Case of Olsson v. Sweden (No. 2)

olsson2_v_swedenHudoc reference REF00000373 Document type Judgment (Merits and just satisfaction) Title CASE OF OLSSON v. SWEDEN (No. 2) Application number 00013441/87 Date 27/11/1992 Respondent Sweden Conclusion Lack of jurisdiction ; No violation of Art. 6-1 ; No violation of Art. 8 ; Violation of Art. 8 ; Violation of Art. 6-1 (access) ; No separate issue under Art. 53 ; Non-pecuniary damage - financial award ; Costs and expenses partial award - domestic proceedings ; Costs and expenses partial award - Convention proceedings Published in A250 Keywords Access to Court ; Reasonable time ; Respect for family life ; Interference ; Prescribed by law ; Protection of the rights and freedoms of others ; Protection of health ; Protection of morals ; Execution of judgment ; Effective remedy ; Just satisfaction

 

EUROPEAN COURT OF HUMAN RIGHTS

        In the case of Olsson v. Sweden (no. 2)*,
        The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court, as a Chamber composed of
the following judges:
        Mr  R. Ryssdal, President,
        Mr  F. Matscher,
        Mr  L.-E. Pettiti,
        Mr  B. Walsh,
        Mr  C. Russo,
        Mr  S.K. Martens,
        Mrs E. Palm,
        Mr  A.N. Loizou,
        Mr  A.B. Baka,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
        Having deliberated in private on 24 April and
30 October 1992,
        Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 74/1991/326/398.  The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number).  The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1.      The case was referred to the Court on 20 August 1991 by the
Government of the Kingdom of Sweden ("the Government"), within the
three-month period laid down in Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention.  It originated in an
application (no. 13441/87) against Sweden lodged with the European
Commission of Human Rights ("the Commission") under Article 25
(art. 25) by two Swedish citizens, Mr Stig and Mrs Gun Olsson,
on 23 October 1987.
        The object of the application was to obtain a decision as to
whether or not the facts of the case disclosed a breach by the
respondent State of its obligations under Article 8 (art. 8) of the
Convention.
2.      In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated
that they wished to take part in the proceedings and designated the
lawyer who would represent them (Rule 30).
3.      The Chamber to be constituted included ex officio
Mrs E. Palm, the elected judge of Swedish nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)).  On 28 September 1991 the President
drew by lot, in the presence of the Registrar, the names of the
seven other members, namely Mr F. Matscher, Mr L.-E. Pettiti,
Mr B. Walsh, Mr C. Russo, Mr S.K. Martens, Mr A.N. Loizou and
Mr A.B. Baka (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
4.      Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Government, the Delegate of the Commission and the
representative of the applicants on the organisation of the
procedure (Rules 37 para. 1 and 38).
        In accordance with the orders made in consequence the
registry received, on 23 January 1992, the applicants' memorial and,
on 6 February, the Government's.  On 6 April the Secretary to the
Commission informed the Registrar that the Delegate would submit his
observations at the hearing.
        On 7 and 27 April the Commission filed a number of documents
which the Registrar had sought from it on the President's
instructions.  These included some, but not all, of the documents
requested by the applicants.
5.      A number of documents were filed by the applicants and by
the Government on various dates between 3 February and
15 April 1992.
6.      As further directed by the President, the hearing took place
in public in the Human Rights Building, Strasbourg, on
22 April 1992.  The Court had held a preparatory meeting beforehand.
        There appeared before the Court:
(a) for the Government
    Mr C.H. Ehrenkrona, Legal Adviser,
       Ministry for Foreign Affairs,                    Agent,
    Mrs I. Stenkula, Legal Adviser,
       Ministry of Health and Social Affairs,
    Mrs B. Larson, Former Chief District Officer,
       Social Services in Gothenburg,                   Advisers;
(b) for the Commission
    Mr Gaukur Jörundsson,                               Delegate;
(c) for the applicants
    Mrs S. Westerberg, lawyer,                          Counsel,
    Mrs B. Hellwig,                                     Adviser.
        The Court heard addresses by Mr Ehrenkrona for the
Government, by Mr Gaukur Jörundsson for the Commission and by
Mrs Westerberg for the applicants, as well as replies to questions
put by the Court and by its President.
AS TO THE FACTS
I.      PARTICULAR CIRCUMSTANCES OF THE CASE
    A.  Introduction
7.      The applicants, Mr Stig and Mrs Gun Olsson, who are husband
and wife, are Swedish citizens and live at Angered, near Gothenburg
in Sweden.  There were three children of the marriage, namely
Stefan, Helena and Thomas, born in June 1971, December 1976 and
January 1979, respectively.
8.      The present proceedings, which concern mainly Helena and
Thomas, are a sequel to the case which the Court decided in its
judgment of 24 March 1988, Series A no. 130 (hereinafter referred to
as "Olsson I").  That case concerned the period from
16 September 1980, when the applicants' three children were taken
into public care, to 18 June 1987, when the public care of Helena
and Thomas was terminated (see paragraph 10 below).  The main issue
in that case was whether the decision to take the children into
care, the manner in which it had been implemented and the refusals
to terminate the care had given rise to violations of Article 8
(art. 8) of the Convention.  In the context of the case now under
review it is of importance to note that with regard to this issue
the Court held that "the implementation of the care decision, but
not that decision itself or its maintenance in force, gave rise to a
breach of Article 8 (art. 8)" (Olsson I, p. 38, para. 84).
        For the background to this case the Court refers in the
first place to Part I of Olsson I (pp. 9-19, paras. 8-32).
    B.  Proceedings relating to the applicants' requests for
        termination of the public care order
9.      A first request by the applicants for termination of the
public care order was dismissed by the Social District Council no. 6
in Gothenburg ("the Social Council") on 1 June 1982.  The dismissal
was upheld by the County Administrative Court (länsrätten) on
17 November and by the Administrative Court of Appeal (kammarrätten)
in Gothenburg on 28 December 1982.  The applicants applied
unsuccessfully for leave to appeal to the Supreme Administrative
Court (regeringsrätten).
        A fresh request, submitted to the Social Council in the
autumn of 1983, was, according to the Government, rejected on
6 December 1983.  Apparently, no appeal was lodged against this
decision.
10.     A further request by the applicants for termination of the
public care, apparently lodged on 16 August 1984, was rejected by
the Social Council on 30 October 1984 as far as concerns Helena and
Thomas and, after further investigations, on 17 September 1985 as
regards Stefan. Appeals by the parents against these decisions were
dismissed by the County Administrative Court on 3 October 1985 and
3 February 1986, respectively, after it had obtained expert opinions
from Chief Doctors Per H. Jonsson and George Finney and from a
psychologist, Mr Göran Löthman, on 22 and 30 August 1985 and held a
hearing on 20 September 1985 in the former case.
        The applicants thereupon appealed to the Administrative
Court of Appeal in Gothenburg, which joined the two cases.  On
12 February 1986 the court decided to request an opinion from the
County Administrative Board (länsstyrelsen), which it received on
15 April 1986.  A hearing was scheduled for 21 August 1986 but was
postponed until 4 February 1987. After the hearing, at which the
applicants gave evidence, the court, by judgment of
16 February 1987, directed that the public care of Stefan be
terminated and dismissed the appeal in so far as it concerned Helena
and Thomas.
        Following an appeal by the parents, the Supreme
Administrative Court, by judgment of 18 June 1987, directed that the
public care of Helena and Thomas should terminate, there being no
sufficiently serious circumstances to warrant its continuation.
    C.  Prohibition on removal and related proceedings
        1.      Decision to prohibit removal and refusal to suspend
                its implementation
11.     In the above-mentioned proceedings, the Supreme
Administrative Court pointed out that the question to be determined
in deciding whether care should be discontinued pursuant to
section 5 of the 1980 Act (see the above-mentioned Olsson I
judgment, pp. 25-26, para. 49) was whether there was still a need
for care.  The problems associated with the removal of a child from
a foster home and its possible detrimental effects on him and with
his reunion with his natural parents were matters to be considered
not under section 5 but in separate proceedings, namely an
examination under section 28 of the Social Services Act 1980
(socialtjänstlagen 1980: 620; see paragraph 57 below).
12.     On 23 June 1987 the Social Council prohibited, pursuant to
section 28 of the Social Services Act, the applicants from removing
Helena and Thomas from their respective foster homes.  This decision
referred, inter alia, to the two reports by Chief Doctors Jonsson
and Finney (see paragraph 10 above).  The latter report noted that
Thomas was no longer depressive but still had traits of a childhood
disturbance, in the form of delayed development and anguish in
unfamiliar situations.
        The Social Council's decision took account of the fact that
Helena and Thomas had not been under the care of the applicants for
a long time, that the contacts between the parents and the children
had been very sparse and that the children had become emotionally
attached to their respective foster families and environment.
Regard was also had to the fact that Thomas was showing signs of
greater stability, that Helena had expressed a wish not to move and
that increased demands had been placed upon the natural parents by
reason of Stefan's return to their home.  There was a risk, which
was not of a minor nature, that if Helena and Thomas were to be
removed from their foster homes, their physical and mental health
would thereby be harmed.
13.     On 25 June 1987 the County Administrative Court rejected a
request by the applicants for suspension (inhibition) of the
prohibition order.  That decision was confirmed by the
Administrative Court of Appeal on 2 July 1987 and, on 17 August, the
Supreme Administrative Court refused leave to appeal.
        2.      First set of proceedings challenging the prohibition
                on removal
14.     In the meantime, shortly after the decision of 23 June 1987
to prohibit removal, the applicants had appealed against it to the
County Administrative Court.  The court sought expert opinions from
Chief Doctors Jonsson and Finney.  According to these opinions,
dated 14 July and 3 September 1987, the prohibition was in Helena's
and Thomas's best interests because:
(a)     Helena had shown signs of anxiety at the prospect of being
        forced to return to her biological parents.  For instance,
        on learning about the lifting of the public care order, she
        had gone into hiding for two days; moreover, together with
        Thomas, she had worked out escape plans in the event of a
        return.  Whilst deriving a feeling of support from her
        foster parents and friends, she felt extremely uncertain,
        critical and hesitant about her natural parents.  Although
        the latter had demanded her return, they had not, in her
        view, indicated a willingness to form a relationship with
        her and this confused her.  Removing Helena from her foster
        home against her own wishes would entail a substantial risk
        to her mental well-being and also to her physical health if,
        in desperation, she were to carry out her plan of escaping
        from the applicants' home;
(b)     Thomas had suffered from certain childhood disturbances and
        had a retarded development.  It was especially on the
        emotional plane that he was handicapped; he was very
        dependent upon his foster mother and was in a fragile phase
        of his development.  To remove Thomas would have devastating
        effects on his mental development, both emotionally and
        intellectually.
        Further, the psychologist Löthman, also considered, in an
opinion supplied to the court on 3 September 1987, that remaining in
the foster home was in Thomas's best interests.  Mr Löthman observed
that Thomas had developed in a positive manner, although he
continued to be psychologically vulnerable and to have great
emotional needs.  His attachment to the foster family had clearly
been strong and positive; he had dismissed the idea, which gave rise
to fear and anxiety on his part, of returning to his natural
parents.  In that event he intended to escape.
        Both the Social Council and the guardian ad litem, Mr Åberg,
recommended that the appeal be rejected.  The applicants did not ask
for a hearing and the court did not hold one.  By judgment of
3 November 1987, it dismissed the appeal.
15.     The applicants appealed to the Administrative Court of
Appeal, asking it to revoke the prohibition on removal or, in the
alternative, to limit the measure in time, at the most until
6 January 1988.  Again they did not ask for a hearing; the Social
Council and the guardian ad litem recommended that the appeal be
dismissed.  The court examined the case on the basis of the
case-file and, by judgment of 30 December 1987, rejected the appeal.
16.     The applicants then proceeded with an appeal to the Supreme
Administrative Court, reiterating their request for revocation of
the prohibition on removal or, in the alternative, for limitation of
the measure in time, until 15 March 1988.  On this occasion they
asked for an oral hearing.
        Leave to appeal was granted on 4 February 1988.  On the same
date the court requested the National Board of Health and Welfare
(socialstyrelsen - "the Board") and the Social Council to submit
their opinions on the case, which they did on 22 and 23 March 1988,
respectively.
        Both opinions stressed the necessity of prohibiting removal
of the children.  The Social Council intended, should the appeal be
dismissed,  to ask for the custody of the children to be transferred
to their respective foster parents.
        The Board, for its part, pointed out that, having regard to
the long duration of the placement of the children in foster homes
and to the limited contacts they had had, further contacts must be
arranged under such conditions as would make the children feel
secure and would recognise their attachment to and feelings of
security in the foster homes.  Referring to the child psychiatrists'
and the psychologist's reports, the Board made mainly the same
observations as those mentioned above (see paragraphs 12 and 14).
It further noted, with regard to Thomas, that whilst it would take
time for a child of his character to build up confidence in adults,
his foster mother had succeeded in creating an environment in which
he could feel confident.  With regard to Helena, the Board also
stated that she had reached a phase of puberty and emancipation, the
normal course of which might be disturbed if she were forced to
leave the foster home.
        The Board further stressed that the relationship between the
natural parents and the children was of decisive importance for the
question of removal where, as in this case, the children had been
placed in foster homes for long periods of time.  In order to bring
about a good relationship, co-operation between - on the one hand -
the applicants and - on the other hand - the social welfare
authorities and the foster parents was essential.  It appeared from
the case-file that the applicants' lawyer had not sought to achieve
such co-operation, which was unfortunate for the children.  It had
had the consequence that no such relationship had been established
between the children and their parents as would make it possible for
the children to move to their parents without there being a serious
risk of harm to the children.  The Board recommended that the Social
Council examine the possibility of having the custody of the
children transferred to the foster parents.
17.     The Supreme Administrative Court rejected the applicants'
request for a hearing.  With regard to the merits, in a judgment of
30 May 1988 it dismissed their claim for revocation of the
prohibition on removal; it accepted, on the other hand, that the
measure should be limited in time and modified the decision under
appeal in such a way that the prohibition was to run until
30 June 1989.  The judgment contained the following reasons:
        "When section 28 ... is applied to this case a balance must
        be struck between, on the one hand, respect for the
        [applicants'] and their children's private and family life,
        including the [applicants'] rights as guardians according to
        the Parental Code, and, on the other hand, the need to
        safeguard the children's health (see the third paragraph of
        section 2 of Chapter 1 of the Instrument of Government
        [regeringsformen] and sections 1 and 12 of the Social
        Services Act; through these provisions the protection of
        private and family life referred to in Article 8 (art. 8)
        of the Convention ... can be ensured) ...
        ... When [public] care is terminated according to section 5
        of the 1980 Act reunion should normally take place as soon
        as possible [and] ... needs to be prepared in an active and
        competent manner.  Appropriate preparations should be made
        immediately after the care has been terminated.  This should
        be done even if a prohibition under section 28 ... has been
        issued ... . The character and the extent of the
        preparations, as well as the time required for them, depend
        on the circumstances in each case; one or more suitably
        arranged and successful visits by the children to their
        parents' home must always be required. The need for a
        prohibition on removal of a more permanent nature can
        normally only be assessed after appropriate preparations
        have been made.  It is the Social Council's responsibility
        to arrange the ... preparations for reuniting parents and
        children after the care has been terminated ... [This]
        responsibility includes an obligation to try persistently to
        make the parents and their lawyer participate, actively and
        in the children's best interests, in the preparations.  The
        Social Council is not discharged from its responsibility by
        the mere fact that [they], by appealing against the
        Council's decisions or in other ways, show that they dislike
        measures taken by the Council or its staff.  According to
        section 68 of the Social Services Act, the County
        Administrative Board should assist the Council with advice
        and ensure that the Council performs its tasks properly.
        Pending the beginning and completion of appropriate
        preparations for reunion of parents and children the
        question of a more temporary prohibition on removal under
        section 28 ... may also arise.  Such a prohibition should be
        seen as a temporary measure until the child can be separated
        from the foster home without any risk of harm as mentioned
        in that provision.
        ...
        It appears from the examination of the present case that no
        appropriate preparations have been made to reunite the
        parents and the children.  Instead, the time which has
        elapsed since the Supreme Administrative Court decided to
        terminate the public care seems to have been spent on
        litigation.
        The issue whether a prohibition on removal under section 28
        ... is needed in this case must therefore be examined
        without taking account of the effect of preparations that
        have been made.  The Supreme Administrative Court's decision
        should thus concern the kind of temporary prohibition on
        removal that, according to what has been stated above, can
        be issued pending more appropriate preparatory measures.
        From the examination - above all the opinion given by the
        Board and the medical certificates it quotes - it appears
        clearly that for the time being, before any preparations
        have been made, there is a risk which is not of a minor
        nature that Helena's and Thomas's physical and mental health
        would be harmed were they to be separated from their foster
        homes.  Accordingly, there are sufficient reasons for a
        prohibition on removal under section 28 ...
        As regards the duration of a prohibition on removal, the
        Supreme Administrative Court has in a previous decision (see
        Regeringsrättens Årsbok, RÅ 1984 2:78) stated inter alia the
        following: if, when the prohibition is issued, it is already
        possible to assess with sufficient certainty that there will
        be no such risk after a specific date - when some measures
        will have been taken or they will have had time to produce
        effects -, the prohibition must run only until that date.
        If, on the other hand, it is uncertain when the child could
        be transferred to the parents without this involving a risk
        which is not of a minor nature, the prohibition ought to
        remain in force until further notice and the question of a
        removal ought to be raised again at a later stage, when the
        risk of harming the child's health can be better assessed.
        An application of this rule to the present case would mean
        that a prohibition on removal should remain in force until
        further notice.  However, the circumstances of this case are
        different from those of the previous case, as no appropriate
        preparations have been made to reunite the parents and the
        children, owing to the serious conflict between the Social
        Council, on the one hand, and the parents and their lawyer,
        on the other.  Furthermore it must be presumed in this case
        that only a fixed time-limit might induce the parties
        - without any further litigation - to co-operate in taking
        appropriate preparatory steps in the children's interest.
        If, within a certain time-limit, no such preparations have
        been made or their result is unacceptable, the Social
        Council may raise the question of a prolonged prohibition
        based on the circumstances pertaining at that time.
        Having regard to the foregoing, the Supreme Administrative
        Court finds that the prohibition on removal should remain in
        force until 30 June 1989.
        The European Court of Human Rights has, in its judgment of
        24 March 1988, found that Sweden violated Article 8 (art. 8)
        of the Convention in one respect ... . This violation
        concerned the implementation of the care decision and, inter
        alia, the fact that the children were placed in foster homes
        situated so far away from their parents.  The issue in this
        case is another, namely when and on what conditions the
        children can be reunited with their parents in view of the
        termination of the care by the Supreme Administrative Court
        on 18 June 1987. A prohibition on removal ... is therefore
        not in conflict with the judgment of 24 March 1988."
        3.      Request to return the children in accordance with
                Chapter 21 of the Parental Code
18.     A request made by the applicants on 10 August 1987 that
Helena and Thomas be returned to them in accordance with section 7
of Chapter 21 of the Parental Code (föräldrabalken; see paragraph 71
below) had been rejected by the County Administrative Court of
Gävleborg, after a hearing on 1 March 1988, by two separate
judgments of 15 March 1988.  The court had found that there was a
not insignificant risk of harming the children's mental health by
separating them from the foster homes.
        In a judgment of 11 July 1988 the Administrative Court of
Appeal dismissed the applicants' appeal.  On 23 September 1988 the
Supreme Administrative Court refused them leave to appeal.
        4.      Appointments of a guardian ad litem
19.     In connection with the above proceedings concerning the
prohibition on removal, the District Court (tingsrätten) of
Gothenburg, at the Social Council's request, had appointed
Mr Claes Åberg on 17 July 1987 as guardian ad litem for Helena and
Thomas (section 2 of Chapter 18 of the Parental Code).  The
appointment had not been notified to the applicants, who had not
been heard on the matter; when their representative had learned
about it, on 4 August, the time-limit for appealing against it had
expired.
        The applicants had asked the District Court to dismiss the
guardian ad litem.  It had done so on 26 October, on the ground that
Mr Åberg, by having applied for legal aid on the children's behalf
to the County Administrative Court on 31 July, had accomplished the
task for which he had been appointed.
20.     On 27 October 1987 the Social Council had again asked the
District Court to appoint Mr Åberg as guardian ad litem.  On this
occasion the court had invited the applicants to state their views
before it took a decision.  It had granted the request on
12 February 1988.
        The applicants appealed to the Court of Appeal (hovrätten)
for Western Sweden, which dismissed the appeal on 23 August 1988.
On 8 November 1988 the Supreme Court (högsta domstolen) refused them
leave to appeal.
        5.      Second set of proceedings challenging the
                prohibition on removal
21.     On 28 September 1988 the applicants made a fresh request to
the Social Council to lift the prohibition on removal, invoking - as
a new circumstance - the Commission's opinion in the Eriksson v.
Sweden case (annexed to the Court's judgment of 22 June 1989,
Series A no. 156, pp. 38-55).  The request was rejected.
22.     In a judgment of 12 December 1988 the County Administrative
Court dismissed an appeal by the applicants against the Social
Council's decision.  The court, referring to the reasoning in the
Supreme Administrative Court's judgment of 30 May 1988 (see
paragraph 17 above), pointed out that no appropriate preparatory
measures for reunion as mentioned therein had been taken.  It
considered that there would still be a risk of harm to the children
if the prohibition on removal were lifted.
23.     A further appeal by the applicants to the Administrative
Court of Appeal was rejected on 22 December 1988.  It noted that
Mr Olsson had met the children on 11 and 12 October 1988 at their
respective foster homes and schools and that the children had
visited the applicants' home on 16 and 17 December, accompanied by
the foster parents.  The court found, nevertheless, for the reasons
expressed in the County Administrative Court's judgment, that the
prohibition should be maintained.
        Leave to appeal was refused by the Supreme Administrative
Court on 14 February 1989.
        6. Renewal of prohibition on removal and
           related proceedings
24.     On 27 June 1989, a few days before the expiry of the
prohibition on removal, the Social Council decided to renew it until
further notice.  Moreover, it refused a request by the applicants
that the children spend their summer holidays with them in Alingsås
and visit them every weekend, unaccompanied by the foster parents
(see paragraph 50 below).
25.     On appeal, the County Administrative Court, by judgment of
4 September 1989, confirmed the prohibition on removal but decided
that it was to run only until 31 March 1990.  The court again relied
on the reasoning in the Supreme Administrative Court's judgment of
30 May 1988 and noted, moreover, that few measures had been taken in
preparation for removal.  It was highly unsatisfactory that, as long
as two years after the termination of the public care, the
conditions for executing that decision had not been fulfilled.  The
court considered that reasons still existed for maintaining the
prohibition on removal and that, accordingly, the Swedish judiciary
and public authorities had failed in this respect.  Even though the
applicants and their lawyer had not contributed to a desirable
extent to facilitating the children's reunion with their parents,
the main responsibility for doing this lay with the Social Council,
which, as stressed by the court, also had a duty to implement
judgments.
26.     Both the applicants and the Social Council appealed to the
Administrative Court of Appeal; the applicants sought to have the
prohibition lifted, whereas the Social Council asked for it to be
maintained until further notice.  By judgment of 23 January 1990 the
court confirmed the lower court's decision, but extended the time-
limit for the prohibition until 1 August 1990.
        The applicants were refused leave to appeal by the Supreme
Administrative Court on 8 March 1990.
        7.      Further renewal of the prohibition on removal and
                related proceedings
27.     The Social Council asked the County Administrative Court, on
12 July 1990, to issue a new prohibition on removal, to be effective
until further notice.  By judgment of 27 July 1990, the court
renewed the prohibition until 28 February 1991.  It noted that no
preparatory measures with a view to reuniting the children and the
parents had been taken; such measures were necessary in view of the
atmosphere of hostility that existed between the parties to the
proceedings, which was detrimental to Helena and Thomas.  There were
therefore good reasons to maintain the prohibition on removal.  The
need for this measure was also shown by the fact that the question
of a transfer of the custody of the children to the foster parents
was scheduled for examination by the District Court in the autumn
(see paragraphs 53-54 below).
        The applicants lodged an appeal against this judgment with
the Administrative Court of Appeal.  They have apparently asked the
court to stay the proceedings pending the final outcome of those
concerning the transfer of custody.
    D.  The applicants' access to the children subsequent to the
        entry into force of the prohibition on removal
28.     Prior to the termination of the public care of Helena and
Thomas on 18 June 1987, the applicants' contacts with the children
had been sparse.  Access had, since February 1983, been restricted
to one visit every third month in the foster homes.  However, no
such visits occurred during the period from June 1984 until April
1987, when Mr Olsson and the elder son Stefan visited them (for
further details, see the above-mentioned Olsson I judgment,
pp. 15-16, paras. 21, 24-26).  It does not appear that any formal
decision with regard to access was taken in connection with the
decision of 23 June 1987 to prohibit the applicants from removing
Helena and Thomas from the foster homes.
        1.      Particulars concerning the applicants' access to
                Helena and Thomas
29.     Since the prohibition on removal was imposed on
23 June 1987, the following meetings have taken place between the
applicants and Helena and Thomas:
(a)     22 July 1988: a meeting of a few hours in a park in
        Gothenburg, the children being accompanied by one of the
        foster parents;
(b)     11 and 12 October 1988: visits by Mr Olsson in the foster
        homes;
(c)     16 and 17 December 1988: visits by the children, accompanied
        by the foster mothers, in the applicants' home, the night
        being spent in a hotel;
(d)     8 and 9 April 1989: visits by the applicants in the foster
        homes;
(e)     16 and 17 June 1989: visits by the children, accompanied by
        the foster mothers, in the applicants' home, the night being
        spent in a hotel.
        2. Access claims and related proceedings
30.     Shortly after the decision of 23 June 1987 to prohibit
removal, the applicants, through their lawyer, asked the social
welfare authorities to arrange for Helena and Thomas to visit them
in their home in Gothenburg.  By letter of 27 October 1987 from the
social welfare officer, they were advised that they should first
visit the children so that they could get to know them better and
prepare for a visit by the children in Gothenburg together with the
foster parents.  Subject to prior consultation with the foster
parents, the applicants were free to decide on the further
arrangements for visits in the foster homes.  Finally, the letter
indicated a possibility of refunding travel and subsistence expenses
incurred by the applicants in connection with their visits.
        Throughout the autumn of 1987, there was an exchange of
letters between the applicants' lawyer and the social welfare
authorities - mainly the Chief District Officer - on the question of
access.  Whilst the applicants insisted that the children visit them
without the foster parents, the Chief District Officer, referring to
the justifications for the prohibition on removal, maintained that
since Mrs Olsson had not met the children since 1984, both
applicants should first visit them in their respective foster home
environment.  Moreover, in the event of a visit by the children in
the applicants' home, at least one of the foster parents should be
present.
31.     On 18 December 1987 the Chairman of the Social Council
refused a request by the applicants to visit Helena and Thomas
without the foster parents being present.  She found no reason to
amend the Chief District Officer's decision on the matter.  On
21 December the Social Council was informed of the refusal; it
decided to take note of it but did not take any specific measures.
32.     The applicants appealed against the Chairman's decision to
the County Administrative Court, asking it to confer on them a right
of access as requested.  In a decision of 8 March 1988, the court
found that it was not possible to appeal, under section 73 of the
Social Services Act (see paragraph 60 below), against measures
prescribed by the Social Council as to the manner, time and place of
access and refused the appeal.
        On 29 April 1988 the Administrative Court of Appeal upheld
that judgment, noting that the Chairman's decision had not been
taken under section 28 of that Act and did not fall into any other
category of measures which could be appealed against pursuant to
section 73.
33.     The applicants then proceeded with an appeal to the Supreme
Administrative Court, alleging that the Chairman's decision of
18 December 1987 was unlawful and that the absence of a right of
appeal against it constituted a violation of Article 13 (art. 13)
of the Convention.  The court granted leave to appeal and, in a
decision (beslut) of 18 July 1988, refused the appeal.  It stated:
        "Under section 16 of the [1980 Act] ..., a Social Council
        may restrict the right of access in respect of children
        taken into public care under this Act.  As regards the right
        of access to children while a prohibition on removal is in
        force, no similar power has been vested in the Social
        Council in the relevant legislation.  As there is no legal
        provision empowering the Social Council to restrict the
        right of access while the prohibition on removal is in force
        ..., the instructions given by the Chairman of the Social
        Council in order to limit the right of access have no legal
        effect.  Nor can any right of appeal be inferred from
        general principles of administrative law or from the
        European Convention on Human Rights."
34.     On 15 August 1988 the applicants lodged a municipal appeal
(kommunalbesvär; see paragraph 63 below) with the Administrative
Court of Appeal against the Chairman's decision of 18 December 1987.
The court found that that decision could not form the object of a
municipal appeal and that, in so far as the appeal might be
considered as directed against the Social Council's failure to take
any specific measures when informed of the decision (see
paragraph 31 above), it was out of time.  The appeal was thus
dismissed on 10 October 1988.
35.     In the meantime, on 21 March and 11 April 1988, the social
welfare authorities had rejected requests by the applicants' lawyer
that Helena and Thomas be allowed to attend their grandmother's
funeral and a special burial ceremony and, in this connection, stay
for one night at the applicants' home.  The social welfare
authorities had pointed, inter alia, to the fact that the children
hardly knew their grandmother and to the need to arrange contacts in
an environment in which the children could feel safe and confident.
36.     In June and July 1988 the social welfare officer contacted
the applicants and arranged for talks involving Mr Olsson and the
foster parents, to plan the meeting which took place in Gothenburg
on 22 July 1988 (see paragraph 29 above).  Mrs Olsson did not
participate in these preparations, as she insisted on having access
on her own terms.  However, as suggested by the social welfare
officer, Helena's foster mother was invited to the applicants' home
after a preparatory meeting.  On one occasion the officer asked
Mr Olsson for his and his wife's telephone number in order to
facilitate contacts, but he declined to give it.
        After the meeting on 22 July 1988, Mr Olsson told the social
welfare authorities that he had been disappointed; he had felt that
he was being watched and controlled and Helena had called her foster
mother "mummy".
37.     On 8 August 1988 the social welfare authorities dismissed a
request made by the applicants on 2 August that Helena and Thomas be
allowed to join them - on 5 August or at the latest on 8 August -
for the rest of the summer holidays, on the ground that meetings
should be arranged in such a way as not to jeopardise the children's
health and development.
38.     On 11 August 1988 the applicants' lawyer demanded that the
children be permitted to visit them every weekend and school holiday
until 30 June 1989.  At a meeting with two social welfare officers
on 17 August 1988, Mr Olsson showed understanding of the view that
such visits were not appropriate and stated that he would recommend
a "soft line" in the efforts to bring about suitable access.  On his
suggestion, the next meetings were planned to take place in the
foster homes in October.  On 18 August the Social Council rejected
the request of 11 August.
39.     On 19 August 1988 the applicants' lawyer reiterated the
request for access at weekends.  In reply, the social welfare
officer informed her of the discussion with Mr Olsson on 17 August
(see paragraph 38 above).  A few days later, Mr Olsson told social
welfare officers that he was dissatisfied, on account of their
attempts to delay access as much as possible.  They reminded him
that he had himself proposed that the next meeting with the children
should be in October.  The meetings were held on 11 and
12 October 1988 (see paragraph 29 above).  On this occasion the
social welfare authorities booked and paid for air tickets and hotel
rooms for two persons, but Mrs Olsson declined to go.
        3.      Access plan
40.     On 7 December 1988 the Chief District Officer recommended an
access plan to the Social Council.  The recommendation referred,
inter alia, to two expert opinions, one by Chief Doctor Jonsson and
another by Chief Doctor Finney and the psychologist, Mr Löthman,
dated 10 and 12 October 1988, dealing specifically with the question
of access.  The former noted, with respect to Helena, that it was
important to place emphasis on her own wishes, to improve her
possibilities of knowing about her natural parents and to arrange
the access in a manner which would make it an everyday event; she
should meet the applicants together with the foster parents.  The
latter opinion stressed, with regard to Thomas, that access should
be resumed only if he so wished to which end certain preparatory
measures aimed at motivating him should be made - and only if
meetings were attended by the foster parents.  It was essential that
the natural parents and the foster parents co-operate in the child's
best interests.
        The plan envisaged access as follows:
(a)     on 16 and 17 December 1988: visit by the children,
accompanied by the foster mothers, in the applicants' home; if this
was successful:
(b)     visit by the applicants in the foster homes over two days in
February 1989; if this went well:
(c)     visit by the applicants to Thomas in his foster home and to
Helena, if she so wishes, in April 1989; again, if this went well:
(d)     visit similar to that mentioned at (a), to be organised over
a few days in June 1989 with a possibility of letting the children
choose to spend the night at the applicants' home rather than at a
hotel, provided that the foster mother accompany them;
(e)     in addition to the above, the applicants should be able to
arrange visits by agreement with the foster parents.
41.     The applicants met Helena and Thomas as envisaged at (a)
and, on 20 December 1988, the Social Council adopted the plan.  It
was communicated to the applicants and their lawyer for comments,
but they objected to it.
        4. Further access claims
42.     During 1989 and 1990 the applicants, through their lawyer,
continued to make a large number of requests for access; in
particular, they demanded that the children visit them during
weekends at their own home and without the foster parents being
present.
        Several of these requests were refused by the social welfare
authorities for such reasons as the children being opposed to
visiting the parents and wishing to be visited by them instead
(letters of 27 September 1989 and 7 February 1990) or too short
notice having been given to organise the visits (letters of 28 March
and 13 September 1989) or indications by Mr Olsson that he would
give the children a certain period to reflect on the matter during
which he would not claim access (letter of 11 October 1989).
        Moreover, the social welfare authorities dismissed on
21 April and 26 May 1989 requests that Helena and Thomas attend the
birthday celebrations of their grandfather and their brother Stefan.
In the former case, regard was had to the fact that Helena did not
wish to go and, in the latter case, to the fact that the date in
question was inconvenient, being the last day of the school year.
        Furthermore, on 21 March 1989 the Social Council refused
access for the purposes of a medical examination, which the
applicants had requested in order to obtain a medical certificate to
be used in the proceedings before the Commission.  The decision was
based on an opinion by the Board that further examination of the
children might be harmful to them and would be of no assistance in
those proceedings.
43.     In a report of 30 May 1989 to the social welfare
authorities, Chief Doctor Finney recommended that access should
continue to some extent between the applicants and Thomas and should
be arranged in his foster home, not in the applicants' home.  A
similar view was expressed by the psychologist, Mr Löthman, in his
report of the same date.  According to a report of 13 June supplied
by Chief Doctor Jonsson to the social authorities, Helena found that
travelling to the applicants' home was a trying experience and
preferred being visited by them.  In his view, contacts served to
fulfil her need to be kept informed about the applicants.
        The Chief District Officer, in a report of 15 June 1989,
made the following assessment of the question of access.  Having
regard to the fact that visits by the children in the applicants'
home would not only conflict with expert opinions but were also not
welcomed by the children, access arrangements should primarily
consist of the parents visiting the children in the foster homes.
However, should the children express an interest in visiting the
applicants, the social welfare authorities would assist in arranging
such contacts.  In the light of these considerations, the Chief
District Officer adopted a plan for visits by the parents in August
and October 1989 and then by the children in December 1989.  The
applicants were invited to contact the social welfare authorities on
the matter, but did not do so.  The reason for this, as later
explained by Mr Olsson, was that on a previous occasion he had not
been received properly by the social welfare officer responsible for
their case.
44.     By letter of 16 November 1989, the applicants again asked
for the children to be allowed to visit them every weekend; they
also sought permission, firstly, for themselves and their son Stefan
to visit the children in one of the foster homes without the foster
parents being present and, secondly, for their lawyer to meet Helena
and Thomas to inform them of the applicants' and Stefan's situation
and to explain to them why they had been taken into public care and
why the applicants did not wish to visit them in the foster homes in
the foster parents' presence.
        The Head of the Social Service (socialförvaltningen) in
Gothenburg replied by letter of 20 November 1989 that the social
welfare officer would contact them as soon as possible with a view
to making a suitable arrangement for their next meeting with the
children.
45.     On 21 November 1989 the social welfare authorities received
a letter from the applicants' lawyer reiterating the claims of
16 November.  A further letter was received on 22 December,
requesting access to the children in one of the foster homes in the
absence of the foster parents.  In reply to the latter, the social
welfare authorities informed the lawyer on 27 December that they
would contact the foster parents directly on the matter.
46.     On 21 December 1989 the applicants had reported the officer
in charge of their case to the Public Prosecution Authority
(åklagarmyndigheten) of Gothenburg for misuse of power and asked for
her immediate arrest.  The reason for this action was her failure to
comply with their request of 16 November 1989.  On 30 January 1990
the Public Prosecution Authority discontinued the criminal
investigation, finding no indication that a criminal offence had
been committed.
47.     In a letter dated 25 January 1990, the social welfare
authorities invited the applicants to talks in order to find a
solution to the problem of access but, by letter received on
1 February from the applicants' lawyer, they were advised that such
talks would serve no purpose.
48.     In response to letters from the applicants' lawyer, dated
13 February and 2 March 1990 and mainly reiterating their requests
made in November and December 1989, the social welfare authorities,
by letter of 8 March, pointed out that they were not opposed to
meetings; they invited the applicants to contact the foster parents
to make arrangements, failing which the applicants would be
contacted by the latter.
49.     On 14 May 1990 the applicants' lawyer demanded that the
children be left to be met by the parents at Gothenburg airport on
certain specified dates and, on 5 June, she requested that this be
arranged every weekend.  In the meantime, on 17 May, the social
welfare authorities had replied that Thomas's foster mother would
write to them and had also asked the applicants to contact the
foster parents by telephone, as the former had a secret telephone
number.  On 6 June the lawyer asked the Social Council to grant
- immediately after 1 July (the date of the entry into force of the
1990 Act; see paragraphs 64 and 67 below) - access every weekend at
the applicants' own home and in the absence of the foster parents.
        In this connection, the Chief District Officer submitted to
the Social Council a report, dated 2 July 1990, making observations
similar to those in her report of 15 June 1989 (see paragraph 43
above) and recommending that the request be dismissed.  The report
noted, inter alia, that since the meeting in June 1989, the children
had become strongly opposed to visiting their parents but were open
to being visited by them.  The applicants' demands as to the forms
of access had had the effect of increasing the gap between them and
the children.
        On 4 September 1990 the Social Council dismissed the
applicants' request for access every weekend at their own home,
finding that access should instead take place in the foster homes in
conformity with the children's wishes.
        5.      Further proceedings concerning access
50.     The applicants' lawyer, in her capacity as a member of the
municipality of Gothenburg, filed two municipal appeals (see
paragraph 63 below) with the Administrative Court of Appeal: one was
against the Social Council's decision of 27 June 1989 (see
paragraph 24 above) in so far as it concerned access and the other
against its decision of 20 December 1988 adopting an access plan
(see paragraphs 40-41 above).
        With regard to the first appeal, the court found, by
judgment of 8 January 1990, that the contested part of the Social
Council's decision of 27 June 1989 was unlawful and annulled it.
        As to the second appeal, the court held, in another judgment
of the same date, that the adoption of the plan formed part of the
measures considered necessary by the Social Council in order to
permit removal of the children without there being any risk of harm
to them.  The plan was not a formal decision on the applicants'
right of access, especially since it provided that they could visit
the children in accordance with the latter's wishes.
        On 8 March and 27 December 1990, respectively, the Supreme
Administrative Court refused the applicants' lawyer leave to appeal
against the second judgment and the Social Council leave to appeal
against the first.
51.     Moreover, on 28 July 1989 the applicants complained to the
Parliamentary Ombudsman (justitieombudsmannen) who, in an opinion of
2 May 1990, stated, inter alia, that it appeared from the
examination of the case that the Social Council had acted solely out
of consideration for the children.  In view of this fact and of the
lacunae in the Social Services Act 1980 on the question of
regulation of access (see paragraph 62 below) - which had led to
legislative amendments in 1990 (see paragraphs 64 and 67 below) -,
she declared the matter closed.
52.     The applicants also lodged an appeal with the County
Administrative Court against the Social Council's decision of
4 September 1990 (see paragraph 49 above).  It was dismissed by
judgment of 12 December 1990.  The court found that the applicants'
allegation that the foster parents had influenced the children
against their natural parents was not borne out by the
investigations in the case; on the contrary, they showed that the
children wished to meet their parents, albeit on their terms.
Moreover, the sort of access requested did not take the children's
interests into account and would not benefit them.  There was
therefore no ground for allowing access during weekends, as
requested by the applicants.  The court did not examine their claim
for access during school holidays as this had not been dealt with by
the Social Council.
        The applicants further appealed to the Administrative Court
of Appeal.  They appear to have asked the court to keep their appeal
in abeyance pending the outcome of the transfer of custody
proceedings (see paragraphs 53-54 below).
        E.      Transfer of custody
53.     Although the present judgment is not concerned with the
question of transfer of custody, the decisions by the Swedish
authorities on the matter are described below in so far as they may
shed light on the case.
        The Social Council decided on 31 October 1989 to institute
proceedings in the District Court of Alingsås for a transfer of the
custody of Helena and Thomas to their respective foster parents.
After holding a preliminary hearing on 27 February 1990, the court,
by judgment of 24 January 1991, transferred the custody.  It ordered
that the applicants should each year receive three day-time visits
from the children at their home and be able to visit them at the
foster homes for three weekends.
54.     The applicants appealed against the District Court's
judgment to the Court of Appeal for Western Sweden.  The latter held
a hearing at which it took evidence from two welfare officers who
had been responsible for the case, the children's respective foster
parents, Chief Doctors Jonsson and Finney, as well as Helena and a
contact person (kontaktman) of hers within the social services.  The
applicants maintained, inter alia, that the foster parents were
unsuited as custodians.  In particular, they contended that they had
learned after the District Court judgment that Helena's foster
father, Mr Larsson, had been charged in 1986-87 with assault,
including sexual assault, and sexual exploitation of a minor, namely
another foster girl called "Birgitta".  Mr Larsson had been
acquitted by Hudiksvall District Court due to lack of evidence.
However, he had stated during the police investigations that he had
acted in a manner which, according to the applicants, constituted
sexual assault, although it had not been covered by the charges.
The public prosecutor had appealed against the acquittal but had
subsequently withdrawn the appeal.
        By judgment of 24 January 1992, the Court of Appeal upheld
the Alingsås District Court's judgment.  It stated, inter alia,
that, having regard to Helena's and Thomas's age and degree of
maturity, great importance should be attached to their views about
the questions of custody and access.  It was clear that they both
wanted to remain in their foster homes.  Moreover, contacts between
the applicants and the children had been very infrequent, especially
in recent years.  According to the applicants, they had been
prevented from exercising their right of access partly because they
had previously felt unwelcome and been badly treated by the foster
parents, and partly because the social welfare authorities had been
opposed to providing financial assistance for journeys to meet the
children.  However, these allegations were refuted by the social
welfare officers and the foster parents.  In the view of the Court
of Appeal, the absence of contacts was due rather to lack of desire
and initiative on the part of the applicants to visit the children.
In addition, the applicants had kept their telephone number secret.
        The claim that the foster parents were unsuited as
custodians was mainly directed against Helena's foster father,
Mr Larsson.  The court found that when giving evidence before it, he
had left an impression of reliability and honesty, despite the fact
that he must have been under pressure due to his wife's illness and
the manner in which he was questioned by the applicants' lawyer.
Further, the court observed that the conditions in the Larssons'
home had been examined carefully on a number of occasions during the
relevant period; Helena had good contacts with people in her
environment and had since recently had a contact person who had been
heard by the court; moreover, she had visited the applicants on her
own in March 1991: on no occasion had she said that she had been
assaulted by Mr Larsson or shown any sign to this effect.  At the
hearing before the court, she had emphatically denied that he had
behaved improperly towards her.  The court found that there was no
evidence to support the allegation that Helena had been, or ran a
risk of being, a victim of improper conduct on the part of
Mr Larsson.  As regards Mrs Larsson's illness, the Court of Appeal
noted that she spent most of her time at home and that both
Mr Larsson's and Helena's statements indicated that the emotional
ties between Helena and Mrs Larsson had been strengthened, rather
than weakened, since she became ill.  The illness could thus not
constitute an obstacle to the transfer of custody.  Finally, the
investigations provided no evidence to suggest that Thomas's foster
parents, Mr and Mrs Bäckius, were unsuited.  On the contrary, what
emerged in the proceedings was that both children were well cared
for in the foster homes, in a secure and stimulating environment.
        A further appeal by the applicants to the Supreme Court is
currently pending.
II.     RELEVANT DOMESTIC LAW
    A.  The Child Welfare Act 1960 and the 1980 legislation
        replacing it
55.     Decisions concerning the applicants' children were based on
the Child Welfare Act 1960 (barnavårdslagen 1960:97 - "the 1960
Act"), the Social Services Act 1980 (socialtjänstlagen 1980:620) and
the 1980 Act containing Special Provisions on the Care of Young
Persons (lagen 1980: 621 med särskilda bestämmelser om vård av unga
- "the 1980 Act").
        The Social Services Act 1980 contains provisions regarding
supportive and preventive measures effected with the approval of the
individuals concerned.  The 1980 Act (1980:621), which provided for
compulsory care measures, complemented the Social Services Act 1980;
when they entered into force on 1 January 1982, they replaced the
1960 Act.  In general, decisions taken under the 1960 Act, which
were still in force on 31 December 1981, were considered to have
been taken under the 1980 Act.  As from 1 July 1990 the relevant
legislation has been amended (see paragraphs 64-67 below).
56.     It is primarily the responsibility of the municipalities to
promote a positive development for the young.  For this purpose each
municipality has a Social Council, composed of lay members assisted
by a staff of professional social workers.
        1. Prohibition on removal
57.     The Social Council could, after the termination of public
care (for details of the Swedish law on compulsory care, see the
Olsson I judgment, pp. 20-27, paras. 35-50), issue a prohibition on
removal under section 28 of the Social Services Act, which read as
follows:
        "The Social Council may for a certain period of time or
        until further notice prohibit the guardian of a minor from
        taking the minor from a home referred to in section 25 [i.e.
        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
        separated from that home.
        If there are reasonable grounds to assume that there is such
        a risk, although the necessary investigations have not been
        completed, a temporary prohibition may be issued for a
        maximum period of four weeks, pending the final decision in
        the matter.
        A prohibition issued under this section does not prevent a
        removal of the child from the home on the basis of a
        decision under Chapter 21 of the Parental Code."
        The preparatory work (Prop. 1979/80:1, p. 541) relevant to
this provision mentioned that a purely passing disturbance or other
occasional disadvantage to the child was not sufficient ground for
issuing a prohibition on removal.  It stated that the factors to be
considered when deciding whether or not to issue such a prohibition
included the child's age, degree of development, character,
emotional ties and present and prospective living conditions, as
well as the time he had been cared for away from the parents and his
contacts with them while separated.  If the child had reached the
age of 15, his own preference should not be opposed without good
reasons; if he was younger, it was still an important factor to be
taken into account.
        The Standing Social Committee of the Parliament stated in
its report (Socialutskottets betänkande 1979/80:44, p. 78), inter
alia, that a prohibition might be issued if removal could involve a
risk of harm to the child's physical or mental health, thus even
where no serious objections existed in regard to the guardian.  The
Committee also stressed that the provision was aimed at safeguarding
the best interests of the child and that those interests must
prevail whenever they conflicted with the guardian's interest in
deciding the domicile of the child.  It also took as its point of
departure the assumption that a separation generally involved a risk
of harm to the child.  Repeated transfers and transfers which took
place after a long time, when the child had developed strong links
with the foster home, should thus not be accepted without good
reasons: the child's need for secure relations and living conditions
should be decisive.
58.     According to the case-law of the Supreme Administrative
Court (RÅ 1984 2:78), while a prohibition on removal is in force,
the Social Council is under a duty to ensure that appropriate
measures aimed at reuniting parents and child are taken without
delay.
59.     Section 28 of the Social Services Act did not apply to
children who were being cared for in foster homes under section 1 of
the 1980 Act.  As long as such care continued, the right of the
guardian to determine the domicile of the child was suspended.
Whilst that right in principle revived on the termination of such
care, it could be further suspended by an application of section 28
by the social welfare authorities.
60.     Under section 73 of the Social Services Act, a decision
taken under section 28 could be appealed to the administrative
courts.  In practice, besides the natural parents both the child
concerned and the foster parents have been allowed to lodge such
appeals.  In the proceedings before the administrative courts, a
special guardian may be appointed to protect the interests of the
child, should these come into conflict with those of the child's
legal guardian.
        2. Regulation of access
61.     While a child was in public care under the 1980 Act, the
Social Council was empowered to impose restrictions on the parents'
right of access to him, in so far as necessary for the purposes of
the care decision (section 16).  Such restrictions could be appealed
against to the administrative courts by both the parents and the
child.
62.     The legal position concerning restrictions on access during
a prohibition on removal was different.  As held by the Supreme
Administrative Court on 18 July 1988, a decision by the Social
Council to restrict the access rights of Mr and Mrs Olsson - who
were the appellants in that case - while a prohibition on removal
under section 28 of the Social Services Act was in force had no
legal effect and no appeal to the administrative courts would lie
against such a decision (see paragraph 33 above).
        3. Municipal appeal
63.     Pursuant to sections 1 and 2 of Chapter 7 of the 1977
Municipal Act (kommunallagen 1977:179), a member (medlem, e.g. a
resident) of a municipality may lodge a municipal appeal
(kommunalbesvär) with the Administrative Court of Appeal against
decisions by municipalities on the following grounds: failure to
observe the statutory procedures, infringement of the law, ultra
vires conduct, violation of the complainant's own rights, or other
unfairness.  The appeal has to be filed within three weeks from the
date on which approval of the minutes of the decision has been
announced on the municipal notice-board.  If the court upholds the
appeal, it may quash the decision, but not give a new decision.
    B.  New legislation
64.     The provisions of the Social Services Act which related to a
prohibition on removal are now contained, in amended form, in the
1990 Act with Special Provisions on the Care of Young Persons (lagen
1990:52 med särskilda bestämmelser om vård av unga - "the 1990
Act").  This entered into force on 1 July 1990.
65.     Section 24 of the 1990 Act, which corresponds to the
previous section 28 of the Social Services Act (see paragraph 57
above), provides that the County Administrative Court may, on
application by the Social Council, impose a prohibition on removal
for a certain time or until further notice.  The condition for such
a prohibition is that there must be
        "an apparent risk (påtaglig risk) that the young person's
        health and development will be harmed if he is separated
        from the home".
        Although this wording differs from that of section 28 of the
1980 Act, it was not intended, according to the preparatory work
(Prop. 1989/90:28, p. 83), to introduce a new standard.
66.     According to section 26 of the 1990 Act, the Social Council
shall, at least once every three months, consider whether a
prohibition on removal is still necessary.  If it is not, it shall
lift the prohibition.
67.     Pursuant to section 31, the Social Council may decide to
regulate the parents' access to the child if it is necessary in view
of the purposes of the prohibition on removal.  Such decisions may,
under section 41, be appealed against to the administrative courts.
    C.  The Parental Code
68.     Chapter 21 of the Parental Code deals with the enforcement
of judgments or decisions regarding custody and other related
matters.
69.     Section 1 specifies that actions for the enforcement of
judgments or decisions by the ordinary courts concerning the custody
or surrender of children or access to them are to be instituted
before the County Administrative Court.
70.     According to section 5, enforcement may not take place
against the will of a child who has reached the age of 12 unless the
County Administrative Court finds enforcement to be necessary in the
child's best interests.
71.     Under section 7, if the child is staying with someone other
than the person entitled to custody, the child's custodian may, even
when no judgment or decision as described in section 1 exists, seek
from the County Administrative Court an order for the transfer of
the child to him.  Such an order may be refused if the best
interests of the child require that the question of custody be
examined by the ordinary courts.
        When taking decisions under this section, the County
Administrative Court shall also observe the requirements laid down
in section 5 (see paragraph 70 above).
PROCEEDINGS BEFORE THE COMMISSION
72.     In their application of 23 October 1987 to the Commission
(no. 13441/87), Mr and Mrs Olsson alleged a series of violations of
Article 8 (art. 8) of the Convention on the ground, inter alia, that
the Swedish social welfare authorities had hindered their reunion
with Helena and Thomas and had prevented the applicants from having
access to them.  They also complained of a number of breaches of
Article 6 (art. 6) and, in addition, invoked Articles 13 and 53
(art. 13, art. 53).
73.     On 7 May 1990 the Commission declared the application
admissible.
        In its report dated 17 April 1991 (Article 31) (art. 31),
the Commission expressed the opinion:
        (a)     unanimously, that there had been a violation of
        Article 8 (art. 8) on the ground that the restrictions on
        access were not "in accordance with the law";
        (b)     by seventeen votes to three, that there had been a
        violation of Article 8 (art. 8) with regard to the
        prohibition on removal;
        (c)     unanimously, that there had been a violation of
        Article 6 para. 1 (art. 6-1) on the ground that the
        applicants did not have access to court to challenge the
        restrictions on access to the children;
        (d)     by fourteen votes to six, that there had been no
        violation of Article 6 para. 1 (art. 6-1) as a result of the
        duration of the proceedings concerning the termination of
        the public care of Stefan, Helena and Thomas;
        (e)     by nineteen votes to one, that there had been no
        violation of Article 6 para. 1 (art. 6-1) with regard to the
        duration of the proceedings under Chapter 21 of the Parental
        Code;
        (f)     by nineteen votes to one, that there had been no
        violation of Article 6 para. 1 (art. 6-1) on the ground that
        the Supreme Administrative Court did not hold a hearing on
        the applicants' appeal concerning the prohibition on
        removal;
        (g)     unanimously, that there had been no violation of
        Article 6 para. 1 (art. 6-1) in relation to the first
        appointment of a guardian ad litem;
        (h)     unanimously, that there had been no violation of
        Article 6 para. 1 (art. 6-1) as a result of the duration of
        the proceedings relating to the second appointment of a
        guardian ad litem;
        (i)     unanimously, that it was not necessary to examine
        whether there had been a violation of Article 13 (art. 13)
        in respect of the restrictions on access;
        (j)     unanimously, that there had been no violation of
        Article 13 (art. 13) in respect of the first appointment of
        a guardian ad litem.
        The full text of the Commission's opinion and the dissenting
opinion contained in the report is reproduced as an annex to the
present judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 250 of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
74.     At the hearing on 22 April 1992, the Government confirmed
the final submission in their memorial admitting violations of the
Convention in that, for a certain period, the restrictions on access
decided by the Social Council were not "in accordance with the law"
and that the applicants had not had a court remedy in respect of
those restrictions.  On the other hand, they invited the Court to
hold that there had been no violation of the Convention in the
present case other than those admitted by them.
AS TO THE LAW
I.      SCOPE OF THE CASE BEFORE THE COURT
75.     The present application of 23 October 1987, as declared
admissible by the Commission, raised a series of complaints as to
(1) the prohibition on removal, its maintenance in force and the
restrictions on the applicants' access to the children while the
prohibition was in force; (2) the length of certain specific
domestic proceedings and the lack of a hearing on appeal; and (3)
alleged violations of the right of access to a court or to an
effective remedy with respect to certain decisions (see the
Commission's decision on admissibility, under the heading
"Complaints", and paragraphs 95 and 176-185 of its report).
        In their subsequent pleadings, the applicants appeared to
raise a number of further complaints relating to (a) the decision to
transfer custody of Helena and Thomas to their respective foster
parents (see paragraphs 53-54 above); (b) the independence and
impartiality of the courts which made or upheld this decision; and
(c) the total length of the national proceedings (which had started
in 1980 and were not yet terminated).
        These new complaints were, however, not covered by the
Commission's decision on admissibility.  It is true that, on certain
conditions, the rule that the scope of the Court's jurisdiction is
determined by the Commission's admissibility decision may be subject
to qualifications (see, inter alia, the Olsson I judgment, p. 28,
para. 56), but the complaints in question do not meet those
conditions.  The Court therefore has no jurisdiction to entertain
them.
        Accordingly, it will not go into the applicants'
circumstantial allegations before the Court to the effect that the
foster parents of Helena and Thomas were for various reasons
unsuited as carers.  The Court presumes, as the Government evidently
did, that these allegations were made solely in support of the
complaints made by the applicants in respect of the transfer of
custody proceedings.  The Court notes, however, that the allegations
were rejected after careful examination by the Court of Appeal for
Western Sweden in those proceedings (see paragraph 54 above).
II.     ALLEGED VIOLATIONS OF ARTICLE 8 (art. 8) OF THE CONVENTION
    A.  Introduction
76.     The applicants' complaints under Article 8 (art. 8) of the
Convention concerned the period from 18 June 1987, when the public
care of Helena and Thomas was terminated (see paragraph 10 above),
to 24 January 1991, when the custody of these children was
transferred to their respective foster parents (see paragraphs 53-54
above).  The applicants contended that the prohibition on removal,
its maintenance in force and the restrictions on access had given
rise to breaches of Article 8 (art. 8) of the Convention, which
provides as follows:
        "1.     Everyone has the right to respect for his private
        and family life, his home and his correspondence.
        2.      There shall be no interference by a public authority
        with the exercise of this right except such as is in
        accordance with the law and is necessary in a democratic
        society in the interests of national security, public safety
        or the economic well-being of the country, for the
        prevention of disorder or crime, for the protection of
        health or morals, or for the protection of the rights and
        freedoms of others."
        The Government admitted that there had been a violation of
Article 8 (art. 8) in that until 1 July 1990 the restrictions on
access had no basis in domestic law, but otherwise contested the
applicants' allegations.  The Commission reached a corresponding
conclusion with respect to the restrictions on access, but also
expressed the opinion that the maintenance in force of the
prohibition on removal, without any meaningful contact between the
applicants and their children being established and without any
other effective measure to resolve the existing problems,
constituted a violation of Article 8 (art. 8).
    B.  Was there an interference with the applicants' right to
        respect for family life?
77.     The prohibition on removal and its maintenance in force, as
well as the restrictions on access, clearly constituted, and this
was not disputed, interferences with the applicants' right to
respect for family life (see, amongst other authorities, the above-
mentioned Eriksson judgment, Series A no. 156, p. 24, para. 58).
        Such interference entails a violation of Article 8 (art. 8)
unless it is "in accordance with the law", has an aim or aims that
is or are legitimate under Article 8 para. 2 (art. 8-2) and is
"necessary in a democratic society" for the aforesaid aim or aims
(ibid.).
    C.  Were the interferences justified?
        1. "In accordance with the law"
78.     In the applicants' submission, the measures taken by the
Swedish authorities had, contrary to Swedish law, been intended to
prevent them from being reunited with Helena and Thomas and from
having appropriate access to them.  On the other hand, the
applicants did not seem to question the lawfulness of access
restrictions imposed after the entry into force of the 1990 Act on
1 July 1990 (see paragraph 67 above).
                (a) Prohibition on removal
79.     The Court observes that the prohibition on removal and its
maintenance in force were based until July 1990 on section 28 of the
Social Services Act 1980 and then on section 24 of the 1990 Act,
which replaced section 28.  Furthermore, it does not appear from the
material before the Court that these measures were motivated by any
considerations other than those mentioned in the relevant
provisions, namely the protection of the children's health.  There
is no evidence for the contention that they were taken in order to
prevent the reunion of Helena and Thomas with their parents.
        Moreover, the measures had been upheld on appeals to, or
been renewed by, the administrative courts, albeit in some instances
subject to certain time-limits (see paragraphs 14-17, 22-23 and
25-27 above).  In this connection, it is to be recalled that it is
primarily for the national authorities, notably the courts, to
interpret and apply domestic law (see, inter alia, the Margareta and
Roger Andersson v. Sweden judgment of 25 February 1992, Series A
no. 226-A, pp. 27-28, para. 82).
80.     Having regard to the foregoing, the Court, like the
Commission and the Government,  considers that the prohibition on
removal and its maintenance in force were "in accordance with the
law".
                (b) Restrictions on access
81.     On the other hand, according to an authoritative
interpretation of Swedish law by the Supreme Administrative Court in
the present case, the imposition of restrictions on access while a
prohibition on removal under the Social Services Act 1980 was in
force lacked any legal effect, as there was then no legal provision
on which such restrictions could be based (see paragraph 33 above
and the above-mentioned Eriksson judgment, Series A no. 156, p. 25,
para. 65).  This situation lasted from 23 June 1987 to 1 July 1990,
when the 1990 Act entered into force.  During this period, the
impugned restrictions - as conceded by the Government - were not "in
accordance with the law" for the purposes of Article 8 (art. 8).
82.     There has accordingly been a violation of Article 8 (art. 8)
of the Convention in so far as concerns the restrictions on access
between 23 June 1987 and 1 July 1990.
        2. Legitimate aim
83.     According to the applicants, the aim of the contested
measures was to prevent their reunion with Helena and Thomas.
Moreover, they claimed that they had not been allowed to meet them
on their own because the social welfare authorities and the foster
parents had been afraid that the children might disclose information
about unsatisfactory living conditions in the foster homes.
84.     However, as already stated above (see paragraph 79), there
is no evidence that the purpose of the prohibition on removal and
its maintenance in force was to hinder reunion; the Court shares the
view of the Commission and the Government that this measure was
aimed at protecting the children's "health" and "rights and
freedoms".
85.     The Court considers that on this occasion it should examine
the aims of all the restrictions on access, irrespective of their
periods of application.  It does not find it established that any of
them was aimed at preventing the family's reunion or the disclosure
of information of the kind indicated by the applicants.  On the
contrary, it is convinced that they pursued the same legitimate aims
as the measures referred to in paragraph 84 above.
        3. "Necessary in a democratic society"
86.     According to the applicants, the interferences were not
"necessary in a democratic society".  The Government contested this
allegation but the Commission accepted it.
87.     In exercising its supervisory jurisdiction the Court must
determine whether the reasons given for the prohibition on removal,
its maintenance in force until the transfer of custody and the
restrictions on access which were in operation throughout this
period were "relevant and sufficient" in the light of the case as a
whole (see the Olsson I judgment, p. 32, para. 68).  This
determination must start with the Social Council's decision of
23 June 1987 - immediately after the Supreme Administrative Court's
judgment of 18 June 1987 terminating the public care - to prohibit
removal of Helena and Thomas from their respective foster homes.
        That decision - which was unanimously upheld, at three
levels, by administrative courts which had the benefit of reports
from child psychiatrists and a psychologist as well as from
specialised agencies was essentially based on the consideration that
separating the children from their foster homes would, in the
circumstances obtaining at the time, involve a serious risk of harm
to the children's physical and mental health (see paragraphs 12-17
above).
        The prohibition on removal order must be evaluated against
the following background which appears from the file.
        Helena and Thomas had been cared for in the foster homes for
a long period that had begun at the end of 1980, in fact for most of
their lives.  Their contacts with their natural parents had been
very sparse indeed: they had not met their mother since 1984, they
had since seen their father only once and there had been no other
contacts with their parents.  They had become strongly attached to
their respective foster families and environment, in which they had
developed in a positive and harmonious manner.  Both children had
expressed a strong wish to remain in the foster homes, had shown
anxiety about the possibility of being forced to return to their
natural parents and had indicated that they would run away were they
to be so returned.  Helena was in an important phase of her personal
development, which might be impaired if she were to be returned
against her own wishes.  Thomas had suffered from certain childhood
disturbances and was still psychologically very vulnerable as well
as emotionally dependent upon his foster parents.  Separating him
from the latter was likely to cause him considerable and
long-lasting psychological harm.
        Against this background the reasons for ordering the
prohibition on removal were, in the Court's opinion, both relevant
and sufficient.
88.     The prohibition on removal lasted until the transfer of
custody, that is, for a total of three and a half years (June 1987 -
January 1991).  The original order was upheld in three sets of
proceedings and was twice renewed, in 1989 by the Social Council and
in 1990, under the 1990 Act, by the County Administrative Court.
The applicants appealed each time, but these appeals were
unanimously dismissed (see paragraphs 14-17 and 21-27 above).
        In all of these decisions the national courts found that
there remained a serious risk that separating the children from
their foster homes would harm them; they pointed out in particular
that there had been insufficient preparatory contacts between them
and the applicants.
        Given that the factors indicated in paragraph 87 above did
not essentially change during the period under review, the Court
finds that the reasons for the maintenance in force of the
prohibition on removal were in any case "relevant".  Whether they
were also "sufficient" cannot be ascertained without inquiring why,
despite the fact that as early as the first set of proceedings
relating to the prohibition on removal the Swedish courts had time
and again stressed the crucial importance of adequate preparatory
contacts, these contacts remained insufficient during the whole
period.  It is in this context that the restrictions on access have
to be assessed.
89.     The restrictions on access which applied throughout this
period amounted to the following: while the applicants were free to
visit the children in their foster homes as often as they wished,
meetings outside those homes would be organised or allowed only
under such conditions as would dispel the children's apprehensions.
        These restrictions - which were supported by opinions of two
psychiatrists and a psychologist (see paragraphs 40, 43 and 49
above) and, above all, were in accordance with the repeated wishes
of the children - were based on reasons similar to those underlying
the prohibition on removal.  The authorities took the view that not
only the children's interests but also their rights under Article 8
(art. 8) of the Convention prevented the authorities from allowing
requests for access under conditions which were unacceptable to the
children.
        In view of the situation which obtained, the Court finds
that the restrictions on access were based on reasons which were
"relevant" when it comes to ascertaining whether these restrictions
were "necessary in a democratic society".  It remains to be seen
whether they also were "sufficient": for this purpose they must be
assessed in the context indicated at the end of paragraph 88 above.
90.     In doing so, the Court notes firstly that, both under
Swedish law and under Article 8 (art. 8) of the Convention, 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 (art. 8) includes a right for the natural
parents to have measures taken with a view to their being reunited
with their children (see, as the most recent authority, the Rieme v.
Sweden judgment of 22 April 1992, Series A no. 226-B, p. 71,
para. 69) and an obligation for the national authorities to take
such measures.
        However, neither the right of the parents nor its
counterpart, the obligation of the national authorities, is
absolute, since the reunion of natural parents with children who
have lived for some time in a foster family needs preparation.  The
nature and extent of such preparation may depend on the
circumstances of each case, but it always requires the active and
understanding co-operation of all concerned.  Whilst national
authorities must do their utmost to bring about such co-operation,
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 (art. 8) of the
Convention.  Where contacts with the natural parents would harm
those interests or interfere with those rights, it is for the
national authorities to strike a fair balance (see, mutatis
mutandis, the Powell and Rayner v. the United Kingdom judgment of
21 February 1990, Series A no. 172, p. 18, para. 41).
        In sum, what will be decisive is whether the national
authorities have made such efforts to arrange the necessary
preparations for reunion as can reasonably be demanded under the
special circumstances of each case.
        It is for the Court to review whether the national
authorities have fulfilled this obligation.  In doing so, it will
leave room for a margin of appreciation, if only because it has to
base itself on the case-file, whereas the domestic authorities had
the benefit of direct contact with all those concerned.
91.     In this connection the Court notes in the first place that
the judgments rendered by the Swedish courts during the period under
consideration contain some passages which might be understood as
criticising the social welfare authorities for deficiencies in the
making of appropriate preparations for reunion, but equally as
urging them not to let themselves be influenced by the antagonistic
course taken by the applicants and their counsel.  However, the
judgments which were given afterwards, 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.
        Indeed, the Swedish courts repeatedly stressed that in order
to arrange adequate preparatory contacts, good co-operation between
the social welfare authorities and the foster parents on the one
hand and the applicants on the other hand was essential.
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 paragraph 29 above) 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
paragraphs 32-34, 46 and 50-52 above).
        The social welfare authorities, for their part, tried to
persuade the applicants to visit the children in their foster homes,
offering to make the necessary arrangements and reimburse their
travel costs and subsistence expenses.  Furthermore, they organised
a meeting in Gothenburg and, after consultation with two experts,
drew up an access plan which cannot be said to have been unduly
restrictive and seems to have satisfied the exigencies of the
situation.  Although this plan was rejected by the applicants, the
social welfare authorities tried, with partial success, to put it
into effect (see paragraphs 29 and 41 above).
        In the light of the foregoing, the Court, having regard to
the margin of appreciation to be left to the national authorities,
has come to the conclusion that it has not been established that the
social welfare authorities failed to fulfil their obligation to take
measures with a view to the applicants being reunited with Helena
and Thomas.
        Accordingly, the maintenance in force of the prohibition on
removal and the restrictions on access were based on reasons that
were not only "relevant" but also, in the circumstances,
"sufficient" (see paragraph 88 above).
92.     The question whether the interferences with the applicants'
right to respect for family life were "necessary" must therefore be
answered in the affirmative.  Consequently, their complaint under
Article 8 (art. 8) fails on this point.
III.    ALLEGED VIOLATION OF ARTICLE 53 (art. 53) OF THE CONVENTION
93.     The applicants complained that, despite the Court's Olsson I
judgment, the Swedish authorities had continued to prevent their
reunion with Helena and Thomas; the applicants had still not been
allowed to meet the children under circumstances which would have
enabled them to re-establish parent-child relationships.  In their
view, Sweden had continued to act in breach of Article 8 (art. 8)
and had thereby failed to comply with its obligations under
Article 53 (art. 53) of the Convention, which reads as follows:
        "The High Contracting Parties undertake to abide by the
        decision of the Court in any case to which they are
        parties."
        This allegation was disputed by the Government, whereas the
Commission did not express an opinion on the matter.
        By Resolution DH (88)18, adopted on 26 October 1988,
concerning the execution of the Olsson I judgment, the Committee of
Ministers, "having satisfied itself that the Government of Sweden
has paid to the applicants the sums provided for in the judgment",
declared that it had "exercised its functions under Article 54
(art. 54) of the Convention".
94.     The Court further notes that the facts and circumstances
underlying the applicants' complaint under Article 53 (art. 53)
raised a new issue which was not determined by the Olsson I judgment
(p. 29, para. 57) and are essentially the same as those which were
considered above under Article 8 (art. 8), in respect of which no
violation was found (see paragraphs 87-92 above).
        In these circumstances, no separate issue arises under
Article 53 (art. 53).
IV.     ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
        CONVENTION
95.     Mr and Mrs Olsson also complained of several violations of
Article 6 para. 1 (art. 6-1), which provides:
        "In the determination of his civil rights and obligations
        ... everyone is entitled to a ... hearing within a
        reasonable time by [a] ... tribunal ..."
    A.  Judicial review of restrictions on access
96.     The Government, like the Commission, accepted the
applicants' contention that there had been a violation of
Article 6 para. 1 (art. 6-1) on the ground that it was not possible
for them, until the entry into force of the 1990 Act on 1 July 1990,
to have the restrictions on their access to Helena and Thomas
reviewed by a court (see paragraphs 33, 34, 51, 62, 73 and 74
above).
97.     For the reasons set out in the above-mentioned Eriksson
judgment (Series A no. 156, p. 29, paras. 80-81), the Court agrees.
Accordingly, there has been a violation of Article 6 para. 1
(art. 6-1) on this point.
    B.  Length of certain proceedings
98.     The applicants alleged that the duration of several of the
domestic proceedings in their case had, contrary to Article 6
para. 1 (art. 6-1), exceeded a reasonable time.
        The Government contested this allegation, which was rejected
by the Commission.
99.     The reasonableness of the length of proceedings is to be
assessed in the light of the criteria laid down in the Court's case-
law, in particular the complexity of the case, the conduct of the
applicant and that of the relevant authorities.  On the latter
point, what is at stake for the applicant in the litigation has to
be taken into account in certain cases (see, for instance, the X v.
France judgment of 31 March 1992, Series A no. 236, pp. 89-90,
para. 32).
        1.      The proceedings relating to one of the requests made
                by the applicants for termination of the public care
100.    The applicants maintained that the examination of one of
their requests for termination of the public care of Helena, Thomas
and Stefan (see paragraph 10 above) had not been concluded within a
"reasonable time".
101.    The Court considers - and this was not in dispute before
it - that the starting-point for the relevant periods was
16 August 1984, when the applicants submitted their request to the
Social Council. The periods in question ran until 16 February 1987,
when the public care of Stefan was revoked by the Administrative
Court of Appeal, and 18 June 1987, when that of Helena and Thomas
was terminated by the Supreme Administrative Court, thus lasting
approximately two years and six months and two years and ten months,
respectively.
102.    The proceedings concerning Stefan lasted approximately
thirteen months before the Social Council, four and a half months
before the County Administrative Court and twelve months before the
Administrative Court of Appeal; those in respect of Helena and
Thomas took approximately two and a half months before the Social
Council, eleven months before the County Administrative Court,
sixteen and a half months before the Administrative Court of Appeal
and four months before the Supreme Administrative Court.
        The proceedings were of a complex nature, involving
difficult assessments and requiring extensive investigations.
Hearings were held before the County Administrative Court in the
case of Helena and Thomas and before the Administrative Court of
Appeal in the case of all three children.
103.    There are only two instances in which it is questionable
whether the competent authorities proceeded with proper diligence.
        Firstly, it took the Social Council thirteen months to
decide on the request concerning Stefan.  However, the Government
explained that this had been due to certain investigations deemed to
be necessary and the Court accepts this argument.
        Secondly, the Administrative Court of Appeal had initially
scheduled a hearing for 21 August 1986, but postponed it until
4 February 1987.  Whilst indicating that they could not state with
any certainty the reasons for this delay, the Government drew
attention to the fact that, between 17 July and 20 November 1986,
the case-file had not been with the Administrative Court of Appeal,
but with the Supreme Administrative Court, which had had before it
another appeal by the applicants.  However, this does not
sufficiently explain why the hearing was postponed for six months.
In view of the nature of the interests at stake, it was of great
importance, as the Commission also noted, that such matters be dealt
with swiftly.
        Nevertheless, having regard to the complexity of the case,
the delay was not so long as to warrant the conclusion that the
total duration of the proceedings was excessive.
        2.      The proceedings relating to the applicants' request
                under Chapter 21 of the Parental Code
104.    Mr and Mrs Olsson further claimed that the proceedings
concerning their request to have Helena and Thomas returned to them,
in accordance with section 7 of Chapter 21 of the Parental Code (see
paragraph 18 above), had exceeded a reasonable time.
        Both the Government and the Commission disagreed.
        In their main submission the Government disputed the
applicability of Article 6 para. 1 (art. 6-1), on the ground that
the proceedings in issue had been concerned only with the
enforcement of existing rights and not with the determination of the
existence or the content of such rights.
        The Court has come to a different conclusion.  There is no
doubt that the outcome of the proceedings in issue affected, in a
decisive manner, the exercise by the applicants of an essential
aspect of their rights in respect of the custody of the children
(see, amongst many authorities, the Skärby v. Sweden judgment of
28 June 1990, Series A no. 180-B, p. 36, para. 27).  Their
application to the County Administrative Court for the transfer of
the children thus gave rise to a "contestation" (dispute) over one
of their "civil rights" for the purposes of Article 6 para. 1
(art. 6-1).  Consequently, this provision is applicable to the
proceedings in question.
105.    As to whether the proceedings complied with the requirement
of reasonable time, the Court observes that they lasted for a period
of thirteen and a half months and comprised three levels of
jurisdiction.  Like the Commission, it does not find this to be
excessive for the purposes of Article 6 para. 1 (art. 6-1).
        3.      The proceedings relating to the second appointment
                of a guardian ad litem
106.    The applicants further contended that the proceedings
concerning the second appointment of a guardian ad litem (see
paragraph 20 above) had exceeded a "reasonable time".
        These proceedings lasted a little more than a year and
included three levels of jurisdiction.  The Court agrees with the
Commission that they were concluded within a reasonable time.
        4.      Conclusion
107.    There has accordingly been no breach of Article 6 para. 1
(art. 6-1) on the three above-mentioned points.
V.      MISCELLANEOUS ALLEGATIONS OF VIOLATIONS OF ARTICLES 6 PARA.1
        AND 13 (art. 6-1, art. 13)
108.    Before the Commission the applicants submitted that, in the
first set of proceedings challenging the prohibition on removal,
there had been a breach of Article 6 para. 1 (art. 6-1), in that the
Supreme Administrative Court had refused to hold a hearing (see
paragraph 17 above).  They also alleged that, contrary to this
provision, they had not been able to challenge the District Court's
first appointment, on 17 July 1987, of a guardian ad litem for
Helena and Thomas, since they had not been informed of this decision
(see paragraph 19 above).  In addition, they complained that they
did not have an effective remedy within the meaning of Article 13
(art. 13) in respect of the restrictions on access and the decision
of 17 July 1987 to appoint a guardian ad litem.
        These complaints, which in the Commission's opinion were
unfounded or did not need examination, were not mentioned by the
applicants before the Court, which does not consider it necessary to
examine them of its own motion.
VI.     APPLICATION OF ARTICLE 50 (art. 50)
109.    Mr and Mrs Olsson sought just satisfaction under Article 50
(art. 50), according to which:
        "If the Court finds that a decision or a measure taken by a
        legal authority or any other authority of a High Contracting
        Party is completely or partially in conflict with the
        obligations arising from the ... Convention, and if the
        internal law of the said Party allows only partial
        reparation to be made for the consequences of this decision
        or measure, the decision of the Court shall, if necessary,
        afford just satisfaction to the injured party."
    A.  Damage
110.    Under this provision the applicants sought 5,000,000 Swedish
kronor for damage.  In support of their claim they maintained, inter
alia, that, despite the Olsson I judgment, the Swedish authorities
had continued to deal with them in the same way.  The compensation
awarded by the Court in that judgment had had no impact; a
significantly higher sum was therefore called for in the present
case.
        The Government considered the claim to be "out of
proportion".  They submitted that, should the Court uphold their
contentions on the merits, only a symbolic amount should be granted.
111.    The present judgment has found only violations of Article 8
(art. 8), on account of the restrictions on the applicants' access
to Helena and Thomas imposed, for a certain period, without a proper
basis in Swedish law, and of Article 6 para. 1 (art. 6-1), owing to
the absence of a court remedy against the restrictions (see
paragraphs 81-82 and 97 above).  The Court considers that the
applicants must, as a result, have suffered some non-pecuniary
damage which has not been compensated solely by the findings of
violation.  Deciding on an equitable basis, it awards 50,000 Swedish
kronor to the applicants jointly under this head.
    B.  Legal fees and expenses
112.    The applicants claimed reimbursement of fees and expenses,
totalling 1,286,000 Swedish kronor, in respect of the following
items:
(a)     1,269,000 kronor for 625 hours' work by their lawyer in
        respect of the domestic and the Strasbourg proceedings and
        for 80 hours for the preparation of her oral pleadings and
        her appearance before the Court as well as for her journey
        to Strasbourg (in each case at 1,800 kronor per hour);
(b)     expenses relating to journeys by the lawyer to meet a former
        foster daughter of the Larsson family in Northern Sweden
        (7,000 kronor) and to attend a court hearing in Gävle
        (2,000 kronor);
(c)     3,000 kronor in respect of a further journey to see the
        applicants and an appearance before the District Court in
        Alingsås as well as photocopying and telephone calls;
(d)     5,000 kronor to cover work by a translator checking the
        manuscript of the lawyer's oral pleadings before the Court.
        With regard to item (a), the Government submitted that costs
referable to the domestic proceedings did not warrant compensation
under Article 50 (art. 50); such costs could have been paid under
the Swedish legal aid scheme had the applicants applied for legal
aid. Furthermore, in their view, the way in which the lawyer for the
applicants conducted the proceedings before the Commission should be
taken into consideration.  The Government questioned whether the
time which she claimed to have spent on the case was necessary and
considered the hourly rate charged too high.
        Items (b) and (c), the Government pointed out, seemed to be
related, at least partly, to the domestic proceedings.  They were
prepared to pay reasonable compensation for item (d).
113.    As regards item (a), the Court notes that the applicants'
lawyer agreed to act on the basis that she would not ask for fees
under the Swedish legal aid scheme.  Her clients have therefore
incurred liability to pay fees to her.  Legal fees referable to
steps taken, in both the domestic and the Strasbourg proceedings,
with a view to preventing or obtaining redress for the matters found
by the Court to constitute violations of Articles 6 para. 1 and 8
(art. 6-1, art. 8) of the Convention, were necessarily incurred and
should be reimbursed in so far as they were reasonable (see, for
instance, the Olsson I judgment, Series A no. 130, p. 43,
para. 104).
        Bearing in mind that the applicants have succeeded only on
the points mentioned in paragraph 111 above and making an assessment
on an equitable basis, the Court considers that the applicants
should be awarded under this head 50,000 kronor, from which must be
deducted the 6,900 French francs already received from the Council
of Europe in respect of legal costs.
114.    Items (b) and (c) must be rejected as there is no evidence
that they were necessarily incurred.  On the other hand, the Court
is satisfied that item (d) - translation costs - was necessarily
incurred and was reasonable as to quantum.
FOR THESE REASONS, THE COURT
1.      Holds by six votes to three that there has been no violation
        of Article 8 (art. 8) of the Convention in respect of the
        prohibition on removal;
2.      Holds unanimously that there has been a violation of
        Article 8 (art. 8) on account of the restrictions on access
        imposed between 23 June 1987 and 1 July 1990;
3.      Holds by six votes to three that there has been no violation
        of Article 8 (art. 8) on account of the restrictions on
        access imposed after 1 July 1990;
4.      Holds unanimously that there has been a violation of
        Article 6 para. 1 (art. 6-1) in that no court remedy was
        available to challenge the restrictions on access imposed
        between 23 June 1987 and 1 July 1990;
5.      Holds unanimously that there has been no violation of
        Article 6 para. 1 (art. 6-1) as regards any of the other
        points raised by the applicants before the Commission and
        the Court;
6.      Holds by seven votes to two that no separate issue arises
        under Article 53 (art. 53);
7.      Holds unanimously that it is not necessary to examine the
        other complaints, under Articles 6 para. 1 and 13 (art. 6-1,
        art. 13), which the applicants made before the Commission
        but did not reiterate before the Court;
8.      Holds unanimously that Sweden is to pay to the applicants
        jointly, within three months, 50,000 (fifty thousand)
        Swedish kronor for non-pecuniary damage, and, for legal fees
        and expenses, 55,000 (fifty-five thousand) Swedish kronor
        less 6,900 (six thousand nine hundred) French francs to be
        converted into Swedish kronor at the rate applicable on the
        date of delivery of the present judgment;
9.      Dismisses unanimously the remainder of the claim for just
        satisfaction.
        Done in English and in French and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
27 November 1992.
Signed: Rolv RYSSDAL
        President
Signed: Marc-André EISSEN
        Registrar
        In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the partly
dissenting opinion of Mr Pettiti, joined by Mr Matscher and
Mr Russo, is annexed to this judgment.
Initialled: R.R.
Initialled: M.-A.E
         PARTLY DISSENTING OPINION OF JUDGE PETTITI, JOINED BY
                      JUDGES MATSCHER* AND RUSSO
_______________
* Except as regards the penultimate paragraph on page 46.
_______________
                             (Translation)
        I did not vote with the majority of the Chamber for the non-
violation of Article 8 (art. 8) of the European Convention on Human
Rights as regards the prohibition on removal and restrictions on
access (points 1 and 3 of the operative provisions).  I consider, on
the contrary, that there has been a serious violation of that
Article (art. 8) in respect both of the prohibition on removal and
of the restrictions on access after 1 July 1990, on the same lines
as the findings in the Olsson I judgment (see particularly
paragraph 81 which set out the reasons for concluding that Sweden
had failed to comply with Article 8 in that case) (art. 8).
        It appears clear that the social welfare officials did not
take all the steps that they should have done in the light of that
judgment with a view to promoting the exercise of the right of
access and the right to have the children to stay which would have
prepared the way for returning custody of the children to their
parents.
        Where the child has been separated from his parents over a
long period (as was the case here and this was a situation for which
the social welfare authorities bore some responsibility in respect
of the period covered by the Olsson I judgment), flexible and
sensitive measures must be taken.
        In order to put reflection on the Olsson II judgment more
clearly in context, it is helpful to recall the principal reasoning
of the Olsson I judgment (in which a violation was found by twelve
votes to three):
        "82.    There is nothing to suggest that the Swedish
        authorities did not act in good faith in implementing the
        care decision.  However, this does not suffice to render a
        measure 'necessary' in Convention terms ...: an objective
        standard has to be applied in this connection.  Examination
        of the Government's arguments suggests that it was partly
        administrative difficulties that prompted the authorities'
        decisions; yet, in so fundamental an area as respect for
        family life, such considerations cannot be allowed to play
        more than a secondary role.
        83.     In conclusion, in the respects indicated above and
        despite the applicants' unco-operative attitude ..., the
        measures taken in implementation of the care decision were
        not supported by 'sufficient' reasons justifying them as
        proportionate to the legitimate aim pursued.  They were
        therefore, notwithstanding the domestic authorities' margin
        of appreciation, not 'necessary in a domestic society'."
        The Committee of Ministers confined itself to declaring that
the pecuniary awards made under Article 50 (art. 50) of the
Convention had been duly paid by the Government.
        For all the periods considered, the authorities should have
taken steps to ensure: the psychological preparation of the children
and the progressive organisation repeated at least each month of
meetings, at first short ones, if necessary even in the presence of
a psychologist; these meetings could subsequently have been extended
to a day, a weekend, a part of the holidays, under different
conditions to those obtaining for the five series of meetings
referred to in the judgment.  The aim would be to avoid a situation
in which the child, being conditioned by the foster family, adopted
a deliberately obstructive attitude to these visits, which evidently
posed a problem.  It would also have been helpful to make a greater
effort to prepare the parents for the progressive stages, making
allowance for their frustration, for a degree of maladroit
resistance on their part as well as for the difficulties arising
from the need to travel because of the unfortunate choice of the
foster families in terms of the geographical location of their home.
The most important thing was to take account of the parents'
persistent efforts to secure the return of their children, despite
all the obstacles, which confirmed their parental attachment and
their legitimate and consistent claim.  In my view, neither the
social welfare authorities nor the majority of the European Court
sitting as a Chamber gave sufficient weight to the strength and
extent of this attachment.  From 23 June 1987 to 16 June 1989, there
were only five actual meetings (see paragraph 29 of the judgment),
and then no more during the relevant period.
        It is true that since the Olsson I judgment these five
attempts at meetings have taken place; the results were
unsatisfactory but that could have been a temporary situation.
        However, in view of the large number of misunderstandings
which had built up over the years, these attempts had no chance of
succeeding without an adequate psychological preparation of the
parties concerned.  It is the duty of the social welfare
authorities, and this is one of the most elementary principles of
the methods of educative assistance practised in Europe, where this
type of conflict is frequent, to make specific arrangements.
        It is impossible to overcome in a matter of a few hours
years of mutual incomprehension.  Thousands of learned works by
judges, lawyers, doctors, psychiatrists or psychologists, have been
written on this subject.  The technique of using neutral ground for
meetings and progressive contacts is common, under judicial
supervision.  In any event it is always counterproductive for the
parents to have to meet their children on the home ground of the
foster family or in the latter's presence, because that often leads
to the failure of the attempt.
        The social welfare authorities displayed what was almost
contempt both for the national courts and the European Court.  It is
somewhat surprising that neither the courts nor the governmental
authorities managed to force the "imperialism" of the social
services to give ground.
        At no time did the social welfare authorities take the least
account of the love for their children that the parents sought to
express, a love that was demonstrated by the years of struggle in
proceedings to seek to obtain the return of the children and the
respect of their most sacred rights.
        Clearly, the Olsson parents' attitude was not always
helpful, particularly after 1989, and they must therefore bear a
part of the responsibility.  Yet one must not forget their despair
after the repeated failures with which they met even after the
favourable decisions of the European Court and the national courts
(see paragraph 53 et seq. of the present judgment).
        Adopting the tactics employed by their lawyers, which were
perhaps too extreme, they hardened their position, but legally they
had a number of valid reasons for doing so.  In any case, the
authorities were under a duty to exert a positive influence, by
showing understanding and making repeated interventions, instead of
reinforcing the differences.
        In this type of situation it is necessary to seek to
organise more and more meetings, to educate the children and the
parents, to defuse conflicts. It is unfair to give priority to the
obstinacy of the children and the foster families.
        In the same connection, the long delays between each
proceedings or intervention made the situation worse, whereas in
other States and in other jurisdictions, hearings would have been
held at shorter intervals by means of an urgent procedure before a
children's judge.  One is left with the impression that the
authorities were content to allow the intransigence of the parents
to strengthen the position of the social welfare authorities,
despite the fact that the latter had never disguised their
preference for the foster families, as if they sought to accord
greater weight to material comfort than to paternal and maternal
ties.
        Viewed from the outside this attitude towards the parents
may seem somewhat "inhuman".
        It is to be regretted that reference was not made to the
United Nations Convention on the Rights of the Child so as to permit
the intervention of the children assisted by their lawyers, who
could have played a useful role as mediators.
        Whatever the case may be, the general and overall conduct of
the authorities was such that the parents are permanently separated
from their children, and this situation is now irreparable as a
result of the refusal to allow access, a right which is not even
refused to criminal parents in other countries.  The Olsson parents
have been definitively cut off from any family relationship.  It is
difficult to think of a more serious case of a violation of the
fundamental rights protected by Article 8 (art. 8).
        As I voted for the violation of the prohibition on removal
and the restriction on access before and after 1990, I also consider
that the Court should have examined the case under Article 53
(art. 53) and analysed the decision of the Committee of Ministers in
the light of the European Court's judgment in the first Olsson case.
        It is paradoxical that in the year of the implementation of
the United Nations Convention on the Rights of the Child, which
stresses the importance of parent-child relations, there should have
been such a failure in the application of Article 8 (art. 8) of the
European Convention.

 

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