'The Trip to
Nowhere'
Family Policy in
the Swedish Welfare State
Analyzed by Means
of the Comparative Law Method
Immanent in the
European Convention on Human Rights
By
Professor emeritus
Jacob W.F. Sundberg
The Stockholm Institute
of Public and International Law
No 106
|
This
booklet was published in 1995. It is published here with the kind consent of
the author. |
Contents
1.
The Trip to Nowhere
2.
The Social Bureaucracy
3.
The ius docendi Affair ax Catalyzing Agent
4.
The Comparative Law Method Immanent in the European Convention
5.
The Catholic Teaching About Rights
6.
Swedish Cases of Taking into Public Care as a Matter for the European
Dialogue
7.
Concluding Remarks
1. 'The Trip to Nowhere'
In the beginning of the 1970s Swedish Family Law suddenly hit a crisis.
What was old was thrown overboard and the course was changed towards completely
new directions. In my 1969 book named "The Changing Family Law" (Familjerätt
i omvandling) I had sensed the crisis coming[1]
and at Tagungfiir Rechtsvergleichung in Regensburg, September 24-27,
1969, 1 was able to tell about the big change of direction on the basis of the
Directives for the Family Law Experts of August 15, 1969, generally attributed
to Mr Carl Lidbom.[2] In her
contribution to a Festschrift in 1993, Professor Mary Ann Glendon took
the
I was puzzled by what he seemed to be saying about the law of
What was strange about this change of direction was that among Swedish
lawyers nobody seemed to know what it was good for. Professor Anders Agell did
indeed summarize the situation very well when headlining one of his articles in
1978: 'the trip to nowhere'.[4]
Swedish lawyers did not understand what was behind the development, or if they
did, at least they felt compelled not to tell what they understood. Surely, a
weighty factor was the burden of the haegerstroemian Uppsala School of
Scandinavian Realism.[5]
Lawyers were silenced by the
Consequently, the critical discussion of the matter came to be found in
places where Swedish lawyers were unaccustomed to look, viz. in the Comparative
Law dialogue that was published in learned works and periodicals outside of
Comparative methodologies ... not only assist us in seeing what remains
invisible to us because we know it so well, but aid us in achieving a critical
stance toward what we have always taken for granted.[6]
It was in this environment that I myself, having finished "The
Changing Family Law" and left the Chair of Family Law for the one of
Jurisprudence, chose to publish my later family law contributions,[7]
and I was happy to receive a positive response from Professor Glendon herself:
his writing - with its good-humored provocative sallies, its unexpected
juxtapositions and comparisons (
But, of course, it must be granted that the critical discussion that has
been carried on in learned works and periodicals abroad, has not been able to
light many candles in
What made the invisible visible was primarily the collapse of high tax
society under the attacks of the Socialist Minister of Finance, Mr Kjell-Olof
Feldt, and Stig Malm, the top boss of the labour union movement, killing the
holiest cows of that society by invectives such as "rotten" and
"perverse", all done at a famous occasion on November 23,1988.[8]
After that it was said with increasing sincerity, that the societal vision of
the Social Democrats meant a system of high taxation that was a goal per se.
By hyper-intensive taxation money should be brought into the government
coffers in order to be transferred therefrom to more worthy societal groups by
means of an enormous social bureaucracy.
Consequently, today perhaps there are more than a few comparative law
experts capable of discussing the 'trip to nowhere'. If we have not heard much
from them yet, that may have different explanations. But what is now visible
for all to see makes it also possible to discover certain patterns. And those
patterns suggest that the 'trip to nowhere' was in fact a trip not without a
goal.
2. The Social
Bureaucracy
In this perspective you discover the central and dominating role of the
social bureaucracy in the Social Democratic building.
In 1950, the personnel employed within the central administration for
the social welfare activities of the Swedish municipalities
("kommuner") was altogether about 2.200 people, all municipalities
included. At the end of the 1970s, the figure was 13.000. Among these about
half had been educated at a university college for social affairs (socialhögskola)
or been given a similar university education. This was considered to have
given them a desirable psychological expertise.[9]
To this should be added the so called 'family care principle' (familjevårdsprincipen),
by which it was understood that all communal social welfare concerning the
one and same person or family should be handled by one and same social welfare
officer. The principle was believed to entail a better consideration of the
totality of the situation of the social welfare client.[10]
It certainly meant giving to the social workers an enormous power over their
clients.
During the preparations of what was going to be the Social Welfare Act,
1980 (SFS 1980 No 620) a new view of the task happened to surface which could
inspire in a great many ways. The time had come to get rid of 'thinking in
symptoms' and to arrive at a totality-perspective, a perspective including not
the least "the relationship between the Individual and Society".
Handling social welfare was in the final resort "a political
activity" and the goal was "a nivellation between the living
conditions of various groups".[11]
Subsequently turning to the 1980 Act with Special Provisions on the Care of
Young Persons, known by the acronym LVU,[12]
the basis of those takings into public care that later were to call for
so much attention in Strasbourg, and having these ideas in mind, it was
possible to discover a sharper voice. The danger to the child's health that was
a condition for the taking into public care, need not be serious, and no
detrimental effects had to be established. The only thing that the powerful
social bureaucracy needed to interpret was "the psychiatric
apartness" of the parents (their special mental character) and their
"personal disposition" as it was mentioned when examples were given.[13]
The expansion of the social bureaucracy entrusted with these tasks took
place during the 1970s. The formation of the cadre was mandated to the
university colleges for social affairs in
I will simply refer readers to the lecture on The Welfare Society, that
I used to give during the 1980s within the framework of the course in
Jurisprudence at the
In the case Ulla Widén v. Sweden[17]
- the applicant being the lady from the islands of Åland whose children
were to be taken into public care because she was no good at cleaning her
apartment - this special feature of the social bureaucracy was brought into
evidence. In the local newspaper Jönköpings-Posten of
The Marxist element in the new social bureaucracy gives a sizeable
explanatory value to the comparison with the role of the Marxist ideas within
the once so frightening Socialist Camp, now defunct, when it comes to
interpreting what happened in
The theoretical explanation ... why this legislation looked so totally
different from the one that was introduced during the 1920s ... [has something]
to do with the dynamic view of the evolution: that Man's nature is reformable,
that as time goes by it shall be possible to create Socialist Man, and that
Socialist Man shall be capable of being eventually so improved that he can be a
member of Communist Society. In order to achieve this, what is important is to
protect the child from detrimental influences, and the detrimental influences
stem mainly from the Family. Consequently you have to, at least, supervise the
Family closely, so that it becomes the ultimate instrument of the State Power.
This is the basic thinking. But it is also part of this that if the family
happens to peddle the wrong message that is not in harmony with that of the
State Power, then you have to deprive the family of that influence. The
simplest way to do this is by taking the child into public care, or also by
preventing the situation from occurring by seeing to it that the family
influence remains as little as possible. The less number of hours and minutes
that people spend together in the family, the less chance there is that the
evil wrongful influence is exercised that entails the unhappy consequences.[21]
3. The ius docendi Affair as Catalyzing Agent
What has been said in the past about the role of the social bureaucracy
also gains in credibility when the ius docendi affair (1988-1990) is
analyzed.[22] It has
produced an extremely interesting period document in the shape of the Memoranda
of the Working Group[23]
showing what was believed to command sympathetic attention, at the same time as
the choice of points of attack provides helpful information about why the
action was started. The themes that the Group felt to be well suited to form
the basis of the attacks were Marxism and its relationship to genocide, and the
relationship between the Uppsala School of Scandinavian Realism and the Law of
Nature.
I find it extremely difficult to arrive at any other understanding than
the point of attack of 'Marxism and genocide'
being brought about by my presidency, at that time, of the International
Commission of Inquiry into the 1932-33 Famine in
The Working Group was of the opinion that Section 2 in the Swedish
University Law (Högskolelagen, SFS 1977 No 218) was using the very
restricted Uppsala School notion of 'science'[26]
and that consequently all teaching that could not be classified as 'scientific'
in the Uppsala School sense was impermissible eo ipso, including
everything that smelled 'natural-law-renaissance' which was the term commonly
used in Swedish legal circles to identify the European Convention on Human
Rights. The Working Group could hardly have ignored that this line of attack
must release a flood of criticism from other seats of learning, e.g. the one
from Professor Hannu T. Klami in Uppsala, Professor Gerard Radnitzky in Trier
(Germany), and Dr Virginia Black at Pace University (New York). The reason why
nevertheless this line of attack was chosen was no doubt that thereby it would
be possible to have a swipe at something that was truly relevant to the circles
behind the ius docendi action, viz. the fact that the teaching about the
European Convention - the so called natural-law-renaissance - during the Spring
Term of 1988 had been integrated with my teaching of Jurisprudence at the
University of Stockholm.
What made this so pointed was the case Olsson v. Sweden[27]
which at that time was pending in the European Court of Human Rights. The
excitement which this case caused in Cabinet and Party quarters can be studied
in Ms Yrsa Stenius' editorials in the leading Socialist Party daily Aftonbladet
following the advance of the case from the Commission to the Court. The
fact that the Prime Minister's speech-writer, Mr Par Nuder, had himself
immatriculated to follow my above-mentioned course certainly displays interest,
and so do the reports that the President of the Social Democratic youth
organization SSU, Ms Anna Lindh, turned up in the audience on
In September 1987, hearings were being held in the Olsson Case and they
provoked angry attacks by Ms Yrsa Stenius. Judgment in the Case was rendered
the week after my lecture on the European Convention. The judgment caused
renewed attacks, and now the Working Groups future pet subject surfaced, viz.
the pretended "accepted borderline in
Consequently, it is better than an informed guess that it was exactly in
the social bureaucracy that my lectures were experienced as a threat.
4. The Comparative Law Method Immanent in the European Convention
If in this way it is possible to establish that the social bureaucracy
and the European Convention - each for itself and with extra emphasis when they
collided - have been important factors in the development, it remains
nevertheless to analyze and evaluate what it was that in fact did take place.
We must see what remains invisible to us because we know it so well, we must
arrive at a critical stance toward what we are used to take for granted. In
this matter we have suddenly received some extra help by Comparative Law, in
fact by the Comparative Law method which is immanent in the European Convention
on Human Rights.
Jurisprudence in Swedish is termed allmän rättslära, which is our
counterpart to the German expression Allgemeine Rechtslehre. That again
means a general teaching about law, law as a generalized phenomenon. But when
speaking about law as a generalized - non-national - phenomenon, it is
difficult to do so without resorting to Comparative Law, to some kind of
comparative method. This received its formula already at the end of the 19th
century as a result of the endeavours of the German Professor Adolf Merkel.
Just as each single discipline of the Law gives birth to a General Part
at a certain degree of development ... similarly, out of all branches of legal
science, in other words, out of its totality, there should be developed a
General Part, in which the unity of Law finds its expression and is fully
brought about.[35]
A legal philosophy conceived this way - or an allmän rättslära for
lawyers as my students were taught to say in
The particular nature of the European Convention forces a European
systematization and a European conceptualization that is independent
-autonomous - in relation to the national legal systems, the standards of which
the Convention organs are created to supervise. In order to arrive at these
European autonomous legal notions method is called for. In our connection, the
comparative method is of particular interest. The use of that method by the
In this way, modern comparative law research gets a practical center
exactly in the European Convention and the case law produced under its auspices
may be studied as a European dialogue. The difficulty does then not lie in
satisfying the
If somebody is capable of overcoming this state of shock and is willing
to look closer into what this European dialogue means, he will find that it has
the same merits as any Comparative Law dialogue in general, but beyond that
also many other advantages. To these should be counted that it is possible to
take advantage of the merits in a quicker and much more immediate way than by
the hard-won extensive international reading that only can be achieved in those
grand temples of learning that are the big libraries. The Swedish cases moving
through the Convention machinery in Strasbourg all have a Swedish pre-history
allowing insight into the problems, and the cases are followed intensively by a
whole platoon of government officials and advocates and others familiar with
the history. The fact that seemingly a professional Swedish discussion
afterwards is missing is only an illusion. It is explained by certain mass
media circles and certain bureaucratic circles - sometimes even dancing hand in
hand - finding it being to their advantage of having so little discussion as
possible of the cases lost in
5. The Catholic Teaching
About Rights
Evidently, it is possible to make use of the comparative method in order
to see things that otherwise would remain invisible for us, and to arrive at a
critical stance toward what we have always taken for granted - to quote Mary
Ann Glendon. But if so, the legal system to compare with must not be situated
too close on the legal map. Therefore, let us take our reckoning by using the
Catholic world, to be precise, the Roman Catholic teaching about Man's rights
and duties. This is a heavyweight doctrine in a world housing about a billion
Catholics[42] and the
center of gravity lies in the densely populated Central and Southern European
countries that now make a majority in both the European Union and in the
Council of Europe. Immigration has brought the doctrine also to
There is no room in this paper to account for the full history of the
relationship between the Roman Catholic church and the secularized doctrine of
human rights.[43] I will
therefore restrict myself to the teaching in the matter of the present Pope - vicarius
Christi -, i.e. the former Archbishop in Polish Krakow, Karol Wojtyla, as
Pope known as John Paul II. His pontificate (1978 -) has been marked by the repudiation
of compromise with the Communist regimes and I do not think it is too much to
say that he has decisively contributed to the collapse of the Socialist Camp
and the dissolution of the
The point of departure must of course be what the Pope has taken over
from his predecessors, viz. the idea of "1'ordre absolu des êtres et des
fins" which is the basis of all societal authority and which imposes upon
it fundamental limits. The fundamental relations and the objective rights are
the expression of this Order which makes the people look to each other and
makes them look towards God. This Order begins in the mother's womb with rights
and duties born from the fundamental relation which is motherhood and
fatherhood.[45] André-Vincent explains:
Dans sa dialectique des droits fondamentaux Jean Paul II est toujours
polarisé par la vie des personnes. II fait appel à la verité de leur nature ;
et elles apparaissent dans l'ordre de leurs relations fondamentales; dans leurs
families, dans leur communauté de travail, dans leur nation. Or cet ordre
fondamental est à la fois être et devenir.[46]
Si ces droits fondamentaux constituent des droits naturels c'est au sens
d'un dû objectif qui appartient à l'homme en vertu de sa nature. "Ce droit
objectif" est un droit concret: il est determiné par les conditions de vie
; c'est la nourriture dûe par les parents aux enfants, l'éducation dûe par la
famille et par la société, le travail et la participation aux fruits du travail
dûs par l'employeur à son employé, par la société à la famille.
Ce dû existe avant toute decision législative ou judiciaire. Il y a des
relations objectives de justice entre les êtres humains avant même qu'il y ait
des lois pour en determiner les contours et attribuer à telle ou telle
catégorie de citoyens des droits subjectifs. ... Avant 1'attribution de ces
droits existent ces relations de justice et le droit objectif qui les determine....[47]
"Le premier droit de l'homme est le droit à la vie." Et le moment
de son apparition est le commencement de tous ses droits. Or c'est dans
1'instant de sa conception qu'apparait ce commencement. Le combat pour la
justice commence là.[48]
Tous les droits fondamentaux peuvent être saisis dans le droit à la vie tel
qu'il apparaît initialement et se développe dans la famille.[49]
La famille est le berceau de la liberte comme elle l'est d'abord de la vie.
La liberté de l'homme est le fruit de cette culture qui intéresse toute la
société et qui est donné d'abord pour chacun dans sa famille. Parlant des
droits de 1'enfant Jean Paul II voque immédiatement les droit et devoirs de la
famille: les droits et devoirs de 1'Etat ne viennet que subsidiairement en cas
de défaillance du cercle familial ...[50]
In the rights of the family is included the right to educate the
children within the family.
The right and duty of parents to give education is essential, since
it is connected with the transmission of human life; it is original and
primary with regard to the educational role of others, on account of the
uniqueness of the loving relationship between parents and children ; and it is irreplaceable
and inalienable, and therefore incapable of being entirely delegated to
others or usurped by others.[51]
Même si les parents doivent se préparer avec beaucoup de soin à accomplir
ce devoir et ce droit dans la mesure de leurs forces, il n'en reste pas moins
que, dans la structure de la société moderne, la fonction éducative depasse
bien souvent, semble-t-il, les possibilités et la préparation de la
famille, surtout en raison de l'énorme masse de connaissances qui constituent
aujourd'hui le patrimoine culturel... II est donc indispensable que, dans le
domaine éducatif, il y ait une collaboration complémentaire et subsidiaire de
la société, une collaboration qui se réalise principalement dans 1'école et par
le moyen de l'école,[52]
This means that the role of the school is subsidiary, it is always
exercised in loco parentis. In Familiaris consortio this was put
in the following way:
However, those in society who are in charge of schools must never forget
that the parents have been appointed by God himself as the first and principal
educators of their children and that their right is completely inalienable.[53]
The family is the object of protection in the Charter of the rights of
the family,[54] and
Art. 10 of the Charter explains:
Remuneration for work must be sufficient for establishing and
maintaining a family with dignity, either through a suitable salary, called a
"family wage", or through other social measures such as family
allowances or the remuneration of the work in the home of one of the parents;
it should be such that mothers will not be obliged to work outside the home to
the detriment of family life and especially of the education of the children.
In Laborem exercens there will be found a call for "a social
re-evaluation of the mother's role", requesting that society should
"make it possible for a mother - without inhibiting her freedom, without
psychological or practical discrimination, and without penalizing her as
compared with other women - to devote herself to taking care of her children
and educating them in accordance with their needs, which vary with age."[55]
It is easy to see that this message had a point against the then
Communist regime in Poland which this Polish pope had experienced himself and
which regime, by its own family law philosophy, forcefully tried to destroy the
Catholic family as being the nucleus in the resistance to Communism (cf supra
page 6). But it is also possible to see the point against many of the Swedish
innovations of the 1970s, which more or less hiddenly mirrored the same
philosophy on which the Polish regime was based. The confrontation has come to
light in the case of the teaching at home, the teaching of religion, corporeal
chastisement, the taking of children into public care pursuant to LVU, and many
other matters.
As a result of the examination of the Swedish system in
6. Swedish Cases of Taking into Public Care as a Matter for the European
Dialogue
In a number of cases during the 1980s about the taking of children into
public care focus has been set with increasing intensity on the social
bureaucracy, and the system has received comments from lawyers all over
The first cases to attract attention concerned the very decision to take
into public care and it appeared that in those cases the social bureaucracy in
fact had been a bit too enthusiastic about its political role. Even if the way
the parents defended themselves by legal proceedings breeded ill will in the
bureaucracy, in Strasbourg the cases seemed to evidence relatively clear
transgressions and the Swedish Government settled the cases with substantial
indemnities being paid to the victims.[57]
The sequence of cases that was begun by Olsson in the
A conspicuous difficulty is to be found in the differing points of
departure, different in legal character, when making an examination under Sec.
5 of LVU whether the public care should be discontinued, and when examining
under Sec. 28 of the Social Welfare Act whether a child should be allowed to
leave a family home [by this term is meant a foster home]. The fact that these
decisions have to be taken in different proceedings does create great problems,
see e.g. SOU 1986:20 pp 340-345 and DsS 1987:3 pp 124-126. As a matter of fact,
being aware of these problems could lead to an inclination of the relevant
authorities, having to consider the discontinuation or not of the public care
under Sec. 5 LVU, to bring into the picture also circumstances that rather are
of relevance in the application of Sec. 28 of the Social Welfare Act.
The
It is the youngster's need of treatment that shall determine the length
of the care. If there is no longer any need for exercising the special powers
given by LVU, the care shall be discontinued. The fact that a child who has
been taken into public care, feels afraid for having to leave the family home
[foster home] and possibly may suffer damage by a removal will have to be
considered in the course of the examination under Sec. 28 of the Social Welfare
Act.
When Ms Gro Thune was pleading the case Rieme v. Sweden[59]
she developed what this meant:
The four Swedish cases I mentioned at the outset [Eriksson,[60]
Nyberg,[61]
Rieme,[62]
and Olsson 2[63]]
have all related to this situation and have exposed a number of
problems....
The Swedish system has established two separate procedures to deal with
the child's situation in cases like the present:
First, an initial one, in which social authorities and, if necessary,
also the administrative courts, test the conditions of the natural home, and
only these, in order to see whether public care can lawfully be maintained;
Second, a subsequent one, whereby the same organs test whether
separating the child from his foster home would create a risk, which is not of
a minor nature, of harming its physical or mental health - in which case a
prohibition on removal is issued as a provisional measure - and I underline
this - either for a fixed period of time with the possibility of renewal or
until further notice....
The complexity of this decision-making process would seem likely to
increase any uncertainty as to the child's final home and in this way also the
stress on the parent-child relationship. Even more important, the existence of
two entirely separate proceedings also appears apt to cause a loss of time.
This must be especially unfortunate in these child-care cases since the
possibilities of successfully reuniting child and parent is likely to diminish
rapidly as time passes. This is particularly so in cases where, as in the
present, the child is in the crucial years of early childhood.
Ms Siw Westerberg has given the matter a very pregnant formulation:
every year, in a number of cases of taking children forcefully into
public care, the sequence goes like this: When the parents after years of
fighting succeed to have a court order the discontinuation of the taking, the
social authority immediately issues a ban on removal. When the parents ask for
an opportunity to meet the child, they are met with a ban on visits and/or a
prohibition for the child to even visit the parental home, and, above all, in
many cases of prohibitions of removal, the social authority and the foster
parents forbid the child to be alone with its parents even for only a short
while.[64]
Ms Gro Thune looks at the matter in a European perspective:
A situation where the authorities with one hand open the door for a
return of the child and then with the other immediately close it, cannot but
increase the uncertainty and conflict between the mother and the foster
parents. Such a floating situation, where the possibility of lifting the
prohibition on removal depends on the extent of the contact between the child and
the mother can only encourage a constant competition between her and the foster
parents as to actual access. The foster parents wanting to keep the child would
be expected to avoid access. No-one can foresee the outcome and no-one can tell
the child what is actually going to happen.[65]
When pleading in Rieme, Ms Gro Thune hits the head of the nail:
The Swedish situation seems further complicated by the absence of
sufficient common ground between the courts and the social authorities as to
the approach to these problems.
The point of departure for the law, as it appears from the preparatory
works and the judgments of the domestic courts, seems to have been that, once
public care has ceased, the social authorities should in principle attempt to
reunite the child with its natural parents. Sometimes a time-limit is fixed for
the reunion, often it is not.
The social authorities for their part, basing themselves on
psychological and clinical research, seem to consider that once a child has had
time to root himself in a foster home he should be allowed to remain there also
after public care has terminated.
Interest for the Swedish cases in Strasbourg in this field is
consequently focus on the measures taken by the social authorities once a
judgment has been given[66]
or a decision taken,[67]
involving a prohibition of removal and bans on visits a: access generally, at
times in fact also prohibitions to phone or ha' correspondence by mail.[68]
Already at the time when the Eriksson Case was being considered in the
Commission, Ms Gro Thune let be known her surprise:
Finally, I find it very surprising that under the Swedish system a
Social Council can in practice disregard and even obstruct the judgment of the
In the dissenting opinion which was formulated by the French judge
Edmond Pettiti, with the Austrian judge Frans Matscher and the Italian judge
Carlo Russo concurring, in the case Olsson v. Sweden No 2, the same
criticism was voiced very keenly:
The social welfare authorities displayed what was almost contempt both
for the national courts and the
The way the European system has been constructed the examination would
largely focus on what had been the legal duty of the social welfare
authorities in this situation, and what had been their real intentions behind
the measures taken.
In so far as the restrictions on access were concerned, which sabotaged
the reunion of the family, the position of the Swedish Government was
untenable, at least until the arrival of lex Eriksson or SFS 1990 No 52:
the 1990 Act with Special Provisions on the Care of Young Persons[70]
(granted that the Swedish Government Agent in Strasbourg attempted to save the
official position by a very strained line of argument) inasmuch as the Supreme
Administrative Court in RA 1988 p 271 had declared that the restrictions
on access were totally lacking in legal foundation during the time when the
prohibition on removal was in force. The Swedish authorities had thus kicked
the ball into their own goal.[71]
In the matter how the social welfare authorities had handled the
prohibition on removal, it was generally assumed in
81. As for the remaining aspects of the implementation of the care
decision, the Court would first observe that there appears to have been no
question of the children's being adopted. The care decision should therefore
have been regarded as a. temporary measure, to be discontinued as soon as
circumstances permitted, and any measures of implementation should have been
consistent with the ultimate aim of reuniting the Olsson family.
Having this for a point of departure the Court then turns to an
examination of what the social welfare board had done.
In point of fact, the steps taken by the Swedish authorities ran counter
to such an aim. The ties between members of a family and the prospects of their
successful reunification will perforce be weakened if impediments are placed in
the way of their having easy and regular access to each other. Yet the very
placement of Helena and Thomas at so great a distance from their parents and
from Stefan ... must have adversely affected the possibility of contacts
between them. This situation was compounded by the restrictions imposed by the
authorities on parental access.
Ms Gro Thune touches the same issue in her concurring opinion added to
the Commission Report in Rieme:
Accordingly, the prohibition on removal, which is defined and understood
as a temporary short-term measure, was implemented with the obvious intention,
on the part of the social authorities, not to keep it in force for a
short time, but rather the contrary. This, in my view, is most objectionable in
the present case.[73]
Ms Gro Thune provides a sketch of principle for what should be the right
solution when it is not intended that the foster parents should adopt the child
; i. e. at that moment
active steps must be taken to prepare a transfer of the child to the
natural parents within a fixed time limit. Such a time limit should normally
not exceed one year. Accordingly, a prohibition on removal which has been
enforced for more than one year will normally amount to a violation of Article
8 of the Convention.[74]
Of course, when what they have done comes under scrutiny in
In the judgment in the Olsson No 2 Case the majority discusses the issue
(making due reference to its position in the then recent Rieme Case[75])
in the following terms:
the lifting of the care order implied that the children should, in
principle, be reunited with their natural parents. In cases like the present,
Article 8 includes a right for the natural parents to have measures taken with
a view to their being reunited with their children... and an obligation for the
national authorities to take such measures.[76]
Whilst national authorities must do their utmost to bring about such
cooperation [of all concerned], their possibilities of applying coercion in
this respect are limited since the interests as well as the rights and freedoms
of all concerned must be taken into account, notably the children's interests
and their rights under Article 8 of the Convention.[77]
Evidently, the idea is that one cannot force the child into being
together with its natural parents. What impedes the 'being together' may then
be that the child does not want to be together with the natural parents, and
that turns the main question into being how to identify what the child really
wants, the persistence of this will, and its value. There may be another
impediment in the fact that the natural parents are not willing to conform to
the debasing conditions established by the social authorities for being
together with the child. The main question then turns out to have two sides; on
the one side whether it is possible to find détournement de pouvoir on
the part of the social authorities, on the other side what personal integrity
must be accorded to the parents.
The matter of the child's will is mostly a question about what
influence over the child that the social welfare officers and the foster
parents have succeeded to appropriate for themselves. The heart of the matter
was nicely illustrated in Advocate Lennart Hane's pleading before the
The question is from which time and from which age the child's wishes
can be considered without interference from social workers and foster parents.
In 1978 Susanne surely had no personal wishes [she was born in 1976], not even
in 1981, 1982 or 1983. In 1984 and 1985 she could surely be affected by the
grown-up people around her. At that time she wanted to pass the night at the
father's home when speaking to the father. But she refused when speaking to the
social officer. The social authorities accepted the child's so-called wishes so
long as the child was under the influence of the social administration. The
child wanted, of course, to be loyal to everybody.
Mr Loucaides said that he cannot accept that a child at the age of eight
to thirteen has to decide when the removal from the foster home shall take
place. He points out that it is not advisable to lay such a burden on a child
and that it is extremely difficult to know what a child really wants.
It surely requires much courage for the child to show his or her real
will when the question is whether the child shall abandon the home where he or
she is living. Susanne has not that courage. She is very passive and inactive.
If the social administration had given her the advice to reunite with the
father the reunion would have taken place within a short time and without
difficulties.[78]
The matter of the attitude of the parents is often raised. In the
case of the family Olsson it was much dramatized. The Administrative Court of
Appeal already ha in its judgment of
the judgments which were given ..., in the transfer of custody
proceedings, clearly take the view that the main responsibility for the
necessary preparations not having been made lay with the applicants. ...
Nevertheless, the applicants, although they knew that the access restrictions corresponded
to the children's wishes, refused to accept them. They visited the children at
the foster homes only twice (See, mutatis mutandis, Powell and Rayner v.
United Kingdom (A/172): (1990) 12 EHRR 355, para. 41) and also neglected other
possible forms of contact, such as contact by telephone. Rather than follow the
course of co-operation recommended by the courts, the applicants instead chose
that of continuous hostility: again and again they demanded access at their
home without the foster parents' presence, which, as they were well aware, was
unacceptable not only to the social welfare authorities but also to the
children. In addition, they responded to the failure to comply with their
demands by lodging complaints with the police and numerous appeals (See paras.
32-34, 46 and 50-52 of the judgment).[79]
Ambassador Hans Corell, who was the Government Agent in Olsson published
a few months after the rendering of the judgment in that case, newspaper
article which i.a. set the focus on this question.[80]
Another observation is that the files sometimes show that a certain
antagonism has arisen between the biological parents and those persons within
the social administration who handle the case. ... [Nevertheless one has to
harden oneself against provocations or other attacks from the side of the
parents or - something that I have noted with surprise - from those who should
know better, viz, the parents' counsel. In one of the cases with which I have
had contact, the antagonisms were so big that it cannot be excluded that
certain measures may have been tainted by irrelevant considerations...
One question that I have found reason to raise in this matter is: What
role are counsel to play in these cases, in particular counsel for the parents?
Shall they try to bridge possible differences between the parents and the
social authorities, or shall they fan the conflicts? Here I find reason to
agree with much of what Dr Alcalá thinks.[81]
Within the Legal Department of the Ministry of Foreign Affairs, we have even
put the question to ourselves if the rules in force in the Act on
Administrative Procedure are appropriately drafted when counsel can behave in
such a way that the gulf between parents and authorities becomes wider and
wider.
To the Heads of the Legal Department in the Ministry of Foreign Affairs
who normally have been Government Agent before the Convention organs i
Strasbourg (as well as exercised a decisive influence when the Swedish member
of the Commission has been about to be appointed), an overbearing attitude
towards those who consider that their rights have been trampled upon, certainly
comes naturally. This attitude is not unlike the one appearing when a common
man is contradicting a police witness in a Swedish court: the police witness
always enjoys an added credibility when faced with a common man. Consequently,
the burden of proof weighs heavily on somebody who picks fault with the
authorities' way of handling the case. The Swedish member of the Commission,
Justice Hans Danelius, who was for a long time such a Head of Department in the
Foreign Ministry, mirrors such an attitude rather well in his dissenting
opinion in Rieme, three more members of the Commission concurring: