ECHR 10465/83 Olsson v. Sverige (1) - Dom 24/03/1988 (Del 2)


Saken som Gun og Stig Olsson reiste mot Sverige ved Den Europeiske Menneskerettighetsdomstolen første gang.
Sverige ble dømt for krenkelse av menneskerettighetene.



Del 2

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AS TO THE LAW

I. SCOPE OF THE ISSUES BEFORE THE COURT

54. In the course of their submissions, the applicants made a number of general complaints concerning the alleged incompatibility with the Convention of, firstly, Swedish child-care law and, secondly, the practice of the Swedish courts.
The Court recalls that in proceedings originating in an application lodged under Article 25 (art. 25) of the Convention it has to confine itself, as far as possible, to an examination of the concrete case before it (see, as the most recent authority, the F v. Switzerland judgment of 18 December 1987, Series A no. 128, p. 16, § 31). Its task is accordingly not to review the aforesaid law and practice in abstracto, but to determine whether the manner in which they were applied to or affected Mr. and Mrs. Olsson gave rise to a violation of the Convention.
55. At the Court’s hearing, the Government contended that in its report the Commission had gone beyond the limits of its admissibility decision of 15 May 1985 by considering a number of decisions not examined therein or in respect of which domestic remedies had not been exhausted at that date. In their submission, the Court should not deal with the decisions in question, which were: firstly, those taken by the Council on 21 October 1980, 10 August 1982, 2 August 1983, 6 December 1983 and 30 October 1984 and by the County Administrative Court on 17 November 1982, in so far as they related to visits by the applicants to the children (see paragraphs 22 and 24 above); and secondly, those taken by the Council on 6 December 1983 and 30 October 1984, refusing the applicants’ requests for termination of care (see paragraphs 30-31 above).
The Commission replied that it had followed its constant practice of considering the facts of the case as they stood at the time of the establishment of its report and that, during the course of its proceedings, the Government had not pleaded a failure to exhaust domestic remedies in respect of any of the said decisions.
56. The Court observes that all those decisions pre-dated the Commission’s hearing on the admissibility and merits of the case (15 May 1985) and that in the circumstances there was nothing to prevent the Government from raising a plea of non-exhaustion at that time (see, as the most recent authority, the Bozano judgment of 18 December 1986, Series A no. 111, p. 19, § 44). Furthermore, the questions of the applicants’ visiting rights and of the requests for discontinuance of care were referred to during that hearing.
In addition, Rule 47 of the Rules of Court provides that "a Party wishing to raise a preliminary objection must file a statement setting out the objection and the grounds therefor not later than the time when that Party informs the President of its intention not to submit a memorial ...". In the present case - where no memorials on the merits were lodged (see paragraph 5 above) - the Government filed no such statement and raised their plea solely at the Court’s hearing. It must therefore be rejected as out of time.
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 the economy of the procedure, 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, as the most recent authority, the Weeks judgment of 2 March 1987, Series A no. 114, p. 21, § 37). In the Court’s view, the decisions in question can be regarded as falling into this category and the Commission acted properly in taking them into account.
57. On the other hand, the 1987 decisions concerning the prohibition on the removal of Helena and Thomas from their respective foster homes (see paragraph 32 above) are the subject of a further application which Mr. and Mrs. Olsson lodged with the Commission on 23 October 1987. Any new question raised therein cannot be settled by the Court in the present judgment (see the Swedish Engine Drivers’ Union judgment of 6 February 1976, Series A no. 20, p. 13, § 34, and the above-mentioned Weeks judgment, loc. cit.).
II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION

A. Introduction

58. The applicants asserted that the decision to take the children into care, the manner in which it had been implemented and the refusals to terminate care had given rise to violations of Article 8 (art. 8) of the Convention, which reads as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

This allegation was contested by the Government, but accepted by a majority of the Commission.
59. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life; furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see the W v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27, § 59). It follows - and this was not contested by the Government - that the measures at issue amounted to interferences with the applicants’ right to respect for their family life.
Such an interference entails 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 § 2 (art. 8-2) and was "necessary in a democratic society" for the aforesaid aim or aims (ibid., p. 27, § 60 (a)).
B. "In accordance with the law"

60. The applicants did not deny that the authorities had acted in accordance with Swedish law. However, they alleged that the measures taken were not "in accordance with the law" within the meaning of Article 8 (art. 8), notably because the relevant legislation set no limits on the discretion which it conferred and was drafted in terms so vague that its results were unforeseeable.
The Government contested this claim, which was not accepted by the Commission.
61. Requirements which the Court has identified as flowing from the phrase "in accordance with the law" include the following.
(a) A norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail; however, experience shows that absolute precision is unattainable and the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (see, for example, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 31, § 49).
(b) The phrase "in accordance with the law" does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law; it thus implies that there must be a measure of protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by, inter alia, paragraph 1 of Article 8 (art. 8-1) (see the Malone judgment of 2 August 1984, Series A no. 82, p. 32, § 67).
(c) A law which confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see the Gillow judgment of 24 November 1986, Series A no. 109, p. 21, § 51).
62. The Swedish legislation applied in the present case is admittedly rather general in terms and confers a wide measure of discretion, especially as regards the implementation of care decisions. In particular, it provides for intervention by the authorities where a child’s health or development is jeopardised or in danger, without requiring proof of actual harm to him (see paragraphs 35 and 37 above).
On the other hand, the circumstances in which it may be necessary to take a child into public care and in which a care decision may fall to be implemented are so variable that it would scarcely be possible to formulate a law to cover every eventuality. To confine the authorities’ entitlement to act to cases where actual harm to the child has already occurred might well unduly reduce the effectiveness of the protection which he requires. Moreover, in interpreting and applying the legislation, the relevant preparatory work (see paragraphs 36 and 38 above) provides guidance as to the exercise of the discretion it confers. Again, safeguards against arbitrary interference are provided by the fact that the exercise of nearly all the statutory powers is either entrusted to or is subject to review by the administrative courts at several levels; this is true of the taking of a child into care, a refusal to terminate care and most steps taken in the implementation of care decisions (see paragraphs 44, 45 and 50 above). Taking these safeguards into consideration, the scope of the discretion conferred on the authorities by the laws in question appears to the Court to be reasonable and acceptable for the purposes of Article 8 (art. 8).
63. The Court thus concludes that the interferences in question were "in accordance with the law".
C. Legitimate aim

64. The applicants submitted that, of the aims listed in paragraph 2 of Article 8 (art. 8-2), only the "protection of health or morals" could have justified the decision to take the children into care, but that their health or morals were not in fact endangered when it was adopted.
The Commission, on the other hand, considered that the decisions concerning the care and the placement of the children were taken in their interests and had the legitimate aims of protecting health or morals and protecting the "rights and freedoms of others".
65. In the Court’s view, the relevant Swedish legislation is clearly designed to protect children and there is nothing to suggest that it was applied in the present case for any other purpose. The interferences in question - intended as they were to safeguard the development of Stefan, Helena and Thomas - therefore had, for the purposes of paragraph 2 of Article 8 (art. 8-2), the legitimate aims attributed to them by the Commission.
D. "Necessary in a democratic society"

66. The applicants maintained that the measures at issue could not be regarded as "necessary in a democratic society". This submission was contested by the Government, but accepted by a majority of the Commission.
1. Introduction

67. According to the Court’s established case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is 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 left to the Contracting States (see, amongst many authorities, the above-mentioned W v. the United Kingdom judgment, Series A no. 121, p. 27, § 60 (b) and (d)).
68. There was considerable discussion during the hearing before the Court as to the approach to be adopted by the Convention institutions in resolving the necessity issue.
The Commission’s Delegate summarised the approach taken by the majority of the Commission as being: "to stay ... within the judgments of the domestic courts and, after making a detailed study of the relevant judgments, conclude whether or not [their] contents ... reveal sufficient reasons for taking a child into public care." She summarised the minority’s approach as being: "to stay within the judgments of the domestic courts and to examine whether the reasons [therein] seem to indicate that [they] have based themselves on irrelevant circumstances or that they have applied unacceptable criteria or standards for the justification of a public-care order. In essence the question is whether the national court has misjudged the necessity." The Government favoured the minority’s approach, adding that a wide margin of appreciation should be afforded to the national authorities so long as there was no reason to believe that the decisions were not taken in good faith, with due care and in a reasonable manner.
The approach which the Court has consistently adopted - and from which it sees no reason to depart on the present occasion - differs somewhat from those described above. In the first place, its review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith (see, inter alia, the above-mentioned Sunday Times judgment, Series A no. 30, p. 36, § 59). In the second place, in exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the reasons adduced to justify the interferences at issue are "relevant and sufficient" (see, amongst other authorities, mutatis mutandis, the Lingens judgment of 8 July 1986, Series A no. 103, pp. 25-26, § 40).
69. In concluding that there had been a violation of Article 8 (art. 8), the majority of the Commission based itself on the care decisions concerning the applicants’ children in combination with the placement of the children in separate foster homes and far away from the applicants.
In this respect, the Court shares the view of the Government that these are matters which should be examined separately: the factors and considerations which are relevant to an assessment of their necessity may not be the same.
2. The taking of the children into care and the refusals to terminate care

70. The applicants contended that it was not necessary to take the children into and maintain them in care; they alleged, inter alia, that no concrete facts had been established showing that the children were in danger, that there were no substantiated reasons justifying the taking into care and that there were no valid motives for refusing the requests for termination of care.
The Government contested this allegation. The majority of the Commission, on the other hand, was not convinced that the factual basis was so grave as to justify the taking into care, although it did observe that it was "understandable that the care order was not lifted".
71. Before turning to the substance of this issue, it is convenient to deal with an initial point. In its above-mentioned W v. the United Kingdom judgment, the Court held that certain procedural requirements were implicit in Article 8 (art. 8): as regards decisions in child-care matters, the parents must "have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests" (Series A no. 121, p. 29, § 64).
The Court agrees with the Commission that this requirement was satisfied as regards the care decisions themselves. Mr. and Mrs. Olsson attended a number of case conferences and were present at the meetings which preceded the Council’s decision of 16 September 1980 to take the children into care and its decision of 1 June 1982 not to terminate care (see paragraphs 10, 11, 12 and 27 above). They also attended hearings before the County Administrative Court and the Administrative Court of Appeal. Furthermore, they were legally represented during all the relevant judicial proceedings.
(a) The taking into care

72. In its judgment of 30 December 1980 (see paragraph 13 above), the County Administrative Court set out the following reasons for confirming the Council’s decision of 16 September 1980 to take the children into care:
(a) the children had for several years been living in an unsatisfactory home environment as a result of the parents’ inability to satisfy the children’s need of care, stimulation and supervision;
(b) Stefan and Thomas disclosed a clear retardation in their development and all three children were backward in language development;
(c) there was a great risk that Helena would develop negatively if she stayed in the parents’ home;
(d) preventive measures had been tried for several years, but without any resulting improvement;
(e) the health and development of the children were jeopardised as a result of the parents’ present inability to give them satisfactory care and education.
These reasons are clearly "relevant" to a decision to take a child into public care. However, it is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child; as the Commission rightly observed, it is not enough that the child would be better off if placed in care. In order to determine whether the foregoing reasons can be considered "sufficient" for the purposes of Article 8 (art. 8), the Court must have regard to the case as a whole (see paragraph 68 above) and notably to the circumstances in which the decision was taken.
73. Prior to the Council’s care decision of 16 September 1980, a number of different social authorities had been individually involved with the Olsson family; they had co-ordinated their activities in 1979, from which time a psychiatric team had followed the case (see paragraph 9 above). Various measures had been taken with a view to assisting the family and a number of case conferences had been held (see paragraphs 9, 10 and 11 above). It cannot therefore be said that the authorities intervened without adequate knowledge of the background.
The Council’s decision was based on a substantial report, compiled by the social administration after the children had been placed in care for investigation, which concluded that their development was in danger since they were living in an environment which was unsatisfactory due to their parents’ inability to satisfy their need for care, stimulation and supervision (see paragraph 12 above). That report was in turn supported by a number of statements from persons well acquainted with the case, including a medical report signed not only by Dr. Bosaeus but also by a psychologist, Helena Fagerberg-Moss; both were members of a team which was in touch with the family and the latter had, before the decision to place the children in care for investigation was taken, seen Helena and Thomas in order to assess their development and also visited the applicants’ home (ibid.).
It is true that the medical report referred to the applicants’ having been registered as retarded, whereas a subsequent examination revealed that they were of average intelligence (see paragraphs 9 and 12 above). However, as the Administrative Court of Appeal stated in its judgment of 16 February 1987 (see paragraph 31 above):
"As far as can be ascertained from the decision to take the Olsson children into care, the primary reason for this action was not any alleged mental retardation on the part of Mr. and Mrs. Olsson. The main reason cited in support of forced intervention was instead the parents’ ‘inability to give the children satisfactory care and upbringing’ - in view of Stefan’s obviously retarded development, for instance, and the retarded linguistic development of all the children."

In addition, as the minority of the Commission pointed out, the County Administrative Court’s judgment of 30 December 1980 was not founded solely on the documentation that had been before the Council. It had previously held a hearing, at which Mrs. Olsson and the children were represented and Dr. Bosaeus was heard as an expert (see paragraph 13 above), and it thus had the benefit of its own personal impression of the case. This was, moreover, a judgment which was referred on appeal to both the Administrative Court of Appeal and the Supreme Administrative Court, without being reversed (see paragraphs 14 and 15 above).
74. In the light of the foregoing, the Court has come to the conclusion that the impugned decision was supported by "sufficient" reasons and that, having regard to their margin of appreciation, the Swedish authorities were reasonably entitled to think that it was necessary to take the children into care, especially since preventive measures had proved unsuccessful.
(b) The refusals to terminate care

75. In its judgment of 17 November 1982 (see paragraph 28 above), the County Administrative Court set out the following reasons for confirming the Council’s decision of 1 June 1982 to refuse the applicants’ request for termination of the care of the children:
(a) on returning to his foster home after visits to his parents, Stefan had been disturbed in various ways and had relapsed into his previous negative behaviour; his return trip on 28 June 1982 had developed in an unfortunate way for him;
(b) the applicants had had difficulties in co-operating with Stefan’s foster home and the Council;
(c) the applicants still showed a lack of comprehension and ability to give the children satisfactory care and education, so that it had to be feared that termination of care could at that time involve great risks for their health and development.
Here again, these reasons are clearly "relevant" to a decision to maintain a child in care. However, whether they were "sufficient" in the present case calls for further scrutiny.
76. It has to be recalled that the Council’s refusal to terminate care was based on reports compiled by the social administration which concluded that the parents were at the time incapable of giving the children the necessary support and encouragement (see paragraph 27 above). These reports were in turn supported by statements from persons well acquainted with the case, including the psychologist, Helena Fagerberg-Moss (ibid.). Above all, on this occasion as well, the County Administrative Court’s judgment - like that of the Administrative Court of Appeal which confirmed it - was founded not only on written material but also on a hearing in the presence of the applicants (see paragraphs 28 and 29 above). And again, the judgment of the Administrative Court of Appeal was not reversed (see paragraph 29 above).
It could be thought that the children’s favourable development whilst in care and especially the apparent improvement and stabilising by 1982 of the applicants’ situation - both of which were recorded in the County Administrative Court’s judgment - militated against continuation of care. However, the Court considers that it is justifiable not to terminate public care unless the improvement in the circumstances that occasioned it appears with reasonable certainty to be stable; it would clearly be contrary to the interests of the child concerned to be restored to his parents, only to be taken into care again shortly afterwards.
77. In the light of the foregoing, the Court has come to the conclusion that in 1982 the Swedish authorities had "sufficient" reasons for thinking that it was necessary for the care decision to remain in force. Neither has it been established that a different situation obtained when they subsequently maintained the care decision until its final reversal on different dates in the first half of 1987 (see paragraphs 30 and 31 above).
3. The implementation of the care decision

78. According to the applicants, the implementation of the care decision also gave rise to a violation of Article 8 (art. 8). They relied, inter alia, on the placement of the children separately and at a long distance from each other and their parents, on the restrictions on and the conditions of visits and on the conditions in the homes where the children were placed.
79. In contesting this claim, the Government argued that the measures relating to the placement of the children had been taken in good faith, were not unreasonable and were justified by the special circumstances. They adverted in particular to the following matters: the fear that the parents might remove the children, as they had previously done with Stefan (see paragraph 17 above); the desire to avoid keeping the children in institutions for too long, coupled with the limited supply of suitable foster homes; the special needs of Stefan, which led to his being placed with the Ek family whom he already knew, his subsequent move having been motivated solely by conflicts between the natural and the foster parents (see paragraph 17 above); the view that, having regard to Helena’s inclination "to take too great a responsibility for her brother Thomas" (see paragraph 12 above) and to the special needs of these two children, it would not have been realistic or "psychologically appropriate" to place them in the same foster home; and the last-minute impossibility of fulfilling the original intention to place these two children in the same village (see paragraph 19 above).
The Government further submitted that the applicants’ previous removal of Stefan from his home and their attitude of confrontation towards the foster parents, respectively, justified the initial and the later restrictions on their access to Helena and Thomas (see paragraph 24 above). They added that Mr. and Mrs. Olsson had in any event not made full use of their entitlement to visit all three children.
80. The Court finds, like the Commission, that it is not established that the quality of the care given to the children in the homes where they were placed was not satisfactory. The applicants’ complaint on this score must therefore be rejected.
81. As for the remaining aspects of the implementation of the care decision, the Court would first observe that there appears to have been no question of the children’s being adopted. The care decision should therefore have been regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and any measures of implementation should have been consistent with the ultimate aim of reuniting the Olsson family.
In point of fact, the steps taken by the Swedish authorities ran counter to such an aim. The ties between members of a family and the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other. Yet the very placement of Helena and Thomas at so great a distance from their parents and from Stefan (see paragraph 18 above) must have adversely affected the possibility of contacts between them. This situation was compounded by the restrictions imposed by the authorities on parental access; whilst those restrictions may to a certain extent have been warranted by the applicants’ attitude towards the foster families (see paragraph 26 above), it is not to be excluded that the failure to establish a harmonious relationship was partly due to the distances involved. It is true that regular contacts were maintained between Helena and Thomas, but the reasons given by the Government for not placing them together (see paragraph 79 above) are not convincing. It is also true that Stefan had special needs, but this is not sufficient to justify the distance that separated him from the other two children.
The Administrative Court of Appeal, in its judgment of 16 February 1987 (see paragraph 31 above), itself commented as follows on the applicants’ access to Helena and Thomas:
"Of course, the extremely bad relations between Mr. and Mrs. Olsson on the one hand and Helena and Thomas and their respective foster parents on the other hand are not due only to the Olssons. However, the Administrative Court of Appeal considers it strange that the parents’ negative attitude to the foster parents resulted in their not meeting the youngest children for over two years, nor even showing any particular interest in talking to the children on the telephone, for instance. Even if there has been some difficulty for the social council to assist in establishing better relations - due to the action of the parents’ representative, for instance, and the children’s own attitude - it would have been desirable for the social council to have been more active and not, for instance, to have limited the right of access to once every three months."

82. There is nothing to suggest that the Swedish authorities did not act in good faith in implementing the care decision. However, this does not suffice to render a measure "necessary" in Convention terms (see paragraph 68 above): an objective standard has to be applied in this connection. Examination of the Government’s arguments suggests that it was partly administrative difficulties that prompted the authorities’ decisions; yet, in so fundamental an area as respect for family life, such considerations cannot be allowed to play more than a secondary role.
83. In conclusion, in the respects indicated above and despite the applicants’ unco-operative attitude (see paragraph 26 above), the measures taken in implementation of the care decision were not supported by "sufficient" reasons justifying them as proportionate to the legitimate aim pursued. They were therefore, notwithstanding the domestic authorities’ margin of appreciation, not "necessary in a democratic society".
E. Overall conclusion

84. To sum up, the implementation of the care decision, but not that decision itself or its maintenance in force, gave rise to a breach of Article 8 (art. 8).
III. ALLEGED VIOLATION OF ARTICLE 3 (art. 3) OF THE CONVENTION

85. The applicants alleged that they had been victims of a violation of Article 3 (art. 3) of the Convention, which provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

In their view, there had been "inhuman treatment" as a result of:
(a) the taking away of the children without sufficient reason;
(b) the frequent moving of Stefan from one home to another, his ill-treatment at the hands of the Ek family and his placement in an institution run by the Board for the Retarded (see paragraph 17 above);
(c) the manner in which, on one occasion, Stefan and Thomas had been removed, with police assistance, from the applicants’ home.
The Government contested these claims.
86. The Commission considered that it had already dealt in its report, in the context of Article 8 (art. 8), with the essential issues raised by point (a) and that no separate issue arose under Article 3 (art. 3). The Court is of the same opinion.
The Court has also already endorsed, in paragraph 80 above, the Commission’s finding that the allegation of ill-treatment of Stefan was not substantiated. As regards the other matters relied on by Mr. and Mrs. Olsson in points (b) and (c), these did not, in the Court’s view, constitute "inhuman treatment".
87. There has therefore been no breach of Article 3 (art. 3).
IV. ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION

88. The applicants submitted that they had not received a "fair hearing" in the domestic judicial proceedings and had accordingly been victims of a breach of Article 6 (art. 6) of the Convention, which, so far as is relevant, provides:
"In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

Apart from the complaints as to the practice of the Swedish courts (see paragraph 54 above), reliance was placed on their having heard Dr. Bosaeus as an expert although she had been the Council’s expert, the manner in which they took her evidence and, more generally, their alleged failure to make proper enquiries about the applicants’ mental health and ability to care for the children.
These claims were contested by the Government and rejected by the Commission.
89. Dr. Bosaeus was heard by the County Administrative Court on two occasions: firstly, on 18 December 1980, as an expert (see paragraph 13 above); secondly, on 4 November 1982, as a witness called at the request of the applicants’ lawyer (see paragraph 28 above).
This doctor was one of the co-signatories of the medical report on which the Council’s care decision of 16 September 1980 had been partly based (see paragraph 12 above). In a case of this kind, it was reasonable that, with her extensive knowledge of the background, she should have been heard as an expert in 1980. This could have rendered the proceedings unfair only if it were established - which is not the case - that the applicants had been prevented from cross-examining her or calling a counter-expert to rebut her testimony.
The complaint concerning the manner in which Dr. Bosaeus’ evidence was taken relates to the 1982 hearing. However, the Court is not satisfied that the matters cited by the applicants - her presence in the court-room before she gave evidence and the County Administrative Court’s alleged failure both to remind her of her obligation to tell the truth and to insist that she answered certain questions - are sufficient to show that the proceedings were not fair.
90. As for the applicants’ more general allegation, they were at all times represented by a lawyer and were able to submit such material and arguments as they saw fit. The only exception was the Administrative Court of Appeal’s refusal to accept their request that Dr. Bosaeus be heard as a witness at its hearing in 1982 (see paragraph 29 above); however, she had already been heard in the County Administrative Court.
Viewing the domestic judicial proceedings as a whole, the Court finds no material to support a conclusion that they were not fair or that the Swedish courts failed to make due and proper enquiries.
91. There was therefore no breach of Article 6 (art. 6).
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 8 (art. 14+8)

92. The applicants asserted that the interferences with their rights had been based not on objective grounds but on their "social origin" and that they had therefore been victims of discrimination contrary to Article 14 of the Convention, taken together with Article 8 (art. 14+8). The former provision reads as follows:
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Commission found nothing in the case-file to substantiate this allegation, which was contested by the Government.
93. The Court shares the view of the Commission and therefore rejects this claim.
VI. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 (P1-2)

94. The applicants submitted that there had been a violation of the second sentence of Article 2 of Protocol No. 1 (P1-2) to the Convention, which reads:
"In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."

They argued that the violation had arisen because:
(a) Thomas had been placed in a family who belonged to a religious denomination and attended church with him (see paragraph 20 above), whereas they did not wish their children to receive a religious upbringing;
(b) the placement of the children so far away from the parents and without consultation as to the choice of foster home deprived the latter of the possibility of influencing the former’s education.
The Government contested these claims. The Commission rejected the first and expressed no view on the second.
95. The Court agrees with the Commission that the fact that the children were taken into public care did not cause the applicants to lose all their rights under Article 2 of Protocol No. 1 (P1-2).
It notes, however, as did the Commission, that Mr. and Mrs. Olsson, though describing themselves as atheists, have not left the Church of Sweden (see paragraph 8 above) and that there is no serious indication of their being particularly concerned, except at a rather late stage, with giving the children a non-religious upbringing.
Neither have Mr. and Mrs. Olsson shown that in practice the general education of the children whilst in public care diverged from what they would have wished.
96. In these circumstances, no violation of Article 2 of Protocol No. 1 (P1-2) has been established.
VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 2 OF PROTOCOL NO. 1 (art. 13+P1-2)

97. The applicants contended that, since no remedy was available to them in respect of the breach of Article 2 of Protocol No. 1 (P1-2) allegedly resulting from Thomas’ being given a religious upbringing, they were victims of a breach of Article 13 (art. 13) of the Convention, which provides:
"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

98. The Court agrees with the Commission and the Government that this claim has to be rejected. Leaving aside the possibility of seeking redress before the County Administrative Board, a parent could, after the entry into force of the 1980 Act, appeal to the County Administrative Court against a placement decision taken by a Social Council (see paragraph 50 in fine above). Both before and after that time, the question of a child’s religious upbringing could have been raised and examined in a request for termination of care (see paragraph 49 in fine above). There is nothing to suggest that these remedies, which were apparently not utilised by the applicants as regards Thomas’ upbringing, would not have been "effective", within the meaning of Article 13 (art. 13).
VIII. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

99. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

The applicants claimed under this provision 30,000,000 Swedish crowns (SEK) for non-pecuniary damage, together with reimbursement of legal fees and expenses in the sum of 884,500 SEK. The first-mentioned amount was, unless the Court could order payment to the applicants only, to be paid to them and the children in five equal shares.
A. Damage

100. At the Court’s hearing, the Government, whilst reserving their position, indicated that they considered the claim for damage to be excessive. The Commission’s Delegate also found the amount claimed to be out of proportion; she suggested that a figure of 300,000 SEK would be reasonable and equitable.
101. The Court considers that, notwithstanding the Government’s reservation, this question is ready for decision (Rule 53 § 1 of the Rules of Court). It would first observe that it cannot accept the request, contained in the claims filed by the applicants on 27 July 1987, for an award of just satisfaction to the children: it is only Mr. and Mrs. Olsson who are applicants in the present proceedings.
102. The violation of Article 8 (art. 8) of the Convention found by the Court in the instant case arose solely from the manner in which the care decision was implemented (see paragraph 84 above). It follows that the applicants are not entitled to just satisfaction for that decision and the taking away of the children as such, but only for the prejudice which they may have suffered on account of the separation of the children from each other, the placement of Helena and Thomas at a long distance from the applicants’ home and the restrictions on visits.
There can be no doubt, in the Court’s view, that these matters caused Mr. and Mrs. Olsson considerable inconvenience and, above all, substantial anxiety and distress. Regular and frequent contacts with the children were greatly impeded and the possibilities for the whole family to meet together were minimal. And this situation, with its deleterious effects on the applicants’ family life, endured for some seven years.
These various factors do not readily lend themselves to precise quantification. Making an assessment on an equitable basis, as is required by Article 50 (art. 50), the Court awards Mr. and Mrs. Olsson together the sum of 200,000 SEK under this head.
B. Legal fees and expenses

103. The applicants’ claim for legal fees and expenses, totalling 884,500 SEK, was made up of the following items:
(a) 630,700 SEK for 901 hours’ work by their lawyer (at 700 SEK per hour) in the domestic proceedings and 14,600 SEK for related expenses;
(b) 234,500 SEK for 335 hours’ work (at the same rate) in the proceedings before the Commission and the Court and 4,700 SEK for related expenses.
The Government contested this claim in several respects, arguing in particular that: the applicants’ statement of the fees and expenses they had incurred in the domestic proceedings was insufficiently precise to permit of anything other than an equitable assessment; the amounts sought in respect of those proceedings related partly to work on questions that were not material to the case before the Strasbourg institutions and partly to work that was unnecessary; the hourly rate charged, though acceptable for the Strasbourg proceedings, was excessive for the domestic proceedings; and the time spent by the applicants’ lawyer on the Strasbourg proceedings exceeded what was reasonable. The Government were willing to pay total sums of 290,000 SEK for fees and 12,800 SEK for expenses, subject to a pro rata reduction in respect of such allegations pursued by Mr. and Mrs. Olsson before the Court as it might not sustain.
The Commission’s Delegate found the amounts claimed to be very high; she shared many of the observations made by the Government and considered that the sums they proposed constituted a reasonable basis for the Court’s assessment.
104. An award may be made under Article 50 (art. 50) in respect of costs and expenses that (a) were actually and necessarily incurred by the injured party in order to seek, through the domestic legal system, prevention or rectification of a violation, to have the same established by the Commission and later by the Court and to obtain redress therefor; and (b) are reasonable as to quantum (see, amongst many authorities, the Feldbrugge judgment of 27 July 1987, Series A no. 124-A, p. 9, § 14).
105. (a) The Court has found that neither the care decision itself nor its maintenance in force gave rise to a breach of Article 8 (art. 8) (see paragraph 84 above). Accordingly, to the extent - which was considerable - that the steps taken by the applicants in the domestic proceedings related to these matters, as distinct from the implementation of the care decision, no award can be made under Article 50 (art. 50) in respect of the fees and expenses involved. Furthermore, some of the costs claimed - for example, those relating to contacts by the applicants’ lawyer with journalists for publicity in Sweden and abroad and to her investigation of a murder allegedly committed in the children’s home where Stefan was placed - cannot be regarded as "necessarily incurred". Again, others concerned issues falling outside the scope of the case before the Court, such as the prohibition on the removal of Helena and Thomas from their foster homes (see paragraph 57 above).
(b) As regards the fees and expenses referable to the Strasbourg proceedings, the Government did not contest that the applicants had incurred liability to pay sums additional to those covered by the legal aid which they had received from the Council of Europe (see, inter alia, the Inze judgment of 28 October 1987, Series A no. 126, p. 22, § 56). The Court, however, shares the Government’s view that the amount claimed is excessive. It also agrees that the sum to be awarded should reflect the fact that some substantial complaints by the applicants remained unsuccessful (see, as the most recent authority, the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 33, § 86).
106. Taking into account the above factors and also the relevant legal aid payments made by the Council of Europe and making an assessment on an equitable basis, the Court considers that Mr. and Mrs. Olsson are together entitled to be reimbursed, for legal fees and expenses, the sum of 150,000 SEK.
FOR THESE REASONS, THE COURT

1. Rejects unanimously the Government’s plea concerning the scope of the case;
2. Holds by ten votes to five that the decision to take the children into care and its maintenance in force did not give rise to a violation of Article 8 (art. 8) of the Convention;
3. Holds by twelve votes to three that there has been a violation of Article 8 (art. 8) on account of the manner in which the said decision was implemented;
4. Holds unanimously that there has been no violation of Article 6 (art. 6) of the Convention;
5. Holds unanimously that there has been no violation of Article 3 (art. 3) of the Convention, of Article 14 of the Convention, taken together with Article 8 (art. 14+8), of Article 2 of Protocol No. 1 (P1-2), or of Article 13 of the Convention, taken together with the said Article 2 (art. 13+P1-2);
6. Holds unanimously that Sweden is to pay to the applicants together, for non-pecuniary damage, 200,000 (two hundred thousand) Swedish crowns and, for legal fees and expenses, 150,000 (one hundred and fifty thousand) Swedish crowns;
7. Rejects unanimously the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 24 March 1988.
Rolv RYSSDAL
President
Marc-André EISSEN
Registrar
In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the following separate opinions are annexed to the present judgment:
(a) joint partly dissenting opinion of Mr. Ryssdal, Mr. Thór Vilhjálmsson and Mr. Gölcüklü;
(b) opinion of Mr. Pinheiro Farinha, Mr. Pettiti, Mr. Walsh, Mr. Russo and Mr. De Meyer.
R.R.
M.-A.E.

JOINT PARTLY DISSENTING OPINION OF JUDGES RYSSDAL, THÓR VILHJÁLMSSON, AND GÖLCÜKLÜ

As to the alleged violation of Article 8 (art. 8) of the Convention, we can subscribe only in part to the finding of the Court.
I. Introduction

The separation of children from their parents through a care decision taken by a State authority is certainly a serious interference with family life. In this respect it is important to protect parents and children against arbitrary intervention. The State concerned must be able to demonstrate that the views and interests of the parents have been duly taken into account and that the whole decision-making process is such as to ensure that the measures adopted are necessary to safeguard the children’s interests.
An important feature of the relevant Swedish legislation is the possibility of judicial proceedings before the administrative courts and the competence of those courts to examine fully whether children should be taken into care and how a care decision should be implemented.
It is established that different social authorities had been involved with the Olsson family to a considerable extent prior to the events giving rise to the present case. There had been continuing and intensive contacts, including contacts with Mr. and Mrs. Olsson. Home-therapy had been tried without success. According to the examination of the facts and evidence conducted by the Social District Council and the competent domestic courts, the parents were not able to deal satisfactorily with the children, and in August-September 1980 the latter’s needs created some kind of an emergency situation with the result that the Council considered it necessary to take them into care.
II. The care decision

We agree with the Court that the decision to take the children into care and its maintenance in force until 1987 did not give rise to a violation of Article 8 (art. 8) of the Convention, for the reasons given in paragraphs 71-74 and 75-77, respectively, of the judgment. In this context we would emphasise two facts: firstly, the Council’s decision of 16 September 1980 was confirmed by adequately reasoned judgments of the County Administrative Court (30 December 1980) and of the Administrative Court of Appeal (8 July 1981); secondly, the Council’s subsequent refusal to terminate care was confirmed by adequately reasoned judgments of the County Administrative Court (17 November 1982) and of the Administrative Court of Appeal (28 December 1982).
III. The implementation of the care decision

Paragraph 78 of the Court’s judgment states that the applicants complained of (i) the placement of the children separately and at a long distance from each other and their parents; (ii) the restrictions on and the conditions of visits; and (iii) the conditions in the homes where the children were placed.
First of all we would like to stress - as the Court has also done - that there is nothing to suggest that the Swedish authorities did not act in good faith in implementing the care decision.
As to the last of the complaints listed above, we agree with the Court that it is not established that the quality of the care given to the children in the homes where they were placed was not satisfactory. This complaint must accordingly be rejected.
As to the complaint about the placement, which mainly concerns the placement of Helena and Thomas far away from Gothenburg, we would first say that when a care decision - as in the present case - is to be regarded as a temporary measure, it is generally desirable to place the children in foster homes that are not far away from their parents’ home. However, in view of Mr. and Mrs. Olsson’s conduct in the autumn of 1980 - their removal and hiding of Stefan -, it was quite reasonable for the Council to consider that Helena and Thomas could not be placed in foster homes in the Gothenburg region. It seems unfortunate that they were placed at so great a distance from Gothenburg, but it may have been difficult to find foster parents able and willing to satisfy the special needs of these two children. In our opinion, the Council’s view that it was not appropriate to place both of them in the same foster home has to be accepted. Moreover, we are satisfied that the Council did really try to place them in the same village, but that this became impossible because one of the chosen families in the end declined to receive the child. In any event, the national authorities must enjoy a considerable discretion in this respect, since the decision on such a matter has to be based on an overall appraisal of a number of facts, including the availability of suitable foster homes and the needs of the children taken into care.
As to the restrictions on visits, it should be mentioned that the County Administrative Court confirmed them on two occasions and that, after its decision of 3 October 1985, Mr. and Mrs. Olsson withdrew their appeal on this point in subsequent proceedings before the Administrative Court of Appeal (see paragraph 24 of the European Court’s judgment). Moreover, they did not make full use of their entitlement to visit in accordance with the decisions taken and, on the subject of contacts with the children, their whole attitude seems to have been rather negative as regards co-operation with the foster parents and the social authorities (see paragraphs 25 and 26 of the judgment).
In the particular circumstances of the case and taking into account the domestic authorities’ margin of appreciation, we have come to the conclusion that the measures taken in implementation of the care decision could reasonably be considered necessary and proportionate to the legitimate aim pursued, and that they accordingly did not give rise to a violation of Article 8 (art. 8) of the Convention.

SEPARATE OPINION OF JUDGES PINHEIRO FARINHA, PETTITI, WALSH, RUSSO AND DE MEYER

We take the view that the decisions at issue themselves, as well as their implementation, unjustifiably interfered with the right of the applicants to respect for their family life.
We feel that it cannot be accepted that children can be taken away from their parents without a prior judicial decision, save in cases of emergency.
Moreover, we believe that it has not been shown that in the present case such a measure was really "necessary in a democratic society".
* Note by the Registrar: The case is numbered 2/1987/125/176. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.


ASHINGDANE v. THE UNITED KINGDOM JUGDMENT

OLSSON v. SWEDEN (No. 1) JUGDMENT

OLSSON v. SWEDEN (No. 1) JUGDMENT

OLSSON v. SWEDEN (No. 1) JUGDMENT
JOINT PARTLY DISSENTING OPINION OF JUDGES RYSSDAL, THÓR VILHJÁLMSSON, AND GÖLCÜKLÜ

OLSSON v. SWEDEN (No. 1) JUGDMENT
JOINT PARTLY DISSENTING OPINION OF JUDGES RYSSDAL, THÓR VILHJÁLMSSON, AND GÖLCÜKLÜ

OLSSON v. SWEDEN (No. 1) JUGDMENT
SEPARATE OPINION OF JUDGES PINHEIRO FARINHA, PETTITI, WALSH, RUSSO AND DE MEYER