EUROPEAN COMMISSION OF HUMAN
RIGHTS DECISION AS TO THE ADMISSIBILITY OF
Application No. 12574/86 by Birgitt and Lars Erik NYBERG against
The European Commission of Human Rights sitting in private on
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
Mr. C. L. ROZAKIS
Mrs. J. LIDDY
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 9 June 1986 by Birgitt and
Lars Erik NYBERG against Sweden and registered on 2 December 1986 under file
No. 12574/86;
Having regard to:
- the first report provided for in Rule 40 of the Rules of Procedure of the
Commission;
- the Government's written observations dated
- the applicants' written observations in reply dated
- the second report provided for in Rule 40 of the Rules of Procedure of
the Commission;
- the submissions of the parties at the hearing on
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they appear from the parties' submissions, may be
summarised as follows:
The applicants are Mr. and Mrs. Nyberg, born in 1944 and 1954 respectively.
Mr. Nyberg is a Swedish citizen and Mrs. Nyberg is a German citizen. They
reside at Neukirchen-Vluyn in the Federal Republic of Germany. Before the
Commission the applicants are represented by Mr. Lennart Hane, a lawyer
practising in
The applicants have two sons: Björn born in 1981 and Ralf born in 1984.
On 3 December 1981 the Social District Council No. 6 (sociala
distriktsnämnden nr. 6) in Stockholm decided to take Björn into care pursuant
to Sections 25 (a) and 29 of the 1960 Act on Child Welfare (barnavårdslagen).
On 23 February 1982 the County Administrative Court (länsrätten) of Stockholm
decided to take Björn into care under Section 1 para. 2 sub-para. 1 of the 1980
Act with Special Provisions on the Care of Young Persons (lagen med särskilda
bestämmelser om vård av unga). The reasons for the care order were that the
mental state of the parents involved a danger to Björn's development. Björn was
placed in a foster home at Skirebo outside Jönköping on 8 October 1982.
On 25 October 1982 the applicants submitted a request to the Social Council
that the care of their son be terminated. The request was rejected by the
Council on 16 June 1983. The applicants' appeals to the County Administrative
Court, the Administrative Court of Appeal (kammarrätten) and the Supreme
Administrative Court (regeringsrätten) were unsuccessful. The Supreme
Administrative Court refused leave to appeal on 12 January 1984.
On 5 July 1984 the applicants introduced an application (No. 11180/84)
before the Commission alleging inter alia that the refusal to return their son
to them was a breach of Article 8 of the Convention. After having obtained the
Government's and the applicants' written observations on the admissibility and
merits of the application, the Commission declared the application inadmissible
on 5 March 1986. The Commission stated in its decision that the refusal to
terminate the care order, although constituting an interference with the
applicants' rights under Article 8 para. 1 of the Convention, was justified
under the terms of paragraph 2 of Article 8 as being necessary in a democratic
society for the protection of the health and rights of others.
On 11 September 1984 the applicants requested the Social District Council
No.
On the same day the County Administrative Board (länsstyrelsen) of the
County of Stockholm asked for the Social Council's opinion on account of the
applicants' request for an extended right to contact with their son. On 29
November 1984 the Social Council in its opinion to the County Administrative
Board stated that the applicants should be given the opportunity to meet their
son every five weeks. The Social Council did not make a decision under Section
16 of the 1980 Act with Special Provisions on the Care of Young Persons, which
regulates the right of parents to have contact with a child taken into public
care.
The applicants complained to the County Administrative Board which on 7
March 1985 instructed the Social Council to investigate and decide the matter
urgently. The County Administrative Board emphasised that it was important that
the Social Council, in case its opinion differed from that of the parents as to
the frequency of their contact with the child, make a decision under Section 16
of the 1980 Act. As the parents can appeal against such a decision it gives
them the opportunity of having the question decided by a court.
From the investigation made by the social authorities, which was completed
on 24 September 1985, it appears that in November 1983 the parents complained
that they were not allowed to see Björn often enough. It also appears that
attempts at that time were made to reach the applicants by telephone but with
no result since their telephone had been disconnected. In December 1983 the
applicants did not turn up at a meeting with Björn since Mrs. Nyberg who was
pregnant had gone to Germany to give birth to the child. In July 1984 Björn's
foster parents received a post card from the applicants saying that they had
returned to Sweden and wanted to meet Björn as soon as possible. During their
stay in Germany they had written a few letters to Björn and had talked to him
over the telephone on a few occasions. The applicants met with Björn in
September 1984. It was then decided that they should see him every five weeks.
On 3 October 1985 the Social Council decided that Björn could meet his
parents one day every three weeks at a place chosen by Björn's parents but not
at the foster home, and that a special contact person (kontaktman) should be
present at the meetings.
On 19 December 1985 the Social Council reviewed that decision. A new
investigation had been carried out in which it was concluded that Björn's
frequent visits to his parents in Stockholm affected him negatively. Since the
Social Council's decision Björn had visited the applicants on three occasions
together with a contact person. The Council now decided that the meetings
should take place every three weeks, alternately at the parents' home and the
foster parents' home.
In January 1986 the applicants brought an appeal against that decision but
withdrew it in view of the Council's decision to terminate the public care of
Björn.
In the meantime, on 19 October 1984, the applicants submitted a further
request to the Social Council that the care of the son be terminated. On 23
January 1985 the Council requested a child psychiatric opinion which was
received on 23 June 1985. The Council also found it necessary to supplement the
investigation with a psychiatric opinion on the applicants and requested such
an opinion in April 1985. The opinion dated 7 June 1985 was received by the
Council in June 1985. It was issued by an assistant chief doctor at the Enskede
Skarpnäck Psychiatric Institute.
The child psychiatric opinion, which was issued among others by a
specialist in child psychiatry at the Children's and Juveniles' Psychiatric
Clinic of Jönköping, was criticised by the applicants and withdrawn by the
doctors who issued it. A new opinion based on a new investigation was issued by
a chief doctor and a qualified psychologist at the Clinic on 9 September 1985.
The applicants did not participate in the latter investigation which thus
concentrated on Björn's development. Since the two opinions contained
completely different conclusions, the Social Council decided to ask the National
Board of Health and Welfare (socialstyrelsen) for a new assessment of the
child. On 15 November 1985, the National Board replied that it could not make
such assessments. The Social Council then decided to ask the National Board for
an assessment of the child psychiatric opinion of 9 September 1985 in order to
obtain an opinion as to whether further psychiatric examinations were
necessary. On 27 January 1986 the National Board replied that the investigation
which was at the basis of the opinion was sufficient for an assessment as to
what was in the best interest of the child.
The social investigation made subsequent to the request that the public
care of Björn should be terminated was completed on 23 January 1986. The
conclusion of the investigation was that there were no longer sufficient
reasons to uphold the public care order concerning Björn. It was found,
however, that there was a considerable risk that Björn's health and development
could be seriously damaged if Björn was separated from his foster parents.
On 6 February 1986 the Social Council decided to terminate the care of
Björn and to issue a prohibition for the applicants to separate Björn from the
foster home where he was living. The latter decision was taken pursuant to
Section 28 of the Social Services Act (socialtjänstlagen).
This section provides, in its first paragraph:
(Swedish)
"Socialnämnden får för viss tid eller tills
vidare förbjuda den som har vårdnaden om en underårig att ta denne från ett hem
som avses i 25 §, om det finns risk som inte är ringa för att barnets
kroppsliga eller själsliga hälsa skadas om det skiljs från hemmet."
(English translation)
"The Social District Council may for a certain period of time, or
until further notice, prohibit the custodian of a minor from taking the minor
away from a (foster home), if there is a risk, which is not of a minor nature,
of harming the child's physical or mental health if the child is separated from
that home."
The said prohibition was valid until further notice. The Council expressed
the opinion that it was important to create good opportunities for Björn to
build up and develop a relationship of confidence with the applicants.
The applicants appealed to the County Administrative Court against the
decision regarding the prohibition on removal (flyttningsförbud). Following a
hearing before the Court on 28 May 1986, the Court, in a judgment of 6 June
1986, confirmed the prohibition on removal, but ordered that it should only
apply until 15 December 1986. In the judgment the following reasons are stated:
"On the basis of the investigation in the case, the Court finds, inter
alia, the following facts established. Björn was placed on 8 October 1982 in
the foster home of the spouses Maud and Göran Henriksson in Skirebo outside
Jönköping. In the home there is, apart from the spouses, a foster brother who
is four years older than Björn. There is no indication in the case that Björn
has received other than the best possible care in the foster home. As regards
the spouses Nyberg a durable stabilisation appears to have occurred as regards
their mental health. Birgitt Nyberg works as a home assistant and Lars Erik
Nyberg receives sickness benefits. He has regular contact with a psychiatric
care centre for medication. Björn's younger brother Ralf, born on 14 January
1984, lives with the spouses Nyberg. Lars Erik Nyberg takes care of Ralf during
the day while Birgitt Nyberg works. The spouses' ability to function as parents
has been shown by Ralf's favourable development. It is undisputed in the case
that the spouses would be able to take care of and foster Björn. Birgitt Nyberg
had the responsibility for the care of Björn during his first eight months.
Thereafter the separation from the mother took place as a result of her sudden
sickness. After the separation the spouses, in particular Birgitt Nyberg,
endeavoured to maintain contact with Björn. A couple of lengthy interruptions
have occurred in the contact when the spouses Nyberg stayed in the Federal
Republic of Germany. In 1986 some contact occurred between Björn and his
parents. Björn has slept overnight once in his parents' home. No contact could
take place in May.
The Social Council has invoked a statement from the Children's and
Juveniles' Clinic of the Central Hospital of Jönköping dated 9 September 1985
concerning Björn. In the statement the investigators, the chief doctor, Ingrid
Laurell, and the qualified psychologist, John-Erik Ottosson, consider that
Björn is in all respects a normally developed boy. He has no child neurotic
disturbances. Emotionally he is secure and settled in his foster family where
he has spent almost three-quarters of his life. As a result of Björn's young
age it is, of course, evident that his security and identity are attached to
the foster parents. According to the investigators' opinion, there ought to be
very strong reasons for moving him from the foster home, having regard to the
long time he has lived there and the connection he has.
In the investigators' opinion there is a risk which is not of a minor
nature that Björn's mental development will be jeopardised by his removal from
the foster home, if it is not ascertained in advance that Björn's relationship
with the natural parents is of such a nature that Björn can identify them as
alternative psychological parents along with the foster parents.
In a statement of 27 January 1986 the National Board of Health and Welfare
expressed its opinion on the position taken by the Children's and Juveniles'
Psychiatric Clinic of Jönköping that Björn should not be removed from his
foster parents. In the opinion of the National Board this position is
well-founded on the basis of knowledge of children's development and needs as
applied to Björn's special situation. The National Board has considered that
Björn, if he is moved from the foster home, will be subjected to a risk of
damage to his mental health and development which is not to be considered as
being only of a minor nature. It is desirable that he should be allowed to stay
in the foster home. The National Board of Health and Welfare considers that
Section 28 of the Social Services Act is applicable.
The spouses Nyberg have invoked a certificate by the certified psychologist
Lars Billing.
In a statement the County Administrative Board of the County of Stockholm
took the view in brief that it is at present not possible to move Björn to his
natural parents and that, therefore, a prohibition pursuant to Section 28 of
the Social Services Act ought to be maintained but that preparatory measures
ought to be taken in order to reunite Björn with his parents.
At the request of the spouses Nyberg, evidence has been given by a
psychiatrist in private practice, Olle Björkström, the certified medical doctor
Gunnel Hörnqvist, and the certified nurse Nancy de Sousa.
Björkström has in essence said the following: As the situation now is with
the defective contacts Björn has had with Birgitt Nyberg, it is a fact that the
foster parents are Björn's primary and psychological parents. Björn's solidarity
is with them. It would be very strenuous for Björn if he were to move home to
his biological parents. His primary parent-child relationship would then be
broken, which would imply a great trauma for him.
Hörnqvist has considered that the spouses Nyberg would manage to take care
of Björn and to tackle the problems which would arise if he moved home.
Hörnqvist considers that Björn has a living contact and a deep relationship
with, in particular, Birgitt Nyberg. It would therefore not be a serious risk
if Björn came home.
Nancy de Sousa met Björn in September 1984 and March 1986 during his visits
to the spouses Nyberg. She indicated what she saw during these visits and
stated that they were favourable and without any problems.
The Deputy Chief Doctor Frank Ståhl at the Sankt Göran's hospital, who is a
specialist in children's and juvenile psychiatry, has been heard as an expert.
Ståhl stated mainly the following: As a result of the separations during
Björn's first years, he is more sensitive than others to a break-up from the
environment in which he now finds himself, and it involves as such a
considerable risk of damage to his psychological health, which is not of a
minor nature. The foster parents are the most important persons for Björn in
his life. Birgitt Nyberg does not sufficiently understand Björn's need of his
foster parents. Björn is now settled in the foster home and to move him would
involve strain. Björn must now get a clear message as to where he belongs. It
is important that he may have a relationship with his natural parents. What is
at present particularly damaging for Björn is the conflict between the foster
parents and the natural parents.
Under Section 28 of the Social Service Act the Social Council may, when the
child's best interests so require, for a certain period, or until further
notice, prohibit the person who has the care of the minor from taking the child
away from a foster home if there is a risk which is not considered to be of a
minor nature that the child's physical or mental health would be jeopardised if
he is separated from the home. Only a temporary disturbance or any other
temporary inconvenience is not a sufficient reason for issuing a prohibition.
When placing a child in a foster home the normal objective should be the
reunification of the natural parents and the child. A prohibition under Section
28 of the Social Services Act ought to be seen as a temporary measure, valid
until such time as a child, without risk for any damage which is indicated in
the said prohibition, can be separated from the foster home. The facts which
should be considered in cases concerning prohibitions on removal are inter alia
the child's age, his or her degree of development, abilities and emotional
relationships, the time the child has been cared for in other places than with
the parents, the present living conditions of the child, and those which he or
she would have after a removal, as well as the contact between the parents and
the child during the time they have been separated.
The County Administrative Court makes the following assessment.
Björn will be 5 years old in September. During his first eight months he
stayed with Birgitt Nyberg. As from the age of one year he has lived in the
foster home. The spouses Nyberg's suitability to take care of Björn is not
questioned. Since the circumstances which led to Björn being placed in the
foster home have ceased to exist, the aim must be that Björn should be reunited
with his parents.
The experts who have submitted their opinions in the case have by and large
jointly expressed themselves against Björn's removal to the natural parents.
They have based themselves on the emotional bond which has arisen between Björn
and the foster parents and the long time he has lived in the foster home. The
facts of the case show that the spouses Nyberg have maintained contact with
Björn but that the contact has been made more difficult during recent times.
There is now a situation filled with conflicts between the spouses Nyberg and
the foster parents which is to Björn's detriment. The Court finds it
established in the case that there is a risk, which is not of a minor nature,
that Björn's mental health would be jeopardised if he were now separated from
the foster home. The prohibition on removal should therefore at present be
maintained.
Irrespective of whether a prohibition on removal is limited in time or not,
it is the obligation of the Social Council to see to it that appropriate
preparations are made promptly with a view to the reunification in order that
the child should not become more attached to the family which it should leave.
From the facts of the case it appears that Björn is a normally developed boy
without any disturbances. If he does not in the near future live with his
natural parents and his brother, the prohibition on removal can, in the long
run, turn out to be in conflict with Björn's best interests. The County
Administrative Court considers that if Björn as soon as possible receives a
clear message that after a certain time he should move home to his parents and
his brother and that preparations are made with frequent contacts with his
parents, Björn would not run any risk of more than temporary disturbances when
moving. The conflicts between the foster parents and the spouses Nyberg must
not be an absolute impediment to active measures of preparations for Björn's
removal. Making an overall assessment, the County Administrative Court finds
that there are reasons to limit the prohibition on removal in time for no
longer than half a year. The Court takes it for granted that the Social Council
will actively further the reunification of Björn and the natural parents and
that the Council will intensify its work in this respect. Great responsibility
is incumbent upon the foster parents. They must participate positively and
actively and help and support Björn. The spouses Nyberg and the foster parents
must try to reach agreement and see to the best interests of Björn."
Both the applicants and the Social Council appealed to the Administrative
Court of Appeal of Stockholm. The Court held a hearing in the case on 17
September 1986 and delivered judgment on 7 October 1986. The Court ordered that
the prohibition on removal should apply no longer than to 1 March 1987. In the
reasons for its judgment the Court stated inter alia the following:
"The Administrative Court of Appeal finds, as did the County
Administrative Court, that there is a risk which is not of a minor nature that
Björn's health and development would be jeopardised if he immediately were to
move from the foster home. The County Administrative Court has therefore had
reasons to issue a prohibition on removal.
From the investigation in the case it appears that the contacts between the
parents and the child have been good most of the time when Björn lived in the
foster home. It furthermore appears from the investigation, inter alia from the
testimony of Dr. Hörnqvist, that it has been possible to maintain a rather deep
emotional contact between Björn and, in the first place, his mother, during the
time he has stayed in the foster home. In view of this, and having regard to
the other facts of the case, there is reason to believe that it is possible to
arrange for a relatively quick reunification without there being any risk for
Björn's health.
When deciding on the date until which the prohibition on removal should be
valid, it must be kept in mind that Björn, on some occasions, has shown that he
does not wish to visit the parents and that two visits in May 1986 could not
take place as a result of his refusal to follow them to Stockholm. It should
further be observed that Björn has not met his parents since the end of May
1986. On the other hand, great importance must be attached to the fact that
Björn, according to the medical certificates which have been invoked in the
case, is in all respects a normally developed child both physically and
mentally.
The measures taken by the Social Council so far, in order to create the
basis for a reunification between Björn and his natural parents, have been insufficient.
Thus it must be considered that the occasions on which there have been contacts
between them have been too few and too short and that, also in other respects,
they have been designed in a way which has not been favourable to strengthening
the links between Björn and his parents. Nor has sufficient regard been had to
the conflicts which have arisen between, in particular, Birgitt Nyberg and the
foster parents. The Administrative Court of Appeal takes it for granted that
the Social Council, in pursuing the objective of reuniting Björn with his
natural parents will, through different measures, intensify its work in this
respect. Furthermore, the Court also takes it for granted that the spouses
Nyberg will completely and fully co-operate in order to make the removal as
smooth as possible for Björn and that the foster parents will also co-operate
for this purpose.
In view of what has been said above, the Court finds that some further time
is necessary for the preparatory measures before the prohibition on removal can
be terminated."
The applicants and the Social Council appealed to the Supreme
Administrative Court, which in a decision of 7 November 1986 refused to grant
leave to appeal.
Following complaints from the applicants the Parliamentary Ombudsman
(justitieombudsmannen) stated in a decision of 19 June 1986 that the Social
Council's examination of the applicants' request for an extended right of
contact with Björn had been unduly long (more than one year), thereby depriving
the applicants of the right to have this request examined by a court, and that
the fact that the applicants' request for a termination of the care order had
only been dealt with after almost one and a half years was unacceptable.
On 18 December 1986 the Social Council decided to institute civil
proceedings before the Stockholm District Court (tingsrätt) requesting that the
legal custody of Björn be transferred from the applicants to the foster parents
in accordance with Chapter 6 Section 8 of the Parental Code (föräldrabalken).
The Social Council invoked an investigation, made by a welfare officer, of 5
December 1986 and the written consent of the foster parents. In the Social
Council's application for a summons, dated 25 November 1986, it is stated that
there was a risk that Björn's mental health would be harmed if he was separated
from his foster parents and that it would obviously be in his best interests to
stay with them.
In the investigation it is inter alia stated that Björn, during the period
January 1986 to May 1986, by strong emotional reactions in connection with the
meetings with his parents, showed that he did not want to see them. The
following conclusion was reached:
"Even though Birgitt Nyberg has been Björn's primary parental figure
for the first eight months of his life, through his long separation from her,
Björn has lost an essential part of his emotional attachment to her. For
natural reasons Björn is identifying himself with his foster parents and feels
that he belongs in his foster family. A separation from the foster parents
would inevitably involve a crisis for Björn."
On 26 January 1987 the applicants applied to the County Administrative
Court for the enforcement of the return to them of their son Björn in
accordance with the provisions of Chapter 21 of the Parental Code.
On 30 January 1987 the County Administrative Court of Jönköping ordered
that the Head of Section at the social authorities of Jönköping, Mrs. Ingrid
Westerlund-Henja, should try to achieve a voluntary transfer of the child from
his foster parents to the applicants.
On 9 February 1987 the Social Council requested the District Court to
transfer, by a provisional decision, the legal custody of Björn to the foster
parents. The reasons given for the request was the applicants' application of
26 January 1987 for the enforcement of the return to them of Björn and the fact
that according to the Social Council they had not, in the way the
Administrative Court of Appeal of Stockholm had provided in its judgment of 7
October 1986, completely co-operated in order to make the removal as smooth as
possible for Björn.
On 23 February 1987 the Social Council requested an opinion from the
Children's and Juveniles' Psychiatric Clinic of Jönköping as to whether Björn
would be able to endure the meetings with his parents without becoming mentally
injured. In the opinion, which was issued on 25 February 1987 by the doctors
who had issued the opinion of 9 September 1985, the following was stated:
"Since measures to create contact have not been brought about until 3
February
...
It is our unambiguous opinion that until a functioning contact and a
positive attachment can be brought about between Björn and his natural parents
and all those involved have done what is possible to help Björn with the
separation from the foster parents, who naturally are his psychological
parents, a transfer of Björn to his natural parents will bring about an
apparent risk that Björn's mental health and development will be seriously
harmed."
In view of this certificate the Chairman of the Social Council decided on
26 February 1987 to issue a new prohibition on removal, this time valid until
further notice.
On 5 March 1987 the Social Council provisionally upheld the Chairman's
decision.
On 10 March 1987 the County Administrative Court held a hearing in the case
concerning enforcement under Chapter 21 of the Parental Code and on 16 March
1987 it delivered judgment. The applicants' request for enforcement was
granted. The Court ordered that the child be temporarily placed for a maximum
of five days at the Children's and Juveniles' Psychiatric Clinic of Jönköping
and that thereafter the child should be transferred to the applicants. The
foster parents were ordered to leave the child with the Clinic not later than
24 March at 10.00 hours. In the judgment the following reasons are indicated:
"In the situation which is at hand in the present case, the Court may
under Chapter 21 Section 7 second paragraph of the Parental Code refuse
enforcement if, in view of the child's best interest, it is necessary that the
question of the legal custody of the child be examined by an ordinary court.
It appears from the investigation that (the applicants), with some
exceptions, have had continuous and good contact with Björn and that they have
all the time had the intention of taking care of him themselves. In view of
this and of the other facts, there is no obstacle to the enforcement on the
ground that it would be necessary to re-examine the question of the legal custody
of Björn. The fact that proceedings concerning this question are now pending
does not affect this conclusion.
It can be established that the preparatory measures which according to the
judgment of the Administrative Court of Appeal were necessary in order to
terminate the prohibition on removal have not been implemented to the extent or
in the manner envisaged. The Social Council's measure to request before the
District Court a transfer of the custody of Björn within a rather short time
after the judgment of the Administrative Court of Appeal appears remarkable and
has not been designed to facilitate the preparatory measures. The manner in
which contacts took place between Björn and his natural parents during the
month of February did not facilitate his relations to them either.
At least during the last year there has been a conflict between the natural
parents and the foster parents. The conflict has become worse recently. In the
opinion of the Court the result is that it will presumably be very difficult to
achieve Björn's gradual adaptation to his natural parents as intended in the
judgments concerning the prohibition on removal.
The issue in the case is therefore whether nevertheless the conditions for
enforcement are fulfilled. According to Chapter 21 Section 6 second paragraph
of the Parental Code, the County Administrative Court may refuse enforcement if
there is a risk, which is not of a minor character, that the child's bodily or
mental health may be harmed. In that context not only should the risks of the
actual transfer and the resulting problems of adaptation be taken into account,
but also what in the long run must be considered to be in the best interest of
the child. In view of the statements of
Mrs. Ingrid Laurell and Mr. John Erik Ottosson and the other facts, it appears
clear that there is a risk that Björn's mental health might be harmed by a
transfer. In the case before the County Administrative Court of Stockholm
concerning prohibition on removal the expert on children's and juveniles'
psychiatry, Mr. Frank Ståhl, stated inter alia that Björn must receive a clear
message as to where he belongs and that what is most harmful to him is the
conflict between the foster parents and the natural parents. The Court concurs
with this opinion. There is thus also a risk that Björn's mental health may be
harmed if the conflict and the uncertainty as to where he belongs continue.
Björn, who is not yet six years old, is a normally developed boy. It is
established that there were previously good contacts between him and his
natural parents. The certified doctor Mrs. Gunnel Hörnqvist stated in the case
concerning the prohibition on removal that Björn had close contact and deep
relations, in particular with Mrs. Nyberg. Even if the
contact between them has not been so good in the special circumstances
which have prevailed recently, there is good reason to believe that the
previous good relations will be restored. The numerous proceedings which have
been instituted and which are still going on concerning Björn have resulted in
great strain for all the parties involved, and have evidently worsened the
conflict between the natural parents and the foster parents. This, of course,
affects Björn. It must, from his point of view, be important to terminate the
'fight' over him. As long as he stays in the foster home it is likely that the
'fight' will continue.
The natural parents have, of course, a justified claim to have their child
back. As has been said above, it appears impossible to achieve Björn's gradual
adaptation to them. Making an overall assessment of the risk to him which a
transfer would involve compared to the risks which continued uncertainty and
continued conflicts would involve, the Court finds that the most weighty
arguments are in favour of enforcement now."
On 19 March 1987 the Social District Council decided, thereby confirming
their provisional decision of 5 March 1987, to prohibit the applicants from
moving Björn from the foster home since there was a risk which was not of a
minor character that Björn's mental health and development would be harmed if
he was separated from the foster home. The decision was based on an
investigation made by Social District Council No.
Both the applicants and the foster parents appealed to the Administrative
Court of Appeal against the judgment of the County Administrative Court of 16
March 1987. Before the Administrative Court of Appeal preparatory sessions were
held in order to try to solve the dispute on a voluntary basis. In the course
of these sessions the parties agreed to co-operate for the purpose of
transferring Björn to the applicants. The foster parents promised to endeavour
to have the case on legal custody before the District Court withdrawn. Mrs.
Nyberg promised to endeavour to have a police report in Germany against the
foster father withdrawn. Following these sessions the Administrative Court of
Appeal of Jönköping decided on 1 April 1987 to adjourn its examination of the
case.
On 2 April 1987 the Social Council decided to maintain its action before
the District Court of Stockholm concerning the transfer of the legal custody of
Björn from the applicants to the foster parents and to maintain the prohibition
on removal under Section 28 of the Social Services Act. The decision was not
unanimous and the chairman expressed a separate opinion.
On 3 April 1987 the foster parents wrote a letter to the District Court repeating
the agreement reached with the natural parents before the Administrative Court
of Appeal and expressed their surprise over the Social Council's decision.
On 15 April 1987 the Social Council decided to withdraw its action before
the District Court concerning the transfer of the legal custody and to revoke
the prohibition on removal. The application before the District Court was
withdrawn by the Social Council on 21 April 1987 and removed from the Court's
case list on 13 July 1987.
The applicants claimed that the District Court should oblige the Council to
pay their legal costs. The reason given for this was that the Council
intentionally or by neglect had caused unnecessary proceedings. The Court
rejected the applicants' claim. The applicants appealed to the Court of Appeal,
which found that there were special reasons to oblige the Council to pay their
legal costs since the Council withdrew its action after a considerable delay.
The social authority covered the foster parents' costs for legal aid in the
custody proceedings out of its expense account. This was decided on 26 March
and 26 May 1987 by two social welfare officers.
On 21 April 1987 the foster parents and Björn arrived at the applicants'
home at Neukirchen. On 23 April the foster parents left Björn with the
applicants and the family is since then re-united.
On 14 May 1987 the Administrative Court of Appeal removed the case
concerning the enforcement of the return of Björn to his parents from its list
of cases.
-------------------------------------
Previously, on 29 May 1986, the applicants had been allowed to meet their
son Björn for the day in order to have some contact with him. In view of the
fact that the child's grandmother had not had the opportunity of meeting the
child for a long time, the parents decided, thereby violating the conditions
for the right of contact with the child, to travel to the Federal Republic of
Germany on a visit and took the child with them.
When the foster mother came to pick up Björn at his parents' home in the
evening nobody was there. She informed the social authorities.
On 29 May 1986 the Deputy Chairman of the Social Council decided to take
Björn into public care and to ask for assistance from the police authority in
order to have the decision enforced. The applicants were reported to the police
for having taken Björn away without permission, but no action was taken against
them.
The social authorities contacted the Ministry for Foreign Affairs in order
to find out if there was any possibility to have Björn returned to Sweden and
were informed that there were no treaties or conventions between Sweden and
Germany regarding a situation like the one in question.
On 30 May 1986 the foster parents talked to Björn's father over the
telephone. They were informed that Björn's parents intended to spend some time
in Germany.
On 31 May 1986 the foster father went to Germany with a friend. Before he
left he had contact with one of the social welfare officers dealing with the
case of Björn. She ordered air tickets, in the social authority's name, for the
foster father and his brother. She also ordered return tickets, including one
for Björn. She booked tickets on a flight to Amsterdam. The bill was sent to
the social authority but forwarded to the foster parents. The reason why the
social welfare officer helped to book the tickets was that it was Saturday and
the foster father could not raise the money needed for the trip. She also
understood that the foster parents were concerned about Björn. It is disputed
between the parties whether the authorities were aware of the foster father's
intention to take Björn away from the applicants.
The foster father arrived at Neukirchen-Vluyn, where Björn was staying with
the applicants, on 31 May 1986. On the following day, late in the afternoon,
the applicants took a walk with their two sons. A car approached them from
behind. Out of the car came the foster father, apprehended Björn and took him
into the car, which then disappeared quickly. Thereafter the foster father went
to Sweden with Björn via Amsterdam.
This incident was reported to the police. On 1 August 1986 the Regional
Prosecutor (regionåklagaren) of Jönköping decided not to institute criminal
proceedings since it was considered that the foster father's action was founded
on his care for Björn and that criminal proceedings were not required in the
general interest. In view of this decision no investigation was initiated by
the prosecutor regarding the officials at the Social District Council. Upon
appeal the Prosecutor-General (riksåklagaren) saw no reason to amend the
decision of the Regional Prosecutor and on 27 October 1986 he decided not to
take any action.
When Björn had returned to Sweden the foster parents paid the money back
that the social authorities had advanced for the air ticket.
A social welfare officer on 10 June 1986 decided to grant the foster
parents an allowance of 5,825 SEK. The only note made about the allowance was
that it was a special measure of support. When asked about the allowance by the
Parliamentary Ombudsman, in the course of her investigation, the social welfare
officer said that it was a special measure of support in view of the
difficulties the foster parents experienced when Björn had returned to them. In
an application for compensation to the foster parents for their travel
expenses, submitted by the social authority to the Berg-Rolanska Foundation, it
appears that the entire cost for the travel, including air tickets, hotel and a
rented car, was 12,825 SEK and that the social authority had granted an
allowance of 5,825 SEK. The foster parents had their expenses fully covered by
financial contributions from the Swedish Save the Children Federation and from
the Berg-Rolanska Foundation.
-------------------------------------
On 24 May 1988 the Parliamentary Ombudsman took a decision concerning the
social welfare officers' and the Social District Council's handling of Björn's
case from 29 May 1986 and onwards.
The Ombudsman considered that the assistance by the social welfare officer
was crucial when Björn's return to Sweden was brought about and that it cannot
be accepted that the social authorities facilitate illegal actions. However,
she did not find it substantiated that the social welfare officer's intention
when assisting the foster father was that he should take Björn back to Sweden
but she seriously criticised the action of the social authorities.
The Ombudsman further considered that, whether the contribution of 5,825
SEK to the foster parents was supposed to cover their travel expenses or not,
the social authority had through its actions, after the foster father had
brought Björn back, shown that it supported his action. She found this
inappropriate.
From the Ombudsman's investigation it appears that the reasons the social
authorities have given for the decision of the chairman of 29 May 1986 to take
Björn into care on a provisional basis were, inter alia, that the social
authorities wanted to make it possible to ask for assistance from the police to
bring Björn back to Sweden, that Björn's parents, by abruptly separating him
from the foster parents, had shown that they lacked understanding for his
needs, that they had prevented the preparation for their reunification with Björn
as it had been envisaged by the County Administrative Court in its judgment on
prohibition on removal and, finally, that Björn's strong reactions when he met
his parents in spring 1986 might be detrimental to his health and development.
In this respect the Ombudsman pointed out that only the last reason was
valid and that it was not likely that the provisional care decision would have
been upheld by the County Administrative Court. She did not pursue the issue as
the decision was never enforced. She added that the decision ought to have been
brought before the Council for re-examination when it had a meeting a few days
later and Björn was back in Sweden. This was never done.
As for the remaining part of the examination the Ombudsman has stressed
that the Social District Council, in view of the judgments of the Courts on 6
June and 7 October 1986, was under a special obligation - besides what normally
rests with a social authority in this regard - to be active in seeing to it
that contacts were created between the child and his natural parents. She found
no indication that serious efforts were made in order to improve the relations
to the natural parents. On the contrary, she said, the application of December
1986, for having the custody of Björn transferred to the foster parents, proved
that the Social District Council had taken the view that Björn was not to be
reunited with his parents. For this she expressed strong criticism.
She further could not accept the subsequent measures such as the decision on
a new prohibition on removal concerning Björn taken a few days before he should
be returned to his parents according to the judgment of the Administrative
Court of Appeal of 7 October 1986, the fact that the social authority covered
the foster parents' costs for legal aid in the custody proceedings and the
decision of the Social Council of 2 April 1987 to maintain the action on
transfer of custody and the prohibition on removal. The latter decision was
contrary to the judgment of the County Administrative Court of 16 March 1987,
according to which Björn should be returned to his parents.
Generally the Ombudsman observed that the handling of the case showed that
the social welfare officers had engaged themselves strongly in it for the
benefit of the foster parents. She found it doubtful whether the Social
District Council and the social welfare officers realised that respect for
court decisions is a fundamental and indispensable requirement of legal
security.
Further particulars concerning the contacts between the applicants and
Björn
During Björn's first year in the foster home Mrs. Nyberg visited him once a
month. Every second time she visited him she was accompanied by Lars Erik Nyberg
and the visit lasted for a day, and every second time she came alone and the
visit lasted two days. After some time the spouses Nyberg visited Björn
together every sixth week.
During the period 4 November 1983 to 23 September 1984 the applicants did
not meet Björn as they had gone to Germany in order for Mrs. Nyberg to give
birth to their second child. They met Björn again on 23 September 1984.
In the period between their request of 19 October 1984 that the care of
Björn be terminated, and the decision of the Social Council of 6 February 1986
to terminate the care, the applicants met Björn on the following occasions,
alternately in their home and at the foster parents' home:
4 November 1984
22-23 December 1984
2 February 1985
13 March 1985
22 April 1985
2 June 1985
12-13 July 1985
After the care had been terminated and during the spring of 1986, until the
time when Björn was brought to Germany by the applicants, they met him on the
following occasions:
8-9 February 1986
22-23 March 1986 29 May -
The applicants returned to Sweden from Germany in January
COMPLAINTS
The applicants allege that the refusal until April 1987 to allow them to
take Björn home was a breach of Article 8 of the Convention. The only reason
appeared to be that the social authorities considered the foster home to be a
better home than the applicants' home, a reason which is unacceptable.
1. The applicants maintain that a prohibition on removal is formally a
decision which aims at a smooth transfer of the child from the foster parents
to the natural parents. In practice, however, such a decision is taken for the
opposite purpose, namely to obstruct the return of the child to his or her
home. In the present case, the social authorities did nothing to reunite the
applicants with their son. The applicants' right of contact with their son has
been obstructed. They were given insufficient access to their son, and
reunification was thereby not in any way promoted.
2. The applicants further allege that the delay in the reunification of their
family, partly through administrative slowness, partly through successive
delays by different authorities, constitutes a breach of Article 6 of the
Convention in that a "civil right" has not been determined
"within a reasonable time".
3. The applicants allege that the kidnapping of the child in the mother's
and child's home country, in conflict with international law, and without any
subsequent criminal proceedings being instituted, is a breach of Article 3 of
the Convention. They allege that the social authorities accepted this
kidnapping.
4. The applicants allege that the same facts show disrespect for family
life in breach of Article 8 of the Convention, since no measures were taken by
the authorities.
5. The applicants also allege a breach of Article 13 of the Convention,
contending that there exists no effective remedy for the alleged violations of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced with the Commission on 9 June 1986 and
registered on 2 December 1986.
Refusing a request from the applicants, the Commission decided on 13 March
1987 not to take any action under Rule 36 of the Rules of Procedure.
On 7 May 1987 the Commission decided to invite the respondent Government to
submit written observations on the admissibility and merits of the application.
The Government's observations were dated 4 September 1987 and the
applicants' observations in reply were dated 17 November 1987.
On 16 October 1987 the Commission granted legal aid to the applicants.
On 6 July 1988 the Commission decided to invite the parties to a hearing on
the admissibility and merits of the application.
At the hearing, which was held on 4 October 1988, the parties were
represented as follows:
The Government
Mr. Hans Corell Ambassador,
Under-Secretary for
Legal and Consular Affairs,
Ministry for Foreign Affairs,
Agent
Mrs. Christina Bergenstrand Legal
Adviser, Ministry of
Health and Social Affairs
Mr. Carl-Henrik Ehrenkrona Legal
Adviser, Ministry for
Foreign Affairs
The Applicants
Mr. Lennart Hane Lawyer
Mrs. Gunilla Hane Assistant
The applicants, Mr. and Mrs. Nyberg, were also present.
SUBMISSIONS OF THE PARTIES
A. The Government
1. The Admissibility
Regarding the complaints, under Articles 3 and 8 of the Convention,
concerning Björn's return to Sweden with his foster father in May 1986, the
Government are of the opinion that the suffering to which the applicants might
have been subjected was caused by an individual towards another individual.
This does not raise an issue under international law but should be taken care
of within the legal system within the States concerned. For that reason the
Government maintain that this part of the application should be declared
inadmissible for being incompatible ratione personae with the provisions of the
Convention.
The Government question whether Article 3 could apply at all even if the
way Björn was brought back to Sweden had been authorised by a Swedish authority.
The contents of Article 3 must be seen in the light of the atrocities that took
place in Europe the years before the Convention was drafted. It must have been
the severer forms of ill-treatment that the Contracting Parties had in mind
(cf. Eur. Court H.R., Case of Ireland v. United Kingdom, judgment of 18 January
1978, separate opinion, Series A no. 25, p. 117, para. 17). The suffering to
which a person can be subject due to actions taken by the authority, when these
actions are based on a serious concern for a child's welfare, is far from
reaching that level and of a totally different nature.
The Government maintain that the complaints under Article 3 should for this
reason be declared inadmissible for being incompatible ratione materiae with
the provisions of the Convention.
The Government furthermore maintain that the complaint under Article 8
should be declared inadmissible for being incompatible ratione materiae with
the provisions of the Convention.
It is added that, if the applicants had refused to send Björn back to the
foster parents while in Sweden, the authorities could have asked for assistance
from the police in order to enforce Björn's return to the foster home from
which he, according to a decision by the Social Council then in force, was not
to be moved. The fact that the foster father's action in this case was contrary
to the law does not make any difference as far as the application of Article 3
is concerned.
Should the Commission be of another opinion, the Government maintain that
the complaints in this regard are manifestly ill-founded.
As to the complaints under Article 6 of the Convention the Government admit
that Article 6 is applicable. With reference to what is said below on the
merits the Government are of the opinion that the complaints should be declared
inadmissible since they are manifestly ill-founded.
Regarding the remaining complaints as to Article 8 and the complaints as to
Article 13 of the Convention the Government, with reference to their
observations below on the merits, maintain that these should be declared
inadmissible since they are manifestly ill-founded.
2. The Merits
2.1 Article 3 of the Convention
The Government observe that the complaints under Article 3 refer to the
event in May 1986 when Björn was brought back to Sweden by his foster father
without the consent of his parents.
According to what has been submitted to the Government by the Social
Council in this regard the Council was not informed about the foster father's
journey to Germany before he left. However, one of the officers within the
social welfare administration, who was responsible for Björn's case, was
informed by the foster father that he was going to Germany to talk to Björn's
parents. The officer helped him to arrange his journey. She advised him not to
go even if she symphatised with his intention to try to persuade the parents to
let Björn return to Sweden.
The Government point out that the events to which this part of the
complaints relates have been examined by the Parliamentary Ombudsman and that
she concluded that it was not possible, through further investigations, to get
a clear idea of the full truth in the matter. The Government cannot make any
other assessment. They stress that, regardless of what the truth in the matter
is, the only thing the responsible social welfare officer had in mind was to
assist Björn in what she considered to be a difficult situation for him.
However, it is beyond doubt that any participation in the foster father's
action would clearly have been contrary to Swedish law, if the social welfare
officer had been aware of his intention. The Government maintain that this
question cannot be solved without taking evidence before a court.
The Government submit that, since the action was neither initiated nor authorised
by Swedish authorities, it can hardly be said that it involves a violation of
Article 3. The applicant's complaints in this regard are manifestly
ill-founded.
The measures taken by the foster father must also be seen in the light of
the fact that Björn's parents had brought him to Germany without informing the
foster parents or the social authorities. Björn's parents thus neglected the
prohibition on removal then in force and their agreement with the foster
parents to let them pick up Björn late in the afternoon of 29 May.
2.2 Article 6 of the Convention
As to the alleged slowness of the proceedings the Government submit that a decision to take a child into public care or to