities without having had the benefit of
the insight into the case accrued by these authorities.
- Lastly,
the Government noted that, in November 2008, the applicant had been
granted increased contact rights with her children in that she was
allowed to meet them four times a year for four hours each time.
- Having
regard to all of the above, the Government considered that it was
evident that the domestic authorities’ decisions and judgments
had been taken in the best interest of the children and that they had
been based on reasons that were both relevant and sufficient for the
purpose of Article 8 § 2 of the Convention and within their
margin of appreciation.
2. The Court’s assessment
- 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 (see, among
other authorities, K. and T. v. Finland [GC], judgment of
12 July 2001, Reports 2001-VII, § 151). The Social
Council’s decision, confirmed by the national courts, to
restrict the applicant’s contact rights to her children,
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”.
- 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.
- 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). Account must also
be taken of the fact that the national authorities have the benefit
of direct contact with all persons concerned (see Olsson v. Sweden
(no.2), judgment of 27 November 1992, Series A no. 250, §
90). Thus, it is not the Court’s task to substitute itself for
the domestic authorities in the exercise of their responsibilities
regarding public care and contact but rather to review under the
Convention the decisions taken by those authorities in the exercise
of their power of appreciation (see, for instance, Hokkanen v.
Finland, cited above, § 55; and Johansen v. Norway,
judgment of 7 August 1996, Reports of Judgments and Decisions
1996-III, § 64).
60. Still,
the Court reiterates that, following any removal into care,
stricter scrutiny is called for in respect of any further limitations
by the authorities, for example on parental rights or contact, as
such further restrictions entail the danger that the family relations
between the parents and a young child are effectively curtailed (see
Johansen v. Norway, cited above, § 64, and Kutzner v.
Germany, cited above, § 67).
- Moreover,
as regards the extreme step of severing all parental links with a
child, the Court has taken the view that such a measure would cut a
child from its roots and could only be justified in exceptional
circumstances or by the overriding requirement of the child’s
best interests (see Johansen, cited above, § 84, and
Gnahoré v. France, no. 40031/98, § 59, ECHR
2000 IX).
- Turning
to the present case, the Court notes from the outset that the Social
Council has consistently strived to keep the contact between the
applicant and her children, the children and their father, B., as
well as between the three children. Thus, it is apparent to the Court
that the Social Council has at no point taken any measures to sever
all links between the family members or had any such intentions. On
the contrary, it appears to have continuously tried to find a balance
where the interests of all parties are taken into account to ensure
that the various family members can maintain contact and develop
their relationship in a positive manner. In this respect, the Court
observes that the three children meet each other with their family
home parents approximately once a month, as well as when they meet
the applicant and B. Moreover, B. meets the children twice a year and
the applicant’s mother has also been present at some of the
applicant’s meetings with the children. During the meetings
with their parents, the children and their family homes show photos
and films of their activities to include their parents in their
lives. Furthermore, it would seem that all family members are free to
send and receive letters and postcards from each other. The Court
also notes that the applicant and B. remain the legal guardians of
the children and that the Social Council has taken no measures to
transfer this right to the family homes. In these circumstances, the
Court finds no reason to question that the ultimate goal of the
Swedish authorities is to improve the relationship between the
applicant and her children in order for them one day to reunite or at
least have a good and close relationship.
- As
concerns the limitations on the applicant’s contact rights to
her children, the Court notes that when the children were first taken
into public care in August 2005, the applicant met T. for one hour,
once every two weeks, and spoke with her on the telephone once a
week. She met S. once every third week in presence of the social
services and she saw D. for one hour every week. After she moved to
live with her sister in Göteborg in May 2006, the applicant
travelled to see her children approximately once a month until the
restrictions complained of to the Court were imposed in December
2006. These restrictions, which limited the applicant’s contact
with her children to twice per year, were in place for approximately
two years from the Social Council’s decision of 11 December
2006, upheld by the administrative courts, and until the County
Administrative Court’s judgment of 14 November 2008 when it
decided to increase the contact to four visits per year, a judgment
upheld by the Administrative Court of Appeal.
- The
Court agrees with the applicant that these restrictions were severe
and it does not question that this period was difficult for the
applicant as she would have liked to see her children more often.
However, when deciding whether or not the measure violated the
applicant’s rights under Article 8 of the Convention, the Court
has to balance the interest of the applicant to have increased
contact with her children against the interests of the children to
have a secure and stable environment in which to develop. In doing
so, the Court attaches particular importance to the best interests of
the children which, depending on their nature and seriousness, might
override those of the applicant. In essence, it is the best interest
of the children that is of crucial importance (Johansen v. Norway,
cited above, §§ 64 and 78).
- In
this respect, the Court would like to highlight the following from
the assessments and findings of the domestic authorities and courts.
When the children were taken into public care in 2005, their health
and development had already been harmed by the lack of care in their
home. Thus, they had to be placed in different family homes as one
family home could not provide the care and support that each child
needed. Moreover, from the very negative physical and mental
reactions of the children before, during and after meetings with the
applicant, notably their anxiety, bed wetting, nightmares and the
regression in their development, the domestic courts found that the
applicant’s contact rights had to be limited in order to
protect the children from further harm to their development and
health and to ensure that they would have some stability and calm in
their daily life. This was also found to be necessary so that the
children could begin to evolve in those areas where they were lacking
and to develop positively without the regular set-backs that the
meetings with their mother entailed.
- Moreover,
the Court notes that the children’s father, B. had also
requested contact with them on a regular basis. Since he was their
legal guardian jointly with the applicant, he had the same right to
contact with the children as her. However, it is clear to the Court
that this must have been an added stress factor for the children
since they had very few, if any, memories of B., not having seen him
since their parents divorced in 2003. Thus, in order not to cause too
much anxiety and upset for the children, the Social Council had to
balance the interest of each parent to see their children against the
children’s continued positive development, resulting in fewer
visits for each parent, which the Court finds to be a logical
solution to ensure that the best interest of the children was
protected.
- Here
the Court would like to point out that the children’s own
opinion about how often they wanted to see their mother was obtained
upon request by the Administrative Court of Appeal in the proceedings
where contact was increased to four times per year. They expressly
stated that they did not want to see their mother more than twice a
year and they did not want to see her alone or stay with her. In
particular T. and S., at the time nine and seven years old, were very
negative in their reactions toward their mother and S. even showed
clear signs of fear of his mother. This cannot, according to the
Court, be ignored or trivialised, in particular because it reflects
the negative reactions that the children have displayed since the
initial visits by their mother following their placement in public
care.
- Lastly,
the Court notes that the applicant has been represented by legal
counsel throughout the proceedings at the national level, ensuring
that her interests have been taken into account and protected.
Moreover, it observes that the national courts have recognised,
through the increased contact rights, the improvements in the
applicant’s living situation and in the fact that she has not
intervened inappropriately in the care of her children. In this
respect, it also notes that the Social Council continuously
reconsiders the applicant’s contact rights every third month
and provides her with a written decision, which includes the
council’s evaluation of each child and its reasons for the
decision. Although the applicant could appeal against each of these
decisions, she did not do so until the decision of 11 August
2008 and then the County Administrative Court increased her contact
rights to four times a year. In the Court’s view, it cannot be
ruled out that had she appealed against one of the earlier decisions
by the Social Council, she might have been granted increased contact
rights sooner. In any event, this avenue continues to be open to her
if she is dissatisfied with the Social Council’s decisions.
- All
of the foregoing considerations are sufficient to enable the Court to
conclude that the imposed contact restrictions were taken to protect
the best interests of the children and that this interference with
the applicant’s rights was therefore proportionate to the
legitimate aim pursued and within the margin of appreciation of the
domestic authorities. There has accordingly been no violation of
Article 8 of the Convention.
FOR THESE REASONS, THE COURT
- Declares the application
admissible unanimously;
- Holds by 6 votes to 1 that
there has been no violation of Article 8 of the Convention.
Done in English, and notified in writing on 15 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Power-Forde is annexed to this judgment.
D.S.
C.W.
DISSENTING OPINION OF JUDGE POWER-FORDE
- I
am unable to join the majority in finding no violation of Article 8
of the Convention in this case. Child care proceedings are complex
and a wide margin is granted to the domestic authorities in taking a
child into public care. However, this Court cannot abandon its
supervisory role, particularly where a serious and permanent
interference with the right to respect for family life has occurred.
Once admitted into public care, a stricter
scrutiny is called for in respect of any further limitations, such
as, restrictions on parental rights of access.
- I
have two difficulties with this case. The first pertains to the speed
with and extent to which parental access to the children was reduced
which, for me, raises a serious question as to proportionality; the
second relates to the failure on the part of the authorities to
discharge their positive duty to take measures to facilitate family
reunification (see X v. Croatia, no. 11223/04, 17 July
2008; K.A. v. Finland, no. 27751/95, 14 January 2003; and R.
v. Finland, no. 34141/96, § 89, 30 May 2006).
- During
a difficult period of crisis in her life, the applicant, a vulnerable
and concerned mother, telephoned the social services in May 2005 to
seek help in coping with her three young children—then aged 6,
4 and 3 years, respectively. That she took the initiative in
protecting her children from her own temporary inability to care for
them is an important factor in this case. There was no history of
criminal conduct, substance abuse or sexual abuse but the children
were, clearly, neglected and in need of immediate attention.
Correctly, in my view, the Swedish authorities responded and sought a
temporary care order.
- What
I find disturbing in this case is that within some 20 weeks of that
initial call for help being made, a decision was taken by the social
services regarding long term placement of the children and a
permanent care order was sought. I am aware that the complaint
concerning the making of that order has previously been declared
inadmissible but the complaint concerning the contact restrictions
which flowed therefrom is not. After the permanent order was granted,
the entire family was broken up. Within seven months of that initial
call for help, the three children were separated and sent to live in
different homes. Undoubtedly distressed, the applicant went to live
with her sister but was prepared to travel over 1,000 kilometres
every month in order to see her children. Indeed, she was willing to
do so more frequently but her appeals for increased access were
rejected (§§ 21 and 22 of the judgment).
- To
split up a family is an interference of a very serious nature
(X v. Croatia, cited above, and R. and H. v. the
United Kingdom, no. 35348/06, 31 May
2011) and should only be applied in exceptional circumstances. That
a care order should be regarded as a temporary measure, to be
discontinued as soon as circumstances permit is a ‘guiding
principle’ in this Court’s
case law under Article 8. Any measures implementing it should be
consistent with the ultimate aim of reuniting the natural parent and
the child (see Olsson v. Sweden (no. 1), 24 March 1988, § 81,
Series A no. 130, and R. v. Finland, cited above, § 89).
- In
K.A. v Finland (cited above, § 138) the Court noted that
“the possibilities of reunification may be progressively
diminished and eventually destroyed if the biological parents and the
child are not allowed to meet each other at all or only so rarely
that no natural bonding between them is likely to occur”.
The speed with which the decision regarding long-term placement was
made and the stringent restriction on access that flowed therefrom is
a strong indicator that the possibility of reunification was never,
seriously, considered let alone pursued. On any assessment, there
appears to have been a manifest prematurity in deciding upon the
future of this family. The restrictions imposed at such an early
stage in the proceedings cannot but have significantly hindered any
possibility of reunification and cannot have been consistent with
what the Court’s case law identifies as the ‘ultimate
aim’ of care proceedings.
- Rather
than exploring ways of assisting and supporting the applicant to
parent and care for her children, the authorities’ principal
objective, from the outset, appears to have been the long term
placement of the children and the maintenance of the restrictions
imposed. This, they considered, to be in the children’s best
interests having regard to their initial state of neglect and the
obvious distress which seeing their mother provoked. However, one
cannot but question whether it can ever be in a child’s best
interests to have its established relationship with its biological
mother ruptured so suddenly and contact with her reduced so radically
within such a short period of time, particularly, in circumstances
where the main problem in the family home was one of neglect –
as distinct from serious violence or abuse. By bringing about such
far-reaching and radical changes in the lives of three young children
which saw them, suddenly, deprived of their mother’s care –
(however temporarily inadequate that may have been) – the
authorities cannot but have contributed to the emotional and
psychological distress symptoms displayed by them whenever they met
with their mother. Ironically, it was these very stress symptoms
which were then relied upon by the authorities in support of their
applications for the maintenance of such ongoing restrictions.
- In
accepting such grounds as the basis for maintaining severely limited
parental access, the domestic courts appear not to have considered or
assessed the social council’s own contribution to the
children’s traumatic reaction upon seeing their mother.
Furthermore, at no stage in the proceedings did the domestic courts
hear the children themselves either directly or by way of video link.
Whilst the Court of Appeal in 2008 directed that their point of view
be obtained, there is a manifest want of independence in the manner
in which this ‘evidence’ was ascertained – the
children being interviewed by only one of the parties to the
proceedings (the council), in a non-neutral environment and in the
presence of their substitute carers. The potential for a conflicted
emotional response within the children (then aged 9, 7 and 6) was
evident and yet no measures were taken to facilitate a more
independent expert assessment of their feelings and wishes.
- Furthermore,
the domestic courts appear to have given little weight to the fact
that after the period of personal crisis had ended, the applicant
made a good recovery, found employment and stabilised her life
situation. She complied, fully, with a request by the social council
to undergo neuropsychological assessment. Despite the fact that the
result of this assessment stressed that such impairment of her
capabilities as existed ‘could hardly be sufficient to
disqualify her as a parent’ – there has been no
increase in parental access. She currently sees her children for just
16 hours per year (§ 32 of the judgment).
- As
in the case of R. v. Finland (cited above), I find that
the picture which transpires from the facts of this case is one
of ‘a determination on the part of the social authorities not
to consider reunification’ of the applicant with her children
as a serious option, instead firmly proceeding from a presumption
(reached with significant speed) that the children would be placed in
long-term foster care with severely restricted parental access. It is
clear that when the applicant first contacted the social services,
this family was in need of care and support. However, once they
became involved, I cannot discern any serious and sustained effort on
their part directed towards facilitating a possible family
reunification, such as, could reasonably be expected for the purposes
of Article 8 § 2 of the Convention.
