Admissibility decision - Europadomstolen

 

FIRST SECTION

 

DECISION

 

AS TO THE ADMISSIBILITY OF

 

Application no. 22771/93

by C.L., B.L., E.L. and H.L.

against Sweden

The European Court of Human Rights (First Section) sitting on 7 September 1999 as a Chamber composed of

Mr J. Casadevall, President,

Mrs E. Palm,

Mr Gaukur Jörundsson,

Mr R. Türmen,

Mr C. Bîrsan,

Mrs W. Thomassen,

Mr R. Maruste, Judges,

with Mr M. O'Boyle, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 August 1993 by C.L., B.L., E.L. and H.L. against Sweden and registered on 14 October 1993 under file no. 22771/93;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 3 November 1994 and the observations in reply submitted by the applicants on 20 December 1995;

Having regard to the further information submitted by the respondent Government on 10 July, 14 November and 12 December 1995 and by the applicants on 10 December 1995; Having regard to the supplementary observations submitted by the respondent Government on 3 March 1997 and by the applicants on 23 March 1997;

Having deliberated;

Decides as follows:

 

THE FACTS

The applicants are a family consisting of the parents and their two daughters. They are all Swedish citizens and reside in Tyresö. The mother, born in 1944, is a librarian by profession. The father, born in 1945, is a chief physician at a hospital in Stockholm. The third and fourth applicants are their daughters, born in 1979 and 1981, respectively.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. The particular circumstances of the case

The application concerns the public care of the third applicant, E. She was admitted for a psychiatric examination on 22 June 1992 and taken into care on 3 July 1992. She lived with her maternal grandparents as from 10 September 1992. On 31 May 1995 the care was terminated.

According to medical and psychological examinations conducted between 1985 and 1989, E suffers from mental retardation and has contact disturbances of a child-psychotic nature. She has been undergoing child rehabilitation since 1986. At school, she has attended special classes for mentally retarded children.

In the autumn of 1991 and the spring of 1992 E's schoolteacher observed that E repeatedly played with toy animals in a manner which, according to the teacher, indicated that she had been sexually abused. The matter was brought to the attention of the Social Council (socialnämnden) of Tyresö on 9 June 1992. The Council immediately commenced an investigation, which resulted in the preliminary assessment that the matter was extremely serious and that E ought to be placed away from her home during further investigation. Moreover, on 17 June the Council reported the suspicion of sexual abuse of E to the police. With the parents' consent, the Council also arranged that, on 22 June, E was admitted to the child psychiatric department of the St Göran hospital in Stockholm for examination.

However, as the social authorities' prime suspect in regard to the allegations of sexual abuse was E's father, the parents announced, on 3 July 1992, that they refused to further co-operate with the authorities. They were not opposed to the examination of E but preferred that contacts were taken directly between them and the hospital. As a consequence, the president of the Social Council decided the same day, pursuant to Section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52 - hereinafter "the 1990 Act"), to take E into care immediately on a provisional basis. The decision was referred to the County Administrative Court (länsrätten) of the County of Stockholm for approval.

E remained at the hospital. By the Social Council's decision of 6 July 1992, access to her was restricted pursuant to Section 14 of the 1990 Act. The decision was taken at the hospital's request in order to protect E from negative influences and possible sexual abuse and to facilitate the ongoing examination. The restrictions implied that E could not leave the hospital and could only receive visits with special permission from the hospital and under surveillance by its staff. Furthermore, all telephone calls to E were to go through the staff. The restrictions applied to her parents as well as to others. The parents appealed against the decision to the County Administrative Court.

On 16 July 1992 the County Administrative Court examined the Social Council's decision to take E into provisional care. The court had access to a statement of 9 July from an expert in child psychiatry at the St Göran hospital. He was of the opinion that E should be examined at a child psychiatric department and that access to her would have to be restricted in the manner prescribed by the Council. Having regard to the evidence available thus far, the court found it likely that E would eventually have to be admitted for compulsory care under the 1990 Act. The later proceedings concerning the compulsory care order could not be awaited, however, as there was a danger to E's health and development and as the continuing examination of her could be obstructed. The court therefore confirmed the Council's decision.

The parents appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm, which upheld the County Administrative Court's decision on 24 July 1992. They did not apply for leave to appeal to the Supreme Administrative Court (Regeringsrätten).

On 24 July 1992 the County Administrative Court decided on the question of access to E. It found that the Social Council had had reasons to restrict E's contacts with her parents and other relatives in accordance with the request from the St Göran hospital. The parent's appeal was, thus, rejected. They made no appeal to the Administrative Court of Appeal. In August 1992 the Council issued further decisions on the question of access, including a short-term prohibition on the relatives' contacts with E. No appeals were made against these decisions.

In the meantime, the examination of E had continued. At a forensic medical examination on 6 July 1992, signs of skin irritation, clear and marked vein lines, three healed ruptures of the rectal orifice and pockets in the outer sexual organ were noted. According to the examination report, the changes in the rectal orifice could be an indication that this organ had been forcibly stretched on repeated occasions. However, it was not possible to determine whether the changes had been caused by constipation or by the insertion of an object from the rear. Also the change in the outer sexual organ could represent a healed rupture, although the possibility that it was an unusual anatomical variation could not be excluded. A further forensic medical examination of E, made on 12 August, showed that the condition of the rectal orifice was largely unchanged, although one of the ruptures was now almost completely healed. The observations made during the second examination supported the conclusions drawn in the first examination report.

In a report submitted to the Social Council on 17 August 1992, professor P.R., the head of the child psychiatric department at the St Göran hospital, stated that E appeared to be suffering from Rett's syndrome which, apparently, only affects girls and manifests itself in serious mental retardation, progressive disablement and constipation. Those who suffer from Rett's syndrome often develop normally until they are 6-18 months old; thereafter, they rapidly lose many of the functions already developed, in particular fine motor abilities and speech. Later, contact and communication capabilities often improve while motor abilities deteriorate. Professor P.R. stated that information supporting the suspicions of sexual abuse had been revealed in the course of the investigation at the hospital. On the basis of the information conveyed by E to those involved in the examinations, he could not exclude, but rather found it plausible, that she had been subjected to one or more acts of sexual abuse.

On 2 September 1992, the St Göran hospital submitted a report to the public prosecutor and the police. The report - which had been prepared by professor P.R., psychologist K.L. and two of the other doctors and psychologists who had examined E - stated, inter alia, that E had hardly developed intellectually in the preceding four years. Her mental and physical abilities corresponded - depending on what skills were tested - to the level of a child between the age of 3 years and 6 months and the age of 5 years and 10 months. Her strong point was her verbal skills. Despite her mental disability, she was able to think and express herself in abstract terms and to use language in an adequate manner. The report also stated that in the course of the psychological examination E had conveyed, by words and gestures, that she had been subjected to sexual abuse. In describing to the psychologist what had happened, she had consistently talked about a "girl-bear" and a "father-bear". On a direct question she had confirmed that these expressions referred to herself and her father. Moreover, the staff at the hospital ward had noted that her behaviour in many situations had sexual connotations. The report concluded that the psychiatric examination indicated that E had been subjected to sexual abuse, that her account of sexual abuse by her father could not be rejected with reference to her disablement, late mental development or contact problems, and that the observations made during the forensic medical examination did not contradict the possibility of her account being a reasonable description of something she had experienced.

In addition to the examination at the St Göran hospital, the police conducted an investigation of the alleged sexual abuse. The investigation included nine police interviews with E during the period of 24 June - 5 August 1992.

On 28 August 1992 the Social Council applied to the County Administrative Court for a care order committing E to care on a permanent basis in accordance with Sections 1 and 2 of the 1990 Act. The Council maintained, which was contested by E's parents, that E had been sexually abused. According to the Council's care plan, E was to be placed outside the home environment and would attend a special school. "Appropriate treatment" was to be employed in order for her to process her experiences. She would have regular contacts with her mother and relatives and supervised contacts with her father.

The court held a hearing on 3 September 1992 during which it heard E's parents and their counsel, E's counsel and a lawyer representing the Social Council. It also heard evidence from psychologist K.L. and had regard to the above-mentioned reports from the St Göran hospital and the forensic medical reports. Apparently, however, the police interviews were not available.

On 10 September 1992 E left the St Göran hospital and was placed with her maternal grandparents.

By a judgement of 11 September 1992 the County Administrative Court ordered that E be taken into care. It found the evidence in the case - in particular the report of 2 September 1992 - to indicate that E was likely to have been improperly exploited. Consequently, there was a clear risk that her health and development would be impaired. Finding that the necessary care could not be provided on a voluntary basis, the court concluded that it had to be given pursuant to the provisions of the 1990 Act.

On 17 September 1992 the public prosecutor notified E's father that he was suspected of aggravated sexual abuse of a minor (grovt sexuellt utnyttjande av underårig).

The parents appealed against the County Administrative Court's judgement to the Administrative Court of Appeal. They stated, inter alia, that E's illness, one of the symptoms of which is constipation, sufficiently explained the ruptures of the rectal orifice and many other circumstances which had been interpreted as indicating that E had been subjected to abuse. Further, the psychologist and the policeman who had interviewed E had consistently asked her leading questions. Thus, these interviews did not support the suspicions of sexual abuse. The parents invoked several written statements by friends and colleagues to show that the family was completely normal and that no abuse could have been committed against E by her father.

Transcripts of the nine police interviews with E were submitted to the appellate court, and subsequently also the video recordings of these sessions. The parents also submitted a police report concerning an interview with Dr H.H., chief medical officer at the skin department of the Karolinska hospital in Stockholm. He stated, inter alia, that the area around the sexual organ and the rectal orifice heals quickly and easily. Thus, to be able to assess the results of a recent act of penetration, the area concerned would have to be examined within one or two weeks.

On 10 November 1992 the public prosecutor decided not to initiate proceedings against E's father since the available evidence was insufficient to prove the allegations of sexual abuse (brott kan ej styrkas). The Social Council asked for a review of the decision. On 19 February 1993 the Prosecutor-General upheld it.

The Administrative Court of Appeal decided to obtain an opinion from the National Board of Health and Welfare (Socialstyrelsen). The court expressed that the opinion should in particular focus on the manner in which the investigation had been carried out at the St Göran hospital and the conclusions drawn from that investigation. Dr E.B., the chief medical officer at the child psychiatric department of the regional hospital in Gävle, was assigned to do the assessment.

In his opinion of 17 February 1993 Dr E.B. stated, inter alia, that the investigation was very detailed and covered a wide range of aspects and, as a whole, met high standards. He further submitted that the hospital had used appropriate methods in examining E. Moreover, he found that the investigation convincingly indicated that E had had experiences of a sexual nature which were not compatible with her age. Dr E.B. concluded that the investigation was of such a quality that there was no reason to seriously question the conclusions drawn by the hospital.

With reference to Dr E.B.'s opinion, the National Board of Health and Welfare informed the Administrative Court of Appeal on 22 February 1993 that it found no reason to question either the methods used by the St Göran hospital or its conclusions.

E's parents submitted to the appellate court a statement of 3 March 1993 by Dr G.K., head of the section for sexual diseases at the skin department of the Karolinska hospital. Having studied the forensic medical reports concerning E, he stated that it was not possible to determine whether the ruptures of the rectal orifice had occurred before or after E had been admitted to the St Göran hospital and that superficial injuries which could appear as a result of sexual abuse normally heal rapidly and must be examined within one or two weeks. Further, although scars and cracks were difficult to assess, what had been observed at the forensic examination could well be the results of constipation. Dr G.K. concluded that the changes of the rectum had probably been caused by constipation and that there was nothing else in the investigation that supported the suspicion of anal copulation.

In addition, the parents submitted an opinion of 21 March 1993 by psychologist A.C. Having studied several documents of the case, including transcripts of the various interviews with E by psychologist K.L. and the police, she criticised the methods used and the conclusions drawn. In particular, she found that the interviewers had had preconceived ideas of the alleged abuse which they sought to have confirmed by E by directing her attention to certain subjects and rejecting some of the answers she had given. Further, she called into question whether the investigators at the St Göran hospital had considered alternative interpretations of the available material. She presented such alternative interpretations and concluded that it was very difficult to find support for the conclusion that E had been subjected to sexual abuse. Rather, it was possible to draw the conclusion that E had not experienced such abuse.

The Administrative Court of Appeal held a hearing on 12 and 13 May 1993. Like the County Administrative Court, it heard E's parents and their counsel, E's counsel and the lawyer representing the Social Council. The appellate court also heard evidence from professor P.R., psychologist K.L., E's teacher and - at the request of E's parents - psychologist A.C. and chief medical officer A.A. from the National Board of Forensic Medicine (Rättsmedicinalverket).

Professor P.R. gave the following evidence, as it appears in the Administrative Court of Appeal's judgement of 1 June 1993:

(Translation)

"The examination of [E] at the St Göran hospital was unprejudiced. A report [like the hospital's report of 2 September 1992] is supposed to provide an overall assessment and to present final conclusions. However, such a report should not contain details of various hypotheses that have been employed in the course of the examination. He was responsible for giving the overall assessment in the report. He met [E] for the first time on 24 July 1992. While she was staying at the hospital, he met and talked with her on 20-30 occasions. Thereafter, he met her when she was visiting the hospital. He has also met [E] on 3 and 12 May 1993 at her maternal grandparents' place. The visit on 3 May was agreed in advance and was prompted by the request of the Social Council that he should examine [E] prior to the hearing of the Administrative Court of Appeal and by the request of [E's] parents in connection with an insurance company certificate. [E's] mother and maternal grandparents were present at this visit. The visit on 12 May was motivated by his wish to see [E] when her parents were not there. On this occasion [E's] maternal grandparents were present. [The hospital's report] states that [E] 'recounts' things. [E] is able to recount things spontaneously. She also answers questions. When she was staying at the hospital, [E] conveyed to him that she had been subjected to sexual abuse by her father. When he met her on 12 May she again conveyed that message. The forensic medical examinations [...] do not exclude the possibility that [E] has been subjected to sexual abuse. He would formulate [the hospital's report] in the same way today as he did in September 1992. He has not seen the video tape recordings of the police interviews with [E]. He has studied the transcripts of the interviews, however. He cannot explain why, in the police interviews, [E] did not convey the same message as she had conveyed to him."

The testimony of psychologist K.L. is reproduced in the following manner in the judgement:

"[...] She is trained to test hypotheses throughout the investigation process. This is an obvious feature of the investigation, and discussions with other participants occur throughout the process. [E's] language is, in certain respects, stereotype. It is not easy to say whether [E] has an abstract way of thinking, but when she is affected by something, she uses abstract concepts such as 'the serious thing'. When [the hospital's report] states that [E] 'recounts', it does not refer to a cohesive account. Rather, [E] conveys what she has experienced through her way of responding and her body language. [Psychologist K.L.'s] contacts with [E] indicate that [E] has experienced sexual abuse. [E] has spoken in a serious manner and with feeling and has raised matters that she could not have understood if she had not experienced them. [Psychologist K.L.'s] investigation was completed when the police interviews, in which she was involved, commenced. It is hardly surprising that [E] does not communicate her experiences when placed in this new situation. As reasons for this one may mention that [the interviews took place] in a different room with a video camera and that [E] is sensitive to change. Following [E's] discharge from the hospital, she has met [E] on one occasion when [E] visited the hospital. [E] then asked her 'Are we going to talk about the serious thing?'"

In its judgement the appellate court noted that, at the hearing, psychologist A.C. had referred to her written opinion of 21 March 1993 in all essential respects.

The court further recalled that the requirements of evidence which apply in an ordinary court of law in a criminal case cannot be maintained in a case concerning child care, in view of the 1990 Act's character as protective legislation for children and young people.

The court then considered that the examination of E at the St Göran hospital had been unprejudiced. The conclusion made in the hospital's report of 2 September 1992 - that it could be reasonably assumed that E had been subjected to sexual abuse - had been supported in a convincing manner by the evidence given at the hearing by psychologist K.L. and, in particular, professor P.R. The court thus considered that these two witnesses had shown that, notwithstanding her handicap and linguistic abilities, E had conveyed the message that her father had subjected her to sexual abuse. The written statements of the National Board of Health and Welfare and Dr E.B. indicated that the hospital's conclusion was correct. The court recalled that E had not indicated during the police interviews that she had been subjected to sexual abuse, but considered that psychologist K.L. had given plausible explanations for this. Having had regard to psychologist A.C.'s alternative interpretations of the material she had studied - indicating the possibility that no such abuse had occurred - the court nevertheless found that her statements did not give reason to draw a different conclusion than that reached by the hospital, especially since she appeared to assume that the persons examining E had not considered alternative interpretations of the available material. Finally, the court found that the forensic medical examinations neither supported nor contradicted the conclusion that E had been subjected to sexual abuse.

The court concluded that E had probably been subjected to improper exploitation. Hence, there was a clear risk of impairment to her health and development. As E's parents

had not agreed that she should be placed under care, the requirements for care under the 1990 Act were met. The appeal was, accordingly, rejected.

E's parents appealed to the Supreme Administrative Court which, however, on 16 July 1993 refused to grant leave to appeal.

As indicated above, E stayed with her maternal grandparents as from 10 September 1992 when she left the St Göran hospital. She had regular contacts with her mother and other relatives and supervised contacts with her father. On 14 March 1994 the County Administrative Court decided that E's father could meet her without the grandparents provided that the meetings took place outside the family's home and that both parents were present. Subsequently, E's parents applied for further access to E. Following the Social Council's rejection of their request on 14 June 1994, they appealed to the County Administrative Court.

In its judgement of 3 August 1994 the court, inter alia, made the following remarks:

(Swedish)

"Såväl länsrätten som Kammarrätten i Stockholm fann dock i domar den 11 september 1992 respektive den 1 juni 1993 att [E] sannolikt varit utsatt för otillbörligt utnyttjande av fadern.

[...]

Enligt länsrättens mening har socialnämnden haft fog för sitt beslut att föreskriva begränsningar i umgänget mellan [E] och fader för att skydda henne från att på nytt utnyttjas otillbörligt av honom. Umgänget bör dock inte inskränkas mer än nödvändigt för att ändamålet med vården skall vara uppfyllt."

(Translation)

"[...] The County Administrative Court as well as the Administrative Court of Appeal concluded in judgements of 11 September 1992 and 1 June 1993, respectively, that [E] had probably been subjected to improper exploitation by her father.

[...]

In the opinion of the County Administrative Court, the Social Council has had good reasons for its decision to restrict access between [E] and her father in order to protect her from being improperly exploited by him again. However, access should not be restricted more than is necessary to accomplish the purpose of the care."

Partly accepting the parents' request, the court then decided that E's father should be allowed to meet E in the family's home in order to re-establish an emotional relationship between E and her father with a view to reunite them. The meetings were to take place every other Sunday during daytime in the presence of E's mother.

In the meantime E's parents had requested that the public care be terminated. On 15 February 1994 the Social Council rejected the request, again referring to the report of the St Göran hospital which indicated that it was reasonable to assume that E had been sexually abused.

E's parents appealed to the County Administrative Court. They referred to studies made after the Administrative Court of Appeal's judgement of 1 June 1993 by C.G., a professor in child psychiatry at the child neuro-psychiatric clinic of the Östra hospital in Gothenburg, and B.H., professor emeritus in paediatrics at the same hospital. These studies indicated that, due to the fact that E was suffering from Rett's syndrome, very little - if any - importance could be attached to her statements. Thus, it could no longer be considered likely that she had been sexually abused.

On 8 June 1994 the County Administrative Court decided to obtain expert opinions from professors B.H. and C.G. in order to clarify the effects of Rett's syndrome. These opinions were submitted on 14 June and 22 July 1994 respectively.

On 22 June 1994 the Court furthermore decided to obtain an opinion from the National Board of Health and Welfare concerning the same issue. Professor A.K. at the psychiatric department of the Akademiska hospital in Uppsala answered on behalf of the board on 27 October and 7 November 1994. She concluded that the examination of E at the St Göran hospital had been careful and accurate. However, on account of information about E's handicap that had emerged after the hospital's report, there were reasons to call into question those conclusions of the hospital that had been based on E's statements.

On 25 November 1994 the County Administrative Court held a hearing during which E's parents as well as the representative of the Social Council and E's counsel were heard. The court also heard evidence from professor P.R. and E's maternal grandmother.

By a judgement of 15 December 1994 the court decided - by two votes against two with the casting vote of the president - to reject the appeal. It stated inter alia as follows:

(Translation)

"In the report of 2 September 1992 [from the St Göran hospital] it is stated, inter alia, that [E's] account of sexual abuse by her father cannot be rejected with reference to her disablement, late mental development or contact problems and that, on the basis of the child psychiatric investigation as a whole, it can be reasonably assumed that [E] has been subjected to sexual abuse.

The National Board of Health and Welfare, through [professor A.K.], has found the examination made at the St Göran hospital to be detailed and adequate. The conclusions drawn from examinations and investigations are carefully made. [E's] disablement and linguistic difficulties have been taken into consideration.

The assessment of reasonableness made in [the hospital's report] has been further strengthened by the statements made by [professor P.R.] at the oral hearing before [the court]. In the opinion of [the court], [professor P.R.] has

shown that, notwithstanding her disablement and linguistic difficulties, [E] has been able to convey to the investigators at the St Göran hospital that she probably has been subjected to sexual abuse by her father.

The views expressed in the respective opinions by [professors B.H and C.G.] neither confirms nor contradicts the probability that [E] has been subjected to improper exploitation, having regard to what [professor P.R.] has now stated. Thus, in [the court's] view, these opinions do not give reason to make a different assessment of reasonableness [than that referred to above].

[The court] finds it established that, during her time with [her maternal grandparents], [E] has developed positively in comparison with her condition when [she] was admitted to the St Göran hospital in the summer of 1992. [...] Part of [E's] reality still relates to 'the serious thing' and the serious thing refers to her father. Thus, there is an apparent risk to [E's] future health and development if the continuing positive trend in her development is disrupted through a reunification with her father. A return to her parents' home today risks completely destroying the positive development [E] has made recently. In view of the above, the court finds that the care under the 1990 Act shall not terminate. The appeal shall accordingly be rejected."

E's parents appealed to the Administrative Court of Appeal and submitted further evidence in support of their view, inter alia a statement of 8 May 1995 by Dr E.B. who submitted that - in view of the information that had emerged after his opinion of 17 February 1993, in particular the opinions of professors C.G., B.H. and A.K. - he now found that the examination made at the St Göran hospital was too unreliable to serve as the basis for future care decisions.

The appellate court held a hearing on 12 and 13 May 1995. Evidence was given by E's schoolteacher and her maternal grandmother, by professor P.R. and Dr E.B. and - at the request of E's parents - by professors C.G. and A.K. Judgement was pronounced on 31 May 1995. The court concluded as follows:

(Translation)

"It is undisputed that [E] suffers from Rett's syndrome. It has been thoroughly explained in the present case what characteristics a child suffering from this syndrome has in regard to, inter alia, word and symbol comprehension. In the light of what has come to hand in the case, in particular the evidence given by [professors C.G. and A.K. and Dr E.B.] before the Administrative Court of Appeal, the court does not consider it particularly likely that [E] connects 'the serious thing' with sexual abuse, regardless of whether or not she has been subjected to such abuse.

Neither the Social Council nor [E's counsel] has alleged that there is now a plausible risk that [E] will be subjected to improper exploitation. However, both the Council and [E's counsel] have alleged that there is still a risk that E's health and development will be impaired if the care is terminated. Partly differing opinions have been submitted in the case as regards E's development since she was taken into care three years ago. However, today nothing unequivocally suggests that her development would be disrupted if she returned to her parents.

[...]

The Administrative Court of Appeal concludes that the case does not disclose such circumstances that could justify that the care of [E] pursuant to the 1990 Act should continue. The care pursuant to the 1990 Act shall accordingly be terminated."

The Social Council did not appeal against the appellate court's judgement. E now lives with her parents.

B. Relevant domestic law and practice

Normally, measures taken by the social authorities in regard to children shall be based on an agreement with the young person concerned and his or her custodian. Such measures are governed by the provisions of the Social Services Act (Socialtjänstlagen, 1980:620).

However, if the custodian or the young person - if he or she is above fifteen years of age - does not consent to the necessary care, compulsory public care may be ordered under the 1990 Act (Section 1 § 2). Care is to be provided, inter alia, if there is a clear risk of impairment of the health or development of a person under eighteen years of age due to ill-treatment, improper exploitation, lack of care or any other condition in the home (Section 2).

The Social Council may decide to take a child into care immediately on a provisional basis if later court proceedings concerning compulsory care cannot be awaited on account of the risk to the child's health or development or of the risk that the continuing examination will be obstructed (Section 6). Such a decision shall be submitted to the County Administrative Court for approval (Section 7).

An order committing a child to care on a permanent basis is issued by the County Administrative Court on application by the Social Council. The application shall include a description of the circumstances concerning the child, measures previously taken and the care that the Social Council intends to arrange (Section 4).

Once public care has been ordered, it is executed by the Social Council, which decides on the details of the care. In particular, the Council shall decide on how the care should be arranged and where the child should live (Section 11). The Council shall ensure that the child's need of contact with parents and other custodians is met to the utmost possible extent. The Council may decide on how this access is to be arranged (Section 14).

When the public care is no longer necessary, the Social Council shall order the termination of the care (Section 21).

Decisions taken by the Social Council in regard to, inter alia, the continuation of the care and the parents' access may be appealed against to the County Administrative Court (Section 41). The court's decisions and judgements may be appealed against to the Administrative Court of Appeal and the Supreme Administrative Court (Section 33 of the Administrative Procedure Act (Förvaltningsprocesslagen, 1971:291)).

 

COMPLAINTS

1. The first and second applicants complain on behalf of E, the third applicant, that her committal to the child psychiatric department at the St Göran hospital from 22 June to 10 September 1992 constituted a deprivation of liberty contrary to Article 5 § 1 of the Convention. Under the same provision, they also complain that the restrictions on E's access to and contact with her parents and relatives during that period infringed her right to liberty.

2. Invoking Article 6 § 2 of the Convention, the second applicant - E's father - complains that he was not presumed innocent by the social authorities and the administrative courts, although the public prosecutor had dropped all charges against him. In particular, he refers to the County Administrative Court's judgement of 3 August 1994.

3. Finally, all the applicants complain, under Article 8 of the Convention, that their right to respect for their family life was violated when E was taken into public care.

 

PROCEDURE

The application was introduced on 8 August 1993 and registered on 14 October 1993.

On 5 July 1994, the Commission (Second Chamber) decided, in accordance with Rule 48 § 2 (b) of its Rules of Procedure, to communicate the complaint under Article 8 of the Convention to the respondent Government.

The Government's written observations were submitted on 3 November 1994, after an extension of the time-limit fixed for that purpose. The applicants replied on 20 December 1994.

On 7 December 1994 the Commission decided not to grant the applicants legal aid.

Further information was submitted by the Government on 10 July, 14 November and 12 December 1995 and by the applicants on 10 December 1995.

On 27 November 1996 the Commission decided to communicate the complaint under Article 6 § 2 of the Convention to the Government.

The Government's written observations were submitted on 3 March 1997, after an extension of the time limit fixed for that purpose. The applicants replied on 23 March 1997.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

 

THE LAW

1. The first and second applicants complain on behalf of E, the third applicant, that her committal to the child psychiatric department at the St Göran hospital from 22 June to 10 September 1992 constituted a deprivation of liberty contrary to Article 5 § 1 of the Convention. Under the same provision, they also complain that the restrictions on E's access to and contact with her parents and relatives during that period infringed her right to liberty.

However, the Court is not required to decide whether or not the facts pertaining to this part of the application disclose any appearance of a violation of the provision invoked, as Article 35 § 1 of the Convention provides that "[t]he Court may only deal with the matter after all domestic remedies have been exhausted [...] and within a period of six months from the date on which the final decision was taken".

In the present case, the Court recalls that E's parents initially consented to E's examination at the St Göran hospital. Further, the Social Council's decision of 3 July 1992 to take E into public care on a provisional basis was appealed against to the County Administrative Court and the Administrative Court of Appeal - the latter court taking its decision on 24 July 1992 - but not to the Supreme Administrative Court. Consequently, the applicants did not exhaust domestic remedies in this respect. As regards the question of access, only one Council decision was appealed against to the County Administrative Court which court examined the appeal on 24 July 1992. No further appeals were made and the applicants thus failed to exhaust domestic remedies in this respect as well.

It is further recalled that E remained at the St Göran hospital until 10 September 1992 when she was placed with her maternal grandparents. The present application was submitted to the Commission on 8 August 1993, that is, more than six months later. The present complaint has thus been introduced out of time.

It follows that this part of the application must be rejected under Article 35 § 4 of the Convention.

2. The second applicant - E's father - complains that he was not presumed innocent by the social authorities and the administrative courts. In particular, he refers to the County Administrative Court's judgement of 3 August 1994. He invokes Article 6 § 2 of the Convention, which reads as follows:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

The respondent Government submit that Article 6 § 2 of the Convention is not applicable to the present complaint, as E's father was not and had not been charged with any criminal offence. The criminal investigation had been discontinued by the Prosecutor-General's final decision of 19 February 1993. No future court decision was likely to be influenced by the remark made by the County Administrative Court on 3 August 1994. The Government further state that the remark was not made in the context of proceedings aiming at establishing the criminal liability of E's father, the County Administrative Court having no jurisdiction in criminal cases. Instead, the remark was used as a kind of circumstantial evidence in determining the question of access under the 1990 Act. Moreover, the court's judgement, although it had been made public, did not have a wide distribution.

 

The second applicant submits that the social authorities throughout the proceedings considered him as guilty of a criminal offence. There was an apparent risk of a new police investigation and, possibly, a trial against him. Furthermore, many people had access to the County Administrative Court's judgement and, as a consequence, the applicants' relations with certain relatives were damaged.

The Court considers, in the light of the parties' submissions, that this complaint raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits. The Commission concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3. Finally, all the applicants complain that their right to respect for their family life was violated when E was taken into public care. They invoke Article 8 of the Convention, which provides the following:

"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 and morals, or for the protection of the rights and freedoms of others."

The Government admit that there has been an interference with the applicants' rights under Article 8 of the Convention as a result of the care decision. As to the justification of the interference, in particular whether it was necessary, the Government submit the following. Following the County Administrative Court's judgement of 11 September 1992, the public prosecutor decided not to initiate criminal proceedings against E's father due to lack of evidence. In its judgement of 1 June 1993, the Administrative Court of Appeal made an evaluation that differed from that of the public prosecutor. However, the administrative courts do not determine a question of criminal liability but examine whether the prerequisites for public care under the 1990 Act are at hand. In view of that Act's aim of protecting children from ill-treatment, the level of evidence required in a child care case is slightly lower than in a criminal case. Furthermore, in the case at hand, the Administrative Court of Appeal had the advantage over the public prosecutor in that it had more evidence at its disposal and was able to assess the circumstances of the case in the light of oral submissions made by the parties and expert witnesses at the court's hearing. The appellate court's examination was full and thorough; it is not reasonable to re-examine the conclusions reached without access to the same written and oral evidence. The Government assert that, having regard to the thorough investigation on which the care decision rested and the margin of appreciation afforded to the Contracting States in cases of this character, the decision must be considered to have been necessary under Article 8. Consequently, in the Government's opinion, the present complaint is manifestly ill-founded.

The applicants state that the original psychiatric examination of E at the St Göran hospital was deficient and unreliable. In particular, she should have been examined by a specialist on Rett's syndrome. Further, when the public prosecutor decided not to initiate

criminal proceedings against her father, the public care should have been discontinued immediately as the only reason for the care was the alleged crime. The parents have always taken care of and educated their children having their best interests in mind. Thus, the decision to take E into public care was not necessary. The applicants further claim that the 1990 Act is drafted in a vague manner and that the results of its application are unforeseeable.

The Court considers, in the light of the parties' submissions, that this complaint raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits. The Commission concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

 

DECLARES ADMISSIBLE

, without prejudging the merits, the applicants' complaints submitted under Article 6 § 2 and Article 8 of the Convention;

 

DECLARES INADMISSIBLE

the remainder of the application.

 

Michael O'Boyle Josep Casadevall
Registrar President

 

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