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You are here: BAILII >> Databases >> European Court of Human Rights >> RIEME v. SWEDEN - 12366/86 [1992] ECHR 46 (22 April 1992) URL: http://www.bailii.org/eu/cases/ECHR/1992/46.html Cite as: [1992] ECHR 46, 16 EHRR 155, (1993) 16 EHRR 155

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In the case of Rieme v. Sweden*,

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 Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr B. Walsh,

Mr A. Spielmann,

Mr N. Valticos,

Mrs E. Palm,

Mr I. Foighel,

Mr A.N. Loizou,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,

Deputy Registrar,

Having deliberated in private on 28 November 1991 and

28 March 1992,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 60/1990/251/322. 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 by the European Commission

of Human Rights ("the Commission") and by the Government of the

Kingdom of Sweden ("the Government") on 14 and 17 December 1990

respectively, within the three-month period laid down by

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the

Convention. It originated in an application (no. 12366/86) against

Sweden lodged with the Commission under Article 25

(art. 25) by Mr Antero Rieme, a Finnish citizen, on 28 July 1986.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Sweden recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46).

The object of the Government's application and of the request 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).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30). The Finnish Government,

having been informed by the Registrar of its right to intervene in

the proceedings (Article 48, sub-paragraph (b) of the Convention

and Rule 33 para. 3(b)) (art. 48-b), did not indicate any intention

of so doing.

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 21 February 1991

the President drew by lot, in the presence of the Registrar, the

names of the seven other members, namely, Mr Thór Vilhjálmsson,

Mr F. Gölcüklü, Mr B. Walsh, Mr A. Spielmann, Mr N. Valticos,

Mr I. Foighel and Mr A.N. Loizou (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 lawyer

for the applicant on the organisation of the procedure (Rules 37

para. 1 and 38). Thereafter, in accordance with the orders made in

consequence, the Registrar received the applicant's memorial on 24

April and the Government's memorial on 13 June 1991.

In a letter of 9 July the Secretary to the Commission informed

the Registrar that the Delegate would submit her observations at

the hearing.

5. On 15 November 1991 the Commission filed a number of documents

which the Registrar had sought from it on the President's

instructions.

On 25 September and 22 November 1991 the registry received,

from the applicant, further details on his Article 50 (art. 50)

claim, which the Court accepted (Rule 50), and documents from both

the applicant and the Government, as requested by the President.

6. As further directed by the President, the hearing took place

in public in the Human Rights Building, Strasbourg, on

25 November 1991. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr H. Corell,

Ambassador, Under-Secretary for

Legal and Consular Affairs,

Ministry for Foreign Affairs, Agent,

Ms I. Stenkula, Legal Adviser,

Ministry of Health and Social Affairs,

Ms E. Jagander, Legal Adviser,

Ministry for Foreign Affairs, Advisers;

(b) for the Commission

Mrs G.H. Thune, Delegate;

(c) for the applicant

Mr L. Hane, advokat, Counsel.

The Court heard addresses by Mr Corell for the Government, by

Mrs Thune for the Commission and by Mr Hane for the applicant, as

well as their replies to its questions.

AS TO THE FACTS

I. Particular circumstances of the case

A. Background

7. Mr Antero Rieme, a Finnish citizen born in 1940, resides at

Tumba, Sweden, and is a metal worker by profession. He has a

daughter, Susanne, together with Mrs J., with whom he cohabited

from January 1976 until March 1977. The latter had legal custody

of Susanne from the time of her birth on 28 October 1976. In 1980

the applicant met Mrs Anita Mäkinen. They have been living

together since that year and have been married since early 1983;

she has taken the name of Anita Rieme.

8. On 26 September 1977, when Susanne was eleven months old, the

Southern Social District Council (södra sociala distriktsnämnden)

of Södertälje ("the Social Council") decided that she should be

taken into public care pursuant to sections 25(a) and 29 of the

Child Welfare Act 1960 (barnavårdslagen 1960:97 - "the 1960 Act"),

because of her mother's alcohol problems. Shortly afterwards, she

was placed in a foster home - with the Forsberg family - where she

stayed until she moved to her father's home in August 1989 (see

paragraphs 23-24 below). She returned to the foster home around

Christmas 1989 (see paragraph 25 below).

9. In January 1978 the applicant applied to the District Court

(tingsrätten) of Södertälje for legal custody of Susanne. In a

custody report to the court, dated 21 September 1978, the social

welfare authorities opposed his request, recommending instead that

a special legal guardian be appointed. The report observed, inter

alia, that the applicant had been reported several times for

offences of drunkenness. It also noted that Susanne had become

completely integrated into the foster family and that the Forsberg

children had accepted her as their own sister. Mr and Mrs Forsberg

had taken on their role as foster parents fully conscious of the

realities of the situation. They were prepared to take care of

Susanne for as long as necessary, on the understanding that this

might be until adulthood. Mr Rieme withdrew his request, allegedly

because the social welfare authorities had "threatened" to revoke

his right of access to Susanne.

10. On 30 November 1981 the applicant again asked the District

Court to grant him legal custody.

As appears from the minutes of the court's hearing on 17 March

1982, the court dismissed Mr Rieme's request for a provisional

transfer of custody, so that the social welfare authorities could

carry out a speedy examination of the question of custody. The

relevant report was completed on 27 June 1983. It noted, inter

alia, that according to a statement by the foster parents to the

social welfare authorities, Susanne was not looked upon as a

"foster child" - the expression was not even used in the foster

home. Moreover, they had stated that they did not know at the

outset how long Susanne's placement with them would last but that

it had become permanent. The report concluded that it was not in

Susanne's best interests to transfer the custody to the applicant.

Instead, custody should be given to a third person.

11. Nevertheless, by judgment of 28 September 1983, the court

ordered that the custody of Susanne be transferred to Mr Rieme,

having regard to, inter alia, the following considerations. Whilst

Susanne's placement in the foster home seemed consistent with her

best interests, the applicant had shown active concern for her and

had endeavoured to maintain contact. To an outsider, his

endeavours could appear to have been unwise and might not

correspond to a modern view of children's needs. However, one

should not attach undue importance to the applicant's lack of

insight in this matter. His wish to take care of Susanne was not

unusual and seemed natural. Furthermore, a transfer of custody

would not lead to termination of Susanne's placement in the foster

home but would, on the other hand, enable the applicant to have the

issue legally determined in the light of any changes which might

occur in their situation. Moreover, a transfer could stimulate

further contacts and would be valuable to Susanne in the long run.

The Social Council should see to it that such contacts did not

conflict with her best interests.

12. Susanne's mother, Mrs J., appealed to the Svea Court of Appeal

(Svea hovrätt) which, however, confirmed the transfer of custody in

a judgment of 21 June 1984.

B. Termination of public care and prohibition on removal

13. In the meantime, on 11 October 1983, the applicant had asked

the Social Council, firstly, to terminate the public care of

Susanne and, secondly, to grant him access to her at regular

intervals. The social welfare officers responsible for the case

carried out a review of the question of removing Susanne from the

foster home and, on 16 October 1984, following a hearing at which

the applicant, his lawyer and his wife - Mrs Anita Rieme - were

present, the Social Council granted the care claim but did not

determine the access claim. At the same time, it decided, pursuant

to section 28 of the Social Services Act 1980

(socialtjänstlagen 1980:620), to prohibit the applicant from

removing Susanne from the foster home, on the ground that there was

"a risk, which was not of a minor nature", that her mental health

could thereby be harmed. This decision was based on the social

welfare officers' report and recommendation to the Social Council,

dated 28 September 1984.

14. The report, which was attached to the recommendation, set out

the background of the case and analysed the relationships between

father and daughter, as well as interviews which the social workers

had carried out with the Rieme and Forsberg spouses. It also

reviewed Susanne's health and development and her need to remain

with the Forsberg family. The report relied on a psychiatric

opinion, appended thereto, from the Institution for Child and Youth

Psychiatry ("PBU") in Stockholm which was dated 7 June 1984 and

signed by Mr Jarkko Rantanen, psychologist, and Dr Sari Granström,

chief physician. The opinion observed, inter alia, the following:

Susanne had been living in the foster home since she was

eleven months old. Her contacts with the biological mother had

been interrupted whereas those with the applicant had continued on

a regular basis. However, in her eyes, the foster parents assumed

the role of her parents; she had not developed equally strong

emotional ties with the applicant and his wife. Similarly, she

considered the other children (three natural daughters and one

foster son) in the Forsberg home as her own brother and sisters.

Removing Susanne from this home would involve too many changes for

her: she would not only lose her much needed feeling of security

and psychological support derived from the Forsberg home, her

friends, her school and daily routines but she would also be faced

with unreasonably difficult problems of adaptation in a new

environment. Susanne had shown a tendency to react physically to

significant changes. She suffered from various psychosomatic

disorders - including enuresis and recurring stomach pains which

were likely to get worse in the event of a removal. This would

also entail a risk of her becoming increasingly depressed and

distant. Before removal could take place, Susanne's relationship

with the applicant and his wife needed to evolve further. The

question of removal should not be discussed with her until she had

become sufficiently mature and she should not be subjected to

further examinations related to this issue within the next few

years.

Further contacts between the applicant and Susanne should

develop in collaboration with the foster parents. If those ties,

which had already been established through regular meetings, were

to be able to continue, the applicant would need a great deal of

support in order to be capable of maintaining and furthering their

relationship, with due regard to the needs of his daughter.

C. First set of proceedings challenging the prohibition

on removal

15. The applicant lodged an appeal with the County Administrative

Court (länsrätten) in Stockholm against the prohibition on removal.

The court held a hearing in camera on 22 January 1985 at which the

applicant and his wife were present and represented by counsel. As

witnesses, it heard the foster parents, at the applicant's request,

and Dr Granström and Mr Rantanen, at the request of the Social

Council.

In its judgment of 25 January 1985, the court recalled that

the Social Council's decision to terminate the public care of

Susanne implied that the applicant's personal circumstances did not

as such constitute an obstacle to reuniting them. On the other

hand, the court had regard to the Social Council's assessment,

based on the above-mentioned psychiatric opinion (see paragraph 14

above), that remaining in the foster home was in Susanne's best

interests. She was a sensitive, fragile and vulnerable girl who

would lose her feeling of security and show certain psychosomatic

symptoms if she were to be immediately removed from the foster

home. Against this background, the court considered that removal

would involve a risk, which was not of a minor nature, of harming

her mental health. On balancing Susanne's interests against those

of the applicant, for which the court expressed great sympathy, it

found that there were preponderant reasons in favour of allowing

Susanne to remain in the foster home until further notice.

Consequently, the appeal was dismissed.

16. Mr Rieme appealed to the Administrative Court of Appeal

(kammarrätten) in Stockholm, requesting that the prohibition on

removal be lifted and, in the alternative, that the duration of the

prohibition be limited. The court dismissed the appeal by judgment

of 2 August 1985, which contained the following reasons:

"The aim of the provisions of section 28 of the Social

Services Act is to safeguard the best interests of the child.

Among the circumstances which must be considered in that

context are the age of the child and his or her abilities and

emotional ties. Furthermore, regard must be had, inter alia,

to the child's own wishes and to how long the child has been

cared for in the [foster] home.

Susanne ... has been cared for in the foster home since

October 1977 and thus for the major part of her life. She is

considered to be a sensitive child and has had certain

psychosomatic symptoms. After the County Administrative

Court's examination of the question of the removal of Susanne,

it appears that the relationship between Susanne and [the

applicant] has developed in a favourable manner. The

Administrative Court of Appeal finds, however, that an

enforced removal still involves a risk of harming Susanne's

mental health, a risk which is not of a minor nature. The

request to lift the prohibition from taking Susanne away from

the foster home cannot therefore be granted. The question of

when the prohibition can be lifted depends on how the contacts

between [the applicant] and Susanne develop in the future.

The Administrative Court of Appeal finds that the prohibition

cannot at present be limited in time."

17. On 23 September 1985 the applicant applied for leave to appeal

to the Supreme Administrative Court (regeringsrätten). Leave was

refused on 26 March 1986.

D. Particulars concerning the applicant's contacts with

his daughter

18. The social welfare officers' above-mentioned report (see

paragraphs 13-14 above) provided the following information on the

applicant's contacts with Susanne:

"When Susanne was taken into public care and placed in a

foster home in 1977, Antero Rieme maintained quite regular

contacts with her. Until early February 1978 he visited her

about once a week. Subsequently, the frequency of visits

decreased and, for a period, he did not visit Susanne at all.

During this period [he] kept himself informed about [her]

well-being through Esko Forsberg, who was a colleague at that

time. The following year the visits became more regular

[although] with varying frequency. Susanne recognised [her

father] and called him 'my second daddy'. [He] showed

interest in [her]. In August 1981 [he] expressed the wish

that [she] come to his and Anita's ... home for some weekends.

He planned to apply for the custody of the child and wanted

[the care] to be gradually transferred to him. The social

welfare officer then responsible for the case would not assist

in arranging for Susanne's transfer until the question of

custody had been determined, but approved of [her] visiting

the applicant occasionally at weekends, when one of the

Forsberg spouses was to accompany her. It was also decided

that [the applicant] should visit Susanne in the foster home

once a month.

In connection with her review of the question of custody,

dated [27 June 1983], Yvonne Zäll, Head of Section, considered

also the issue of a right of access. It was agreed that the

entire Forsberg family should visit the Rieme couple and,

moreover, that Susanne should visit them, accompanied by Minna

Forsberg. In the beginning, Susanne would not go alone -

without Riita and Minna Forsberg - but after a while it became

easier for her to be on her own with the Rieme spouses. She

has only been there at daytime, as she did not want to stay

overnight. It follows from the review of the question of

custody that Susanne was happy about the father's visits to

the [foster] family and that the foster parents' attitude to

them was positive.

Since the District Court decided that the custody of Susanne

should be vested in Antero Rieme, the Social Council ...

reviewed the question of removal. An agreement was reached

with Antero Rieme that access, pending the review, should take

place as follows: Susanne, Antero and Anita Rieme should meet

two Saturdays a month, one Saturday ... [at Forsbergs' home]

and one Saturday ... [at] the Riemes'.

Access should take place on condition that Susanne was

positive about [it]. The father wished to have the access

extended so as to receive Susanne for visits at his home every

other weekend from Friday night to Sunday night and for a week

in connection with the weekend of New Year's Eve. Since it

was of importance not to disturb or confuse Susanne, the

social welfare authorities and [the applicant] reached a

written agreement that no changes should be made concerning

access pending the examination [of the question of removal].

Nevertheless, in practice the access arrangements were changed

since the social workers agreed with Antero Rieme and the

Forsberg family that Susanne could spend the night at the

Riemes' ... home, should she so wish. So far she has not.

She has clearly stated that she does not wish to stay

overnight at [their] home. She has not been able to provide

any reasons for this. It has also happened that the Rieme

spouses came to the foster home merely to collect her [,

without actually visiting her in her home environment]."

19. According to the applicant, the social welfare authorities had

accepted, subject to further arrangements, that the child could

stay overnight at his home in the month of May 1984. However, he

stated that this did not materialise, apparently because they had

told the foster parents not to mention anything to Susanne about

it.

20. In a memorandum of 14 June 1985 addressed to the

Administrative Court of Appeal (in the proceedings concerning

prohibition on removal) the social welfare officer responsible for

the case stressed that contacts between Susanne and the applicant

should evolve slowly and gradually. Her own wishes in this respect

were of particular importance. At her own request, she had stayed

overnight three times at her father's home during the last couple

of months. She had clearly indicated that, for the time being, she

only wished to spend one night at a time there and that she did not

wish to join her father and his wife for a fortnight's holiday in

Finland in the summer of 1985.

However, according to the applicant, Susanne had expressed a

desire to go with them on holiday to Finland. When he contacted

the social welfare officer on the issue, the latter maintained, in

her letter dated 24 June 1985, that Susanne had stated the contrary

to her and that one should respect Susanne's choice. Meanwhile,

she hoped that the applicant and Susanne would get to know each

other better by the time of the next school vacation or another

holiday. In addition, under section 28 of the Social Services Act,

the Social Council had power to decide where Susanne was to stay.

Consequently, the applicant was not in a position to decide the

matter.

21. As from May 1986 Susanne stayed overnight every second week-

end with the applicant and his wife. She spent parts of her summer

holidays with them in 1986 and 1987 in Finland and about one week

at Christmas 1987, as well as Easter 1988 and New Year 1988-89.

22. In a memorandum of 15 December 1987 to the Ministry for

Foreign Affairs, apparently prepared in connection with the

proceedings before the Commission, the Social Council noted that

the measures taken by the social welfare authorities to bring about

closer contact between the applicant and his daughter, possibly

leading to her removal from the foster home, had essentially

consisted of providing support to Susanne and the foster home in a

manner aimed at making her meetings and holidays with the applicant

as natural as possible. Furthermore, the social welfare

authorities had supported initiatives taken by the foster parents

to improve their contacts with the applicant.

However, according to the memorandum, the applicant had

declined contact with the social welfare authorities since the

autumn of 1985, making it more difficult for them to work for a

better relationship between him and the foster parents.

Furthermore, Susanne was mature for her age and had become

increasingly able to express her own views. The social welfare

authorities had considered as decisive her wishes as to how the

contacts with the applicant were to be arranged. She had stayed in

the foster home since the age of one and had strong emotional ties

with the foster parents. The continued development of the contacts

between the applicant and Susanne should therefore take place at

her own pace and removal should only occur when she desired it.

E. Second set of proceedings challenging the prohibition on

removal

23. On 1 September 1989 the applicant again asked the Social

Council to lift the prohibition on removal. At that time, Susanne

had been staying with him since school started in August. After

reviewing the matter, the social welfare officers submitted a

report to the Social Council, noting that Susanne's psychosomatic

symptoms had disappeared a few years earlier and that her contacts

with the applicant and his wife had been close and had increased

steadily at her own pace. The relationship between the applicant

and the foster parents had been very tense over the years and for

long periods they had not had any contact at all. Susanne had

found herself in the difficult position of having to move backwards

and forwards between the families. However, she seemed to have

coped with the situation and had showed attachment to both sets of

parents who were now co-operating in her best interests. Since the

end of August 1989 she had been staying with the Riemes, with her

own and the foster parents' agreement, and was seeing the foster

parents whenever she wished. In view of this, the social welfare

officers recommended that the prohibition on removal be lifted.

24. On 20 November 1989 the Social Council terminated the

prohibition on removal.

F. Recent developments

25. Around Christmas 1989 Susanne returned to the Forsbergs' home,

where at her own wish she has been living ever since. In January

1990 the Forsbergs and the Riemes and Susanne met with the social

welfare authorities in Södertälje. On this occasion, the applicant

did not seem prepared to accept her staying with the Forsberg

family, whereas the latter stated that they wished her to do so and

would not force her to leave. The social welfare authorities have

as yet not taken any formal decision on the matter.

The applicant and his daughter have been in contact since her

return to the Forsberg family; for instance, she visited him at

Easter 1991.

II. Relevant domestic law

26. Decisions concerning the applicant's child 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 40-43 below).

A. Compulsory care

27. Under section 25(a) of the 1960 Act, the competent local

authority in child-care matters - the Child Welfare Board

(barnavårdsnämnden) or, in Stockholm and Gothenburg, the Social

District Council - was obliged to intervene:

"[if] a person, not yet eighteen years of age, is maltreated

in his home or otherwise treated there in a manner endangering

his bodily or mental health, or if his development is

jeopardised by the unfitness of his parent or other guardians

responsible for his upbringing or by their inability to raise

the child."

28. If the Board found that the child's situation corresponded to

that described in section 25 of the 1960 Act, it had, before

resorting to care, to endeavour to remedy the matter by preventive

measures (förebyggande åtgärder). These could consist of one or

more of the following steps: advice, material support, admonition

or warning, orders pertaining to the child's living conditions, or

supervision (section 26). If such measures proved insufficient or

were considered pointless, the Board had to place the child in care

(section 29).

29. The conditions for compulsory care under the 1980 Act were set

out in section 1, which read:

"Care is to be provided pursuant to this Act for persons under

eighteen years of age if it may be presumed that the necessary

care cannot be given to the young person with the consent of

the person or persons having custody of him and, in the case

of a young person aged fifteen or more, with the consent of

the young person.

Care is to be provided for a young person if

1. lack of care for him or any other condition in the home

entails a danger to his health or development, or

2. the young person is seriously endangering his health or

development by abuse of addictive substances, criminal

activity or any other comparable behaviour.

... "

30. It is primarily the responsibility of the municipalities to

promote a positive development for the young. For this purpose

each municipality has a Social District Council, composed of lay

members assisted by a staff of professional social workers.

31. The Child Welfare Board - or, in Stockholm and Gothenburg, the

Social District Council - had power to take decisions on public

care pursuant to the 1960 Act. Under the 1980 Act, such decisions

were taken by the County Administrative Court, on application by

the Social Council.

When a decision on public care had been taken, the Social

Council (formerly the Child Welfare Board under the 1960 Act) was

to implement it, by attending to the practical details of such

matters as placement, education and other treatment of the child

(sections 35-36 and 38-41 of the 1960 Act and sections 11-16 of the

1980 Act).

The 1980 Act required the care of the child to be carried out

in such a way as to enable him to have close contacts with his

relatives and to visit his home. This requirement could mean that

the child returns to his home, after a period, to live there,

although he is still formally under public care (section 11 of the

1980 Act).

32. Under section 42(1) of the 1960 Act, compulsory care had to be

discontinued as soon as the aims of the care measures were deemed

to have been achieved.

The corresponding rule in the 1980 Act provided that the

Social Council was obliged to monitor carefully the care and to

terminate it when it was no longer necessary (section 5).

33. At the relevant time, section 41 of the Social Services

Ordinance 1981 (socialtjänstförordningen 1981:750) laid down that

a care decision based on unsatisfactory conditions in the child's

home must be reconsidered by the Social Council regularly and at

least once a year.

Both before and after the entry into force of the 1980 Act, a

parent who has custody of the child could, under the general

principles of Swedish administrative law, at any time request that

the decision on public care be terminated.

34. According to a report by a special committee on social affairs

(Betänkande av Socialberedningen - SOU 1986:20), the social welfare

authorities in a number of municipalities have been operating a

distinction between support placement (stödplacering) and

substitute placement (ersättningsplacering), the latter designating

a more permanent form of placement.

B. Prohibition on removal

35. The Social Council could 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 (SOU 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.

36. 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.

37. 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.

C. Regulation of access

1. During compulsory care

38. The 1960 Act provided that the Child Welfare Board could

regulate a parent's right of access to his child in care to the

extent that it found this reasonable in the light of the aims of

the care decision, the upbringing of the child or other

circumstances (section 41).

Under the 1980 Act, restrictions on access could be imposed by

the Social Council, in so far as this was necessary for the

purposes of the care decision (section 16). Such decisions could

be appealed to the administrative courts by both the parents and

the child.

2. During prohibition on removal

39. On 18 July 1988 the Supreme Administrative Court held that a

decision by the Social Council to restrict the access rights of the

appellants, Mr and Mrs Olsson, while a prohibition on removal under

section 28 of the Social Services Act was in force had no legal

effect and that no appeal to the administrative courts would lie

against such a decision. The court 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 giving

the Social Council power to restrict the right of access

during the validity of the prohibition on

removal ..., 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."

D. New legislation

40. The provisions of the Social Services Act which related to the

prohibition on removal are now contained, in amended form, in the

1990 Act containing 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.

41. Section 24 of the 1990 Act, which corresponds to the previous

section 28 of the Social Services Act (see paragraph 35 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

Social Services Act, it was not intended, according to the

preparatory work (Prop. 1989/90:28, p. 83), to introduce thereby a

new standard.

42. 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.

43. Pursuant to section 31, the Social Council may regulate the

parent's access to the child if it is necessary in view of the

purposes of the prohibition on removal.

PROCEEDINGS BEFORE THE COMMISSION

44. In his application of 28 July 1986 to the Commission

(no. 12366/86), Mr Rieme alleged that his requests for transfer of

custody and for termination of the prohibition on removal had not

been determined "within a reasonable time" by the Swedish courts,

as required by Article 6 (art. 6) of the Convention. Moreover,

contrary to this provision, he had not received a fair hearing. He

further claimed that the maintenance in force of the prohibition on

removal over such a long period and the absence of an adequate

right to access to the child had given rise to a violation of his

right to respect for family life, as guaranteed by Article 8

(art. 8). He invoked, in addition, Article 17 (art. 17).

45. On 5 July 1989 the Commission declared the complaints under

Article 6 (art. 6) inadmissible and the remainder of the

application admissible.

In its report of 2 October 1990 (Article 31) (art. 31), the

Commission expressed the opinion, by eight votes to five, that

there had been a violation of Article 8 (art. 8). The full text of

the Commission's opinion and of the five separate opinions

contained in the report is reproduced as an annex to this

judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment

(volume 226-B of Series A of the Publications of the Court), but a

copy of the Commission's report is obtainable from the registry.

_______________

46. The Court notes that the applicant's daughter did not take

part and was not represented in the proceedings before the

Convention institutions.

FINAL SUBMISSIONS TO THE COURT

47. At the hearing on 25 November 1991, the Government confirmed

the final submission in their memorial, inviting the Court to find

that "the facts of the case do not reveal any violation of the

Convention".

AS TO THE LAW

I. SCOPE OF THE CASE

48. The applicant raised several issues under Article 6

(art. 6) of the Convention (see paragraph 44 above). However, the

case, as delimited by the Commission's decision on admissibility,

concerns only his complaint that the Swedish authorities had acted

in a way which hindered reunion with his child, in breach of

Article 8 (art. 8).

49. The Government maintained that the Convention institutions'

examination under Article 8 (art. 8) should not extend beyond

26 March 1986, which is the date of the last decision by a domestic

court in the case. The applicant had not availed himself of the

opportunity, which was open to him, to institute fresh proceedings

before domestic courts and had therefore failed to exhaust domestic

remedies in respect of facts which had occurred after that date.

Additionally, the Government warned against a tendency of

applicants not to pursue their claims domestically, once the

Commission had declared their application admissible. Mr Rieme had

not submitted a fresh request for revocation of the prohibition on

removal until 1 September 1989. In his case, a decision on

admissibility was taken on 5 July 1989. On the other hand, the

Government considered that facts which took place after

26 March 1986 were of interest to the extent that they could shed

light on facts before that date.

50. The Court notes that Mr Rieme did not complain of an isolated

act but rather of a situation in which he had been for some time

and which would continue until it was ended by a decision to lift

the prohibition on removal. The prohibition applied until further

notice and, as the Commission observed, apart from the passage of

time, there were no significant new facts which could justify fresh

proceedings to have it quashed. Were Article 26 (art. 26) to make

mandatory the taking of such steps, which by their very nature may

be repeated an indefinite number of times, it might create a

permanent barrier to bringing matters before the Convention

institutions (see, inter alia, the Guzzardi v. Italy judgment of

6 November 1980, Series A no. 39, pp. 29-30, para. 80).

51. Furthermore, whilst the Court's jurisdiction in contentious

matters is determined by the Commission's decision declaring the

originating application admissible, it is competent, in the

interests of economy of proceedings, to take into account facts

occurring during the course of the proceedings in so far as they

constitute a continuation of the facts underlying the complaints

declared admissible (see, amongst many other authorities, the

Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, pp.

28-29, para. 56).

52. For these reasons, the Government's preliminary objection is

rejected.

II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)

53. The applicant complained that the Swedish authorities had

hindered his reunion with his daughter Susanne in violation of

Article 8 (art. 8) of the Convention, which provides:

"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 rejected this contention, whereas the

Commission agreed that there had been a breach of this provision.

A. Existence of an interference

54. The mutual enjoyment by parent and child of each other's

company constitutes a fundamental element of family life, and the

natural family relationship is not terminated by reason of the fact

that the child is taken into public care (see, amongst many

authorities, the Margareta and Roger Andersson v. Sweden judgment

of 25 February 1992, Series A no. 226-A, p. 25, para. 72).

55. The implementation of the public care order, the subsequent

prohibition on removal and its maintenance in force clearly

constituted, and this was not disputed, an interference with the

applicant's right to respect for family life (see, ibid., and the

Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156,

p. 24, para. 58).

56. Such an interference constitutes a violation of

Article 8 (art. 8) unless it was "in accordance with the law", had

an aim or aims that is or are legitimate under Article 8 para. 2

(art. 8-2) and was "necessary in a democratic society" for the

aforesaid aim or aims (see, for example, the above-mentioned Olsson

judgment, Series A no. 130, p. 29, para. 59).

B. "In accordance with the law"

57. The applicant made several allegations to the effect that the

interference was not "in accordance with the law".

1. "Substitute placement"

58. In the applicant's contention, the social welfare authorities

had, contrary to Swedish law, placed Susanne in the Forsberg family

with the intention that she should never be reunited with him and

had promised them that they would be able "to keep the child for

good". She had been subjected to so-called "substitute placement"

(ersättningsplacering). This was a practice applied by the social

welfare authorities in certain cases, whereby it was decided at the

very outset that the placement was to be of a long-lasting or

permanent character (see paragraph 34 above), thus substituting the

foster parents for the natural parents. As a consequence, little

effort was made to reunite the child and the natural parents.

In support of his allegation, the applicant relied mainly on

an observation made in the custody review of 21 September 1978 (see

paragraph 9 above) that Susanne had become completely integrated

into the foster family and that the Forsberg spouses, who had taken

on their role as foster parents fully aware of the realities of the

situation, had been prepared to take care of her for as long as

needed and had accepted the prospect of her staying there until

adulthood. Furthermore, he referred to a statement in the custody

review of 27 June 1983 (see paragraph 10 above), according to which

the foster parents had not considered Susanne a "foster child" -

indeed the expression had not even been used in their home.

Moreover, they had stated that they had not known at the outset how

long Susanne's placement with them would last but that it had now

become permanent. In addition, the applicant pointed out that the

social welfare authorities had been opposed to his obtaining

custody of Susanne and had compelled him to have less contact with

her pending the two above-mentioned custody reviews. These reviews

- which had lasted for nine months and for one year and three

months, respectively - had unduly delayed his reunion with the

child. A further delay of almost a year had been caused by the

Social Council's review of the question of removal (see paragraph

13 above), carried out between October 1983 and September 1984, the

purpose of which had been to hinder reunion.

59. However, in the Court's view, the above does not bear out the

allegation that the foster parents were promised that they could

keep the child. Nor is there any indication that the social

welfare authorities acted in a manner inconsistent with Swedish

law, or with a view to hindering reunion. On the contrary, as

appears from the case-file, they sought to facilitate contact

between the applicant and his daughter and to enable them to deepen

their relationship (see paragraphs 18, 21 and 22 above). They

terminated the public care order in 1984 - shortly after the

applicant received custody of the child - and lifted the

prohibition on removal in 1989 (see paragraphs 11-13 and 23-24

above).

2. The law relating to prohibition on removal

60. The applicant did not dispute before the Court that the

prohibition on removal had a basis in Swedish law. However, he

argued that the law in question did not afford him adequate

protection against arbitrary interference. Not only was the

criterion in section 28 of the Social Services Act ("risk ... of

harming the child's ... mental health") vague but also the

preparatory work to this provision (see paragraph 35 above)

contained several unrelated and even contradictory criteria.

61. Like the Government and the Commission, the Court is unable to

share this view, for the reasons expressed in the

above-mentioned Eriksson judgment (Series A no. 156, pp. 24-25,

para. 60) in the following terms:

"Section 28 itself is admittedly worded in rather general

terms and confers a wide measure of discretion. However, it

is scarcely feasible to set out in advance all the

circumstances in which the removal of a child from a foster

home may cause a serious risk of harming his physical or

mental health. If the authorities' entitlement to act were to

be confined to cases where actual harm had already occurred,

the effectiveness of the protection which the child requires

would be unduly reduced. Moreover, in interpreting and

applying this section, the relevant preparatory work ...

provides guidance as to the exercise of the discretion it

confers and the administrative courts have competence to

review at several levels the decisions made pursuant to this

section.

Taking these safeguards against arbitrary interferences into

consideration, the scope of the discretion conferred on the

authorities by the section in question appears to the Court to

be reasonable and acceptable for the purposes of Article 8

(art. 8)."

3. Access arrangements

62. The applicant complained of not having been able to obtain a

decision by the social welfare authorities on the regulation of

access (see paragraph 13 above).

The Delegate of the Commission, for her part, stressed at the

Court's hearing that if any access restrictions were imposed while

the prohibition on removal was in force, they would lack a basis in

domestic law. She referred to the above-mentioned Eriksson

judgment (ibid., p. 25, para. 65) where it was held that:

"... the imposition of restrictions on access while a

prohibition on removal is in force has been found by the

Supreme Administrative Court to lack all legal effect as there

are no legal provisions on which any such restrictions could

be based [see paragraph 39 above]. Having regard to this

authoritative interpretation of Swedish law, the Court

concludes that the interference in question with

Mrs Eriksson's right to respect for family life did not have

the requisite basis in domestic law and was therefore not 'in

accordance with the law' for the purposes of Article 8

(art. 8)."

63. However, the Court notes that in the present case no formal

decision was taken with regard to access while the prohibition on

removal was in force. Instead, the access arrangements were the

result of co-operation between the applicant, the foster parents

and the social welfare authorities. Accordingly, access to his

daughter was gradually stepped up, so as to accommodate not only

his own wishes, but also hers (see paragraphs 20-22 above).

Consequently, the Court does not find it established that access

arrangements were imposed upon the applicant contrary to Swedish

law.

64. Having regard to the above, the Court is satisfied that the

interference was "in accordance with the law".

C. Legitimate aim

65. The applicant contended that the measures at issue did not

have a legitimate aim for the purposes of Article 8 (art. 8), as

they were taken with a view to preventing reunion between him and

the child.

66. The Court accepts that the relevant Swedish law was aimed at

protecting the "health" and "the rights and freedoms" of the child

and finds no indication that it was applied for any other purpose

in this instance (see paragraph 59 above). The interference thus

had aims that were legitimate under Article 8 para. 2 (art. 8-2).

D. "Necessary in a democratic society"

67. In the applicant's main submission, the social welfare

authorities had acted in a way calculated to hinder his reunion

with the child. In particular, the decision to prohibit removal

and its maintenance in force for over five years were not

"necessary in a democratic society". He had been unable to have

adequate access to the child. Nor had it been possible for him to

obtain a decision regulating access, despite having requested this

in connection with the termination of public care in 1984 (see

paragraph 13 above). As a consequence of the latter, no court

remedy had been available to him in respect of the access

arrangements (see paragraph 39 above).

68. On this latter point, the Court recalls that during the period

in question the access arrangements were the result of

co-operation (see paragraph 63 above).

69. The notion of necessity implies that the interference must be

proportionate to the legitimate aim pursued; in determining whether

an interference is "necessary in a democratic society", the Court

will take into account that a margin of appreciation is to be left

to the Contracting States (see, amongst many authorities, the

above-mentioned Eriksson judgment, Series A no. 156, p. 26,

para. 69).

Furthermore, it must be recalled that in cases like the

present a father's right to respect for family life under

Article 8 (art. 8) includes a right to the taking of measures with

a view to his being reunited with the child (see the above-

mentioned Eriksson judgment, Series A no. 156, pp. 26-27,

para. 71, and the above-mentioned Margareta and Roger Andersson

judgment, Series A no. 226-A, p. 30, para. 91).

70. In the Social Council's decision of 16 October 1984 and the

subsequent judgments upholding it (see paragraphs 13-17 above), the

reasons for the prohibition on removal were essentially that

Susanne - who was a very sensitive, fragile and vulnerable person -

suffered from psychosomatic problems. She had been staying with

the Forsberg family since an early age and had become deeply rooted

in that environment, where she felt secure and at home in all

respects. Separating her from this family would have led to too

many stressful changes for her and involved a risk of aggravating

her problems. It was therefore in her best interests to remain

with the Forsberg family and to develop her contacts with the

applicant in a gradual way. All these factors, on balance,

outweighed the applicant's interest in being reunited with her.

71. The Court, like the Government and the Commission, is

satisfied that these reasons were relevant and sufficient; they

provided a valid justification for the prohibition on removal and

its maintenance in force, at least up to 26 March 1986, when the

Supreme Administrative Court refused leave to appeal. In

particular, having regard to the Swedish authorities' margin of

appreciation, the interference complained of was not

disproportionate to the legitimate aims pursued.

72. As to the period after that date, the Commission considered

that, although they could not be said to have acted against

reunion, the social welfare authorities had failed to promote it

actively, as they were required to do. Moreover, taking into

account the transitional character of the kind of measure at issue,

its long duration in the present case could only be justified in

very special circumstances. The fact that the child had - at the

time when the public care order was lifted and the prohibition on

removal imposed - spent as much as seven years in the foster home,

and this since the age of one, militated in favour of a longer

transitional period than otherwise. However, while the prohibition

on removal was in force, the applicant did not have any legal

possibility to secure greater access. In view of these factors,

the Commission found that the interference was disproportionate to

the legitimate aims pursued; it was not "necessary in a democratic

society", notwithstanding Sweden's margin of appreciation, to

maintain the prohibition for over five years.

73. The Court has come to a different conclusion. As from

May 1986, Susanne stayed overnight every other weekend at the

applicant's home and spent several holidays with him and his wife

during the remainder of the period in issue (see paragraph 21

above). The measures taken in order to create closer contacts

between the applicant and his daughter had, as appears from the

Social Council's memorandum of 15 December 1987 (see paragraph 22

above), consisted mainly of providing support to Susanne and the

foster home to make her contacts with him as natural as possible.

She had been living in the foster home since an early age and had

strong emotional ties with the foster parents. In view of her age

and maturity, the relationship with her father was to evolve at her

own pace.

74. The applicant's contention that the social welfare authorities

intended to hinder reunion is, as already pointed out,

unsubstantiated. Unlike in the Eriksson case (Series A no. 156,

pp. 26-27, paras. 71-72), the Court sees no ground for criticising

their conduct in the present instance.

75. At all times the Swedish authorities acted within the law.

Having regard to their margin of appreciation, they cannot be said

not to have had relevant and sufficient reasons for keeping the

child in the foster home during the period in question.

76. Consequently, the Court does not find that the prohibition on

removal lasted for longer than could reasonably be thought

necessary.

77. Accordingly, there has been no violation of Article 8

(art. 8).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government's preliminary plea as to the scope of

the case;

2. Holds that there has been no violation of Article 8

(art. 8).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg,

on 22 April 1992.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar