EUROPEAN COMMISSION OF HUMAN RIGHTS

Application 11373/85

CONCURRING OPINION OF MRS G. H. THUNE

While sharing the opinion of the Commission I would like to add the following:
The unfortunate development in this case is in my view a result of the Swedish legislation. I would in particular question the decision to lift the care order without considerations of the possible effects on Lisa of a removal
from the foster home. The lifting can be said to have been based solely on an assessment of the home situation of Cecilia Eriksson, to which objections no longer could be upheld.

The prohibition on removal must be seen as an attempt from the Social authorities as well as the courts to remedy this. A child who has been in care for more than 5 years cannot automatically be brought back to the natural mother without careful consideration of the possible effects of a removal as well as a specific plan if there is to be reunification. This must in my view have been clear to the Social authorities when they decided to lift the care order. Accordingly, the lifting in itself did not result in any immediate change as to the actual care of Lisa due to the concomitant prohibition on removal. For the parties involved, however, the situation was not unchanged. It obviously implied new expectations and move anxiety as to Lisa's future care and thus increased the difficulties they already were faced with.

A situation where the authorities with one hand open the door for a return of the child and then with the other immediately close it, cannot but increase the uncertainty and conflict between the mother and the foster parents. Such a floating situation, where the possibility of lifting the prohibition on removal depends on the extent of the contact between the child and the mother can only encourage a constant competition between her and the foster parents as to actual access. The foster parents wanting to keep the child would be expected to avoid access. No-one can foresee the outcome and no-one can tell the child what is actually going to happen.

A degree of uncertainty is unavoidable where a child is taken into care. But the way in which the care order was lifted as well as the subsequent floating situation over a number of years, which the authorities should have foreseen imply in my view disrespect for the interests of Lisa. Her interests can never be served through long-term uncertainty. One must expect that when the responsible national authorities take decisions, these are based on thorough assessment of all aspects that deserve consideration. And that, once taken, such decisions are then implemented. The Swedish system, as applied in this case, is in my view not satisfactory in this respect and has added an extra burden on Lisa's shoulders which I consider to be in violation of her right under the Convention.

Accordingly, it would be impossible to conclude that the interference with the mother's right to respect for her family life was necessary in the interest of the child.

Finally, I find it very surprising that under the Swedish system a social council can in practice disregard and even obstruct the judgment of the Supreme Administrative Court without resulting sanction.

Eriksson v. Sweden

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