ECHR 13441/87 Olsson v. Sverige (2) - Dom 27/11/1992 (Del 2)


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


Del 2

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58. According to the case-law of the Supreme Administrative
Court (RÅ 1984 2:78), while a prohibition on removal is in force,
the Social Council is under a duty to ensure that appropriate
measures aimed at reuniting parents and child are taken without
delay.

59. Section 28 of the Social Services Act did not apply to
children who were being cared for in foster homes under section 1 of
the 1980 Act. As long as such care continued, the right of the
guardian to determine the domicile of the child was suspended.
Whilst that right in principle revived on the termination of such
care, it could be further suspended by an application of section 28
by the social welfare authorities.

60. Under section 73 of the Social Services Act, a decision
taken under section 28 could be appealed to the administrative
courts. In practice, besides the natural parents both the child
concerned and the foster parents have been allowed to lodge such
appeals. In the proceedings before the administrative courts, a
special guardian may be appointed to protect the interests of the
child, should these come into conflict with those of the child's
legal guardian.

2. Regulation of access

61. While a child was in public care under the 1980 Act, the
Social Council was empowered to impose restrictions on the parents'
right of access to him, in so far as necessary for the purposes of
the care decision (section 16). Such restrictions could be appealed
against to the administrative courts by both the parents and the
child.

62. The legal position concerning restrictions on access during
a prohibition on removal was different. As held by the Supreme
Administrative Court on 18 July 1988, a decision by the Social
Council to restrict the access rights of Mr and Mrs Olsson - who
were the appellants in that case - while a prohibition on removal
under section 28 of the Social Services Act was in force had no
legal effect and no appeal to the administrative courts would lie
against such a decision (see paragraph 33 above).

3. Municipal appeal

63. Pursuant to sections 1 and 2 of Chapter 7 of the 1977
Municipal Act (kommunallagen 1977:179), a member (medlem, e.g. a
resident) of a municipality may lodge a municipal appeal
(kommunalbesvär) with the Administrative Court of Appeal against
decisions by municipalities on the following grounds: failure to
observe the statutory procedures, infringement of the law, ultra
vires conduct, violation of the complainant's own rights, or other
unfairness. The appeal has to be filed within three weeks from the
date on which approval of the minutes of the decision has been
announced on the municipal notice-board. If the court upholds the
appeal, it may quash the decision, but not give a new decision.

B. New legislation

64. The provisions of the Social Services Act which related to a
prohibition on removal are now contained, in amended form, in the
1990 Act with Special Provisions on the Care of Young Persons (lagen
1990:52 med särskilda bestämmelser om vård av unga - "the 1990
Act"). This entered into force on 1 July 1990.

65. Section 24 of the 1990 Act, which corresponds to the
previous section 28 of the Social Services Act (see paragraph 57
above), provides that the County Administrative Court may, on
application by the Social Council, impose a prohibition on removal
for a certain time or until further notice. The condition for such
a prohibition is that there must be

"an apparent risk (påtaglig risk) that the young person's
health and development will be harmed if he is separated
from the home".

Although this wording differs from that of section 28 of the
1980 Act, it was not intended, according to the preparatory work
(Prop. 1989/90:28, p. 83), to introduce a new standard.

66. According to section 26 of the 1990 Act, the Social Council
shall, at least once every three months, consider whether a
prohibition on removal is still necessary. If it is not, it shall
lift the prohibition.

67. Pursuant to section 31, the Social Council may decide to
regulate the parents' access to the child if it is necessary in view
of the purposes of the prohibition on removal. Such decisions may,
under section 41, be appealed against to the administrative courts.

C. The Parental Code

68. Chapter 21 of the Parental Code deals with the enforcement
of judgments or decisions regarding custody and other related
matters.

69. Section 1 specifies that actions for the enforcement of
judgments or decisions by the ordinary courts concerning the custody
or surrender of children or access to them are to be instituted
before the County Administrative Court.

70. According to section 5, enforcement may not take place
against the will of a child who has reached the age of 12 unless the
County Administrative Court finds enforcement to be necessary in the
child's best interests.

71. Under section 7, if the child is staying with someone other
than the person entitled to custody, the child's custodian may, even
when no judgment or decision as described in section 1 exists, seek
from the County Administrative Court an order for the transfer of
the child to him. Such an order may be refused if the best
interests of the child require that the question of custody be
examined by the ordinary courts.

When taking decisions under this section, the County
Administrative Court shall also observe the requirements laid down
in section 5 (see paragraph 70 above).

PROCEEDINGS BEFORE THE COMMISSION

72. In their application of 23 October 1987 to the Commission
(no. 13441/87), Mr and Mrs Olsson alleged a series of violations of
Article 8 (art. 8) of the Convention on the ground, inter alia, that
the Swedish social welfare authorities had hindered their reunion
with Helena and Thomas and had prevented the applicants from having
access to them. They also complained of a number of breaches of
Article 6 (art. 6) and, in addition, invoked Articles 13 and 53
(art. 13, art. 53).

73. On 7 May 1990 the Commission declared the application
admissible.

In its report dated 17 April 1991 (Article 31) (art. 31),
the Commission expressed the opinion:

(a) unanimously, that there had been a violation of
Article 8 (art. 8) on the ground that the restrictions on
access were not "in accordance with the law";

(b) by seventeen votes to three, that there had been a
violation of Article 8 (art. 8) with regard to the
prohibition on removal;

(c) unanimously, that there had been a violation of
Article 6 para. 1 (art. 6-1) on the ground that the
applicants did not have access to court to challenge the
restrictions on access to the children;

(d) by fourteen votes to six, that there had been no
violation of Article 6 para. 1 (art. 6-1) as a result of the
duration of the proceedings concerning the termination of
the public care of Stefan, Helena and Thomas;

(e) by nineteen votes to one, that there had been no
violation of Article 6 para. 1 (art. 6-1) with regard to the
duration of the proceedings under Chapter 21 of the Parental
Code;

(f) by nineteen votes to one, that there had been no
violation of Article 6 para. 1 (art. 6-1) on the ground that
the Supreme Administrative Court did not hold a hearing on
the applicants' appeal concerning the prohibition on
removal;

(g) unanimously, that there had been no violation of
Article 6 para. 1 (art. 6-1) in relation to the first
appointment of a guardian ad litem;

(h) unanimously, that there had been no violation of
Article 6 para. 1 (art. 6-1) as a result of the duration of
the proceedings relating to the second appointment of a
guardian ad litem;

(i) unanimously, that it was not necessary to examine
whether there had been a violation of Article 13 (art. 13)
in respect of the restrictions on access;

(j) unanimously, that there had been no violation of
Article 13 (art. 13) in respect of the first appointment of
a guardian ad litem.

The full text of the Commission's opinion and the dissenting
opinion contained in the report is reproduced as an annex to the
present judgment*.

_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 250 of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

74. At the hearing on 22 April 1992, the Government confirmed
the final submission in their memorial admitting violations of the
Convention in that, for a certain period, the restrictions on access
decided by the Social Council were not "in accordance with the law"
and that the applicants had not had a court remedy in respect of
those restrictions. On the other hand, they invited the Court to
hold that there had been no violation of the Convention in the
present case other than those admitted by them.

AS TO THE LAW

I. SCOPE OF THE CASE BEFORE THE COURT

75. The present application of 23 October 1987, as declared
admissible by the Commission, raised a series of complaints as to
(1) the prohibition on removal, its maintenance in force and the
restrictions on the applicants' access to the children while the
prohibition was in force; (2) the length of certain specific
domestic proceedings and the lack of a hearing on appeal; and (3)
alleged violations of the right of access to a court or to an
effective remedy with respect to certain decisions (see the
Commission's decision on admissibility, under the heading
"Complaints", and paragraphs 95 and 176-185 of its report).

In their subsequent pleadings, the applicants appeared to
raise a number of further complaints relating to (a) the decision to
transfer custody of Helena and Thomas to their respective foster
parents (see paragraphs 53-54 above); (b) the independence and
impartiality of the courts which made or upheld this decision; and
(c) the total length of the national proceedings (which had started
in 1980 and were not yet terminated).

These new complaints were, however, not covered by the
Commission's decision on admissibility. It is true that, on certain
conditions, the rule that the scope of the Court's jurisdiction is
determined by the Commission's admissibility decision may be subject
to qualifications (see, inter alia, the Olsson I judgment, p. 28,
para. 56), but the complaints in question do not meet those
conditions. The Court therefore has no jurisdiction to entertain
them.

Accordingly, it will not go into the applicants'
circumstantial allegations before the Court to the effect that the
foster parents of Helena and Thomas were for various reasons
unsuited as carers. The Court presumes, as the Government evidently
did, that these allegations were made solely in support of the
complaints made by the applicants in respect of the transfer of
custody proceedings. The Court notes, however, that the allegations
were rejected after careful examination by the Court of Appeal for
Western Sweden in those proceedings (see paragraph 54 above).

II. ALLEGED VIOLATIONS OF ARTICLE 8 (art. 8) OF THE CONVENTION

A. Introduction

76. The applicants' complaints under Article 8 (art. 8) of the
Convention concerned the period from 18 June 1987, when the public
care of Helena and Thomas was terminated (see paragraph 10 above),
to 24 January 1991, when the custody of these children was
transferred to their respective foster parents (see paragraphs 53-54
above). The applicants contended that the prohibition on removal,
its maintenance in force and the restrictions on access had given
rise to breaches of Article 8 (art. 8) of the Convention, which
provides as follows:

"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.

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

The Government admitted that there had been a violation of
Article 8 (art. 8) in that until 1 July 1990 the restrictions on
access had no basis in domestic law, but otherwise contested the
applicants' allegations. The Commission reached a corresponding
conclusion with respect to the restrictions on access, but also
expressed the opinion that the maintenance in force of the
prohibition on removal, without any meaningful contact between the
applicants and their children being established and without any
other effective measure to resolve the existing problems,
constituted a violation of Article 8 (art. 8).

B. Was there an interference with the applicants' right to
respect for family life?

77. The prohibition on removal and its maintenance in force, as
well as the restrictions on access, clearly constituted, and this
was not disputed, interferences with the applicants' right to
respect for family life (see, amongst other authorities, the above-
mentioned Eriksson judgment, Series A no. 156, p. 24, para. 58).

Such interference entails a violation of Article 8 (art. 8)
unless it is "in accordance with the law", has an aim or aims that
is or are legitimate under Article 8 para. 2 (art. 8-2) and is
"necessary in a democratic society" for the aforesaid aim or aims
(ibid.).

C. Were the interferences justified?

1. "In accordance with the law"

78. In the applicants' submission, the measures taken by the
Swedish authorities had, contrary to Swedish law, been intended to
prevent them from being reunited with Helena and Thomas and from
having appropriate access to them. On the other hand, the
applicants did not seem to question the lawfulness of access
restrictions imposed after the entry into force of the 1990 Act on
1 July 1990 (see paragraph 67 above).

(a) Prohibition on removal

79. The Court observes that the prohibition on removal and its
maintenance in force were based until July 1990 on section 28 of the
Social Services Act 1980 and then on section 24 of the 1990 Act,
which replaced section 28. Furthermore, it does not appear from the
material before the Court that these measures were motivated by any
considerations other than those mentioned in the relevant
provisions, namely the protection of the children's health. There
is no evidence for the contention that they were taken in order to
prevent the reunion of Helena and Thomas with their parents.

Moreover, the measures had been upheld on appeals to, or
been renewed by, the administrative courts, albeit in some instances
subject to certain time-limits (see paragraphs 14-17, 22-23 and
25-27 above). In this connection, it is to be recalled that it is
primarily for the national authorities, notably the courts, to
interpret and apply domestic law (see, inter alia, the Margareta and
Roger Andersson v. Sweden judgment of 25 February 1992, Series A
no. 226-A, pp. 27-28, para. 82).

80. Having regard to the foregoing, the Court, like the
Commission and the Government, considers that the prohibition on
removal and its maintenance in force were "in accordance with the
law".

(b) Restrictions on access

81. On the other hand, according to an authoritative
interpretation of Swedish law by the Supreme Administrative Court in
the present case, the imposition of restrictions on access while a
prohibition on removal under the Social Services Act 1980 was in
force lacked any legal effect, as there was then no legal provision
on which such restrictions could be based (see paragraph 33 above
and the above-mentioned Eriksson judgment, Series A no. 156, p. 25,
para. 65). This situation lasted from 23 June 1987 to 1 July 1990,
when the 1990 Act entered into force. During this period, the
impugned restrictions - as conceded by the Government - were not "in
accordance with the law" for the purposes of Article 8 (art. 8).

82. There has accordingly been a violation of Article 8 (art. 8)
of the Convention in so far as concerns the restrictions on access
between 23 June 1987 and 1 July 1990.

2. Legitimate aim

83. According to the applicants, the aim of the contested
measures was to prevent their reunion with Helena and Thomas.
Moreover, they claimed that they had not been allowed to meet them
on their own because the social welfare authorities and the foster
parents had been afraid that the children might disclose information
about unsatisfactory living conditions in the foster homes.

84. However, as already stated above (see paragraph 79), there
is no evidence that the purpose of the prohibition on removal and
its maintenance in force was to hinder reunion; the Court shares the
view of the Commission and the Government that this measure was
aimed at protecting the children's "health" and "rights and
freedoms".

85. The Court considers that on this occasion it should examine
the aims of all the restrictions on access, irrespective of their
periods of application. It does not find it established that any of
them was aimed at preventing the family's reunion or the disclosure
of information of the kind indicated by the applicants. On the
contrary, it is convinced that they pursued the same legitimate aims
as the measures referred to in paragraph 84 above.

3. "Necessary in a democratic society"

86. According to the applicants, the interferences were not
"necessary in a democratic society". The Government contested this
allegation but the Commission accepted it.

87. In exercising its supervisory jurisdiction the Court must
determine whether the reasons given for the prohibition on removal,
its maintenance in force until the transfer of custody and the
restrictions on access which were in operation throughout this
period were "relevant and sufficient" in the light of the case as a
whole (see the Olsson I judgment, p. 32, para. 68). This
determination must start with the Social Council's decision of
23 June 1987 - immediately after the Supreme Administrative Court's
judgment of 18 June 1987 terminating the public care - to prohibit
removal of Helena and Thomas from their respective foster homes.

That decision - which was unanimously upheld, at three
levels, by administrative courts which had the benefit of reports
from child psychiatrists and a psychologist as well as from
specialised agencies was essentially based on the consideration that
separating the children from their foster homes would, in the
circumstances obtaining at the time, involve a serious risk of harm
to the children's physical and mental health (see paragraphs 12-17
above).

The prohibition on removal order must be evaluated against
the following background which appears from the file.

Helena and Thomas had been cared for in the foster homes for
a long period that had begun at the end of 1980, in fact for most of
their lives. Their contacts with their natural parents had been
very sparse indeed: they had not met their mother since 1984, they
had since seen their father only once and there had been no other
contacts with their parents. They had become strongly attached to
their respective foster families and environment, in which they had
developed in a positive and harmonious manner. Both children had
expressed a strong wish to remain in the foster homes, had shown
anxiety about the possibility of being forced to return to their
natural parents and had indicated that they would run away were they
to be so returned. Helena was in an important phase of her personal
development, which might be impaired if she were to be returned
against her own wishes. Thomas had suffered from certain childhood
disturbances and was still psychologically very vulnerable as well
as emotionally dependent upon his foster parents. Separating him
from the latter was likely to cause him considerable and
long-lasting psychological harm.

Against this background the reasons for ordering the
prohibition on removal were, in the Court's opinion, both relevant
and sufficient.

88. The prohibition on removal lasted until the transfer of
custody, that is, for a total of three and a half years (June 1987 -
January 1991). The original order was upheld in three sets of
proceedings and was twice renewed, in 1989 by the Social Council and
in 1990, under the 1990 Act, by the County Administrative Court.
The applicants appealed each time, but these appeals were
unanimously dismissed (see paragraphs 14-17 and 21-27 above).

In all of these decisions the national courts found that
there remained a serious risk that separating the children from
their foster homes would harm them; they pointed out in particular
that there had been insufficient preparatory contacts between them
and the applicants.

Given that the factors indicated in paragraph 87 above did
not essentially change during the period under review, the Court
finds that the reasons for the maintenance in force of the
prohibition on removal were in any case "relevant". Whether they
were also "sufficient" cannot be ascertained without inquiring why,
despite the fact that as early as the first set of proceedings
relating to the prohibition on removal the Swedish courts had time
and again stressed the crucial importance of adequate preparatory
contacts, these contacts remained insufficient during the whole
period. It is in this context that the restrictions on access have
to be assessed.

89. The restrictions on access which applied throughout this
period amounted to the following: while the applicants were free to
visit the children in their foster homes as often as they wished,
meetings outside those homes would be organised or allowed only
under such conditions as would dispel the children's apprehensions.

These restrictions - which were supported by opinions of two
psychiatrists and a psychologist (see paragraphs 40, 43 and 49
above) and, above all, were in accordance with the repeated wishes
of the children - were based on reasons similar to those underlying
the prohibition on removal. The authorities took the view that not
only the children's interests but also their rights under Article 8
(art. 8) of the Convention prevented the authorities from allowing
requests for access under conditions which were unacceptable to the
children.

In view of the situation which obtained, the Court finds
that the restrictions on access were based on reasons which were
"relevant" when it comes to ascertaining whether these restrictions
were "necessary in a democratic society". It remains to be seen
whether they also were "sufficient": for this purpose they must be
assessed in the context indicated at the end of paragraph 88 above.

90. In doing so, the Court notes firstly that, both under
Swedish law and under Article 8 (art. 8) of the Convention, the
lifting of the care order implied that the children should, in
principle, be reunited with their natural parents. In cases like
the present, Article 8 (art. 8) includes a right for the natural
parents to have measures taken with a view to their being reunited
with their children (see, as the most recent authority, the Rieme v.
Sweden judgment of 22 April 1992, Series A no. 226-B, p. 71,
para. 69) and an obligation for the national authorities to take
such measures.

However, neither the right of the parents nor its
counterpart, the obligation of the national authorities, is
absolute, since the reunion of natural parents with children who
have lived for some time in a foster family needs preparation. The
nature and extent of such preparation may depend on the
circumstances of each case, but it always requires the active and
understanding co-operation of all concerned. Whilst national
authorities must do their utmost to bring about such co-operation,
their possibilities of applying coercion in this respect are limited
since the interests as well as the rights and freedoms of all
concerned must be taken into account, notably the children's
interests and their rights under Article 8 (art. 8) of the
Convention. Where contacts with the natural parents would harm
those interests or interfere with those rights, it is for the
national authorities to strike a fair balance (see, mutatis
mutandis, the Powell and Rayner v. the United Kingdom judgment of
21 February 1990, Series A no. 172, p. 18, para. 41).

In sum, what will be decisive is whether the national
authorities have made such efforts to arrange the necessary
preparations for reunion as can reasonably be demanded under the
special circumstances of each case.

It is for the Court to review whether the national
authorities have fulfilled this obligation. In doing so, it will
leave room for a margin of appreciation, if only because it has to
base itself on the case-file, whereas the domestic authorities had
the benefit of direct contact with all those concerned.

91. In this connection the Court notes in the first place that
the judgments rendered by the Swedish courts during the period under
consideration contain some passages which might be understood as
criticising the social welfare authorities for deficiencies in the
making of appropriate preparations for reunion, but equally as
urging them not to let themselves be influenced by the antagonistic
course taken by the applicants and their counsel. However, the
judgments which were given afterwards, in the transfer of custody
proceedings, clearly take the view that the main responsibility for
the necessary preparations not having been made lay with the
applicants.

Indeed, the Swedish courts repeatedly stressed that in order
to arrange adequate preparatory contacts, good co-operation between
the social welfare authorities and the foster parents on the one
hand and the applicants on the other hand was essential.
Nevertheless, the applicants, although they knew that the access
restrictions corresponded to the children's wishes, refused to
accept them. They visited the children at the foster homes only
twice (see paragraph 29 above) and also neglected other possible
forms of contact, such as contact by telephone. Rather than follow
the course of co-operation recommended by the courts, the applicants
instead chose that of continuous hostility: again and again they
demanded access at their home without the foster parents' presence,
which, as they were well aware, was unacceptable not only to the
social welfare authorities but also to the children. In addition,
they responded to the failure to comply with their demands by
lodging complaints with the police and numerous appeals (see
paragraphs 32-34, 46 and 50-52 above).

The social welfare authorities, for their part, tried to
persuade the applicants to visit the children in their foster homes,
offering to make the necessary arrangements and reimburse their
travel costs and subsistence expenses. Furthermore, they organised
a meeting in Gothenburg and, after consultation with two experts,
drew up an access plan which cannot be said to have been unduly
restrictive and seems to have satisfied the exigencies of the
situation. Although this plan was rejected by the applicants, the
social welfare authorities tried, with partial success, to put it
into effect (see paragraphs 29 and 41 above).

In the light of the foregoing, the Court, having regard to
the margin of appreciation to be left to the national authorities,
has come to the conclusion that it has not been established that the
social welfare authorities failed to fulfil their obligation to take
measures with a view to the applicants being reunited with Helena
and Thomas.

Accordingly, the maintenance in force of the prohibition on
removal and the restrictions on access were based on reasons that
were not only "relevant" but also, in the circumstances,
"sufficient" (see paragraph 88 above).

92. The question whether the interferences with the applicants'
right to respect for family life were "necessary" must therefore be
answered in the affirmative. Consequently, their complaint under
Article 8 (art. 8) fails on this point.

III. ALLEGED VIOLATION OF ARTICLE 53 (art. 53) OF THE CONVENTION

93. The applicants complained that, despite the Court's Olsson I
judgment, the Swedish authorities had continued to prevent their
reunion with Helena and Thomas; the applicants had still not been
allowed to meet the children under circumstances which would have
enabled them to re-establish parent-child relationships. In their
view, Sweden had continued to act in breach of Article 8 (art. 8)
and had thereby failed to comply with its obligations under
Article 53 (art. 53) of the Convention, which reads as follows:

"The High Contracting Parties undertake to abide by the
decision of the Court in any case to which they are
parties."

This allegation was disputed by the Government, whereas the
Commission did not express an opinion on the matter.

By Resolution DH (88)18, adopted on 26 October 1988,
concerning the execution of the Olsson I judgment, the Committee of
Ministers, "having satisfied itself that the Government of Sweden
has paid to the applicants the sums provided for in the judgment",
declared that it had "exercised its functions under Article 54
(art. 54) of the Convention".

94. The Court further notes that the facts and circumstances
underlying the applicants' complaint under Article 53 (art. 53)
raised a new issue which was not determined by the Olsson I judgment
(p. 29, para. 57) and are essentially the same as those which were
considered above under Article 8 (art. 8), in respect of which no
violation was found (see paragraphs 87-92 above).

In these circumstances, no separate issue arises under
Article 53 (art. 53).

IV. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION

95. Mr and Mrs Olsson also complained of several violations of
Article 6 para. 1 (art. 6-1), which provides:

"In the determination of his civil rights and obligations
... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ..."

A. Judicial review of restrictions on access

96. The Government, like the Commission, accepted the
applicants' contention that there had been a violation of
Article 6 para. 1 (art. 6-1) on the ground that it was not possible
for them, until the entry into force of the 1990 Act on 1 July 1990,
to have the restrictions on their access to Helena and Thomas
reviewed by a court (see paragraphs 33, 34, 51, 62, 73 and 74
above).

97. For the reasons set out in the above-mentioned Eriksson
judgment (Series A no. 156, p. 29, paras. 80-81), the Court agrees.
Accordingly, there has been a violation of Article 6 para. 1
(art. 6-1) on this point.

B. Length of certain proceedings

98. The applicants alleged that the duration of several of the
domestic proceedings in their case had, contrary to Article 6
para. 1 (art. 6-1), exceeded a reasonable time.

The Government contested this allegation, which was rejected
by the Commission.

99. The reasonableness of the length of proceedings is to be
assessed in the light of the criteria laid down in the Court's case-
law, in particular the complexity of the case, the conduct of the
applicant and that of the relevant authorities. On the latter
point, what is at stake for the applicant in the litigation has to
be taken into account in certain cases (see, for instance, the X v.
France judgment of 31 March 1992, Series A no. 236, pp. 89-90,
para. 32).

1. The proceedings relating to one of the requests made
by the applicants for termination of the public care

100. The applicants maintained that the examination of one of
their requests for termination of the public care of Helena, Thomas
and Stefan (see paragraph 10 above) had not been concluded within a
"reasonable time".

101. The Court considers - and this was not in dispute before
it - that the starting-point for the relevant periods was
16 August 1984, when the applicants submitted their request to the
Social Council. The periods in question ran until 16 February 1987,
when the public care of Stefan was revoked by the Administrative
Court of Appeal, and 18 June 1987, when that of Helena and Thomas
was terminated by the Supreme Administrative Court, thus lasting
approximately two years and six months and two years and ten months,
respectively.

102. The proceedings concerning Stefan lasted approximately
thirteen months before the Social Council, four and a half months
before the County Administrative Court and twelve months before the
Administrative Court of Appeal; those in respect of Helena and
Thomas took approximately two and a half months before the Social
Council, eleven months before the County Administrative Court,
sixteen and a half months before the Administrative Court of Appeal
and four months before the Supreme Administrative Court.

The proceedings were of a complex nature, involving
difficult assessments and requiring extensive investigations.
Hearings were held before the County Administrative Court in the
case of Helena and Thomas and before the Administrative Court of
Appeal in the case of all three children.

103. There are only two instances in which it is questionable
whether the competent authorities proceeded with proper diligence.

Firstly, it took the Social Council thirteen months to
decide on the request concerning Stefan. However, the Government
explained that this had been due to certain investigations deemed to
be necessary and the Court accepts this argument.

Secondly, the Administrative Court of Appeal had initially
scheduled a hearing for 21 August 1986, but postponed it until
4 February 1987. Whilst indicating that they could not state with
any certainty the reasons for this delay, the Government drew
attention to the fact that, between 17 July and 20 November 1986,
the case-file had not been with the Administrative Court of Appeal,
but with the Supreme Administrative Court, which had had before it
another appeal by the applicants. However, this does not
sufficiently explain why the hearing was postponed for six months.
In view of the nature of the interests at stake, it was of great
importance, as the Commission also noted, that such matters be dealt
with swiftly.

Nevertheless, having regard to the complexity of the case,
the delay was not so long as to warrant the conclusion that the
total duration of the proceedings was excessive.

2. The proceedings relating to the applicants' request
under Chapter 21 of the Parental Code

104. Mr and Mrs Olsson further claimed that the proceedings
concerning their request to have Helena and Thomas returned to them,
in accordance with section 7 of Chapter 21 of the Parental Code (see
paragraph 18 above), had exceeded a reasonable time.

Both the Government and the Commission disagreed.

In their main submission the Government disputed the
applicability of Article 6 para. 1 (art. 6-1), on the ground that
the proceedings in issue had been concerned only with the
enforcement of existing rights and not with the determination of the
existence or the content of such rights.

The Court has come to a different conclusion. There is no
doubt that the outcome of the proceedings in issue affected, in a
decisive manner, the exercise by the applicants of an essential
aspect of their rights in respect of the custody of the children
(see, amongst many authorities, the Skärby v. Sweden judgment of
28 June 1990, Series A no. 180-B, p. 36, para. 27). Their
application to the County Administrative Court for the transfer of
the children thus gave rise to a "contestation" (dispute) over one
of their "civil rights" for the purposes of Article 6 para. 1
(art. 6-1). Consequently, this provision is applicable to the
proceedings in question.

105. As to whether the proceedings complied with the requirement
of reasonable time, the Court observes that they lasted for a period
of thirteen and a half months and comprised three levels of
jurisdiction. Like the Commission, it does not find this to be
excessive for the purposes of Article 6 para. 1 (art. 6-1).

3. The proceedings relating to the second appointment
of a guardian ad litem

106. The applicants further contended that the proceedings
concerning the second appointment of a guardian ad litem (see
paragraph 20 above) had exceeded a "reasonable time".

These proceedings lasted a little more than a year and
included three levels of jurisdiction. The Court agrees with the
Commission that they were concluded within a reasonable time.

4. Conclusion

107. There has accordingly been no breach of Article 6 para. 1
(art. 6-1) on the three above-mentioned points.

V. MISCELLANEOUS ALLEGATIONS OF VIOLATIONS OF ARTICLES 6 PARA.1
AND 13 (art. 6-1, art. 13)

108. Before the Commission the applicants submitted that, in the
first set of proceedings challenging the prohibition on removal,
there had been a breach of Article 6 para. 1 (art. 6-1), in that the
Supreme Administrative Court had refused to hold a hearing (see
paragraph 17 above). They also alleged that, contrary to this
provision, they had not been able to challenge the District Court's
first appointment, on 17 July 1987, of a guardian ad litem for
Helena and Thomas, since they had not been informed of this decision
(see paragraph 19 above). In addition, they complained that they
did not have an effective remedy within the meaning of Article 13
(art. 13) in respect of the restrictions on access and the decision
of 17 July 1987 to appoint a guardian ad litem.

These complaints, which in the Commission's opinion were
unfounded or did not need examination, were not mentioned by the
applicants before the Court, which does not consider it necessary to
examine them of its own motion.

VI. APPLICATION OF ARTICLE 50 (art. 50)

109. Mr and Mrs Olsson sought just satisfaction under Article 50
(art. 50), according to which:

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

A. Damage

110. Under this provision the applicants sought 5,000,000 Swedish
kronor for damage. In support of their claim they maintained, inter
alia, that, despite the Olsson I judgment, the Swedish authorities
had continued to deal with them in the same way. The compensation
awarded by the Court in that judgment had had no impact; a
significantly higher sum was therefore called for in the present
case.

The Government considered the claim to be "out of
proportion". They submitted that, should the Court uphold their
contentions on the merits, only a symbolic amount should be granted.

111. The present judgment has found only violations of Article 8
(art. 8), on account of the restrictions on the applicants' access
to Helena and Thomas imposed, for a certain period, without a proper
basis in Swedish law, and of Article 6 para. 1 (art. 6-1), owing to
the absence of a court remedy against the restrictions (see
paragraphs 81-82 and 97 above). The Court considers that the
applicants must, as a result, have suffered some non-pecuniary
damage which has not been compensated solely by the findings of
violation. Deciding on an equitable basis, it awards 50,000 Swedish
kronor to the applicants jointly under this head.

B. Legal fees and expenses

112. The applicants claimed reimbursement of fees and expenses,
totalling 1,286,000 Swedish kronor, in respect of the following
items:

(a) 1,269,000 kronor for 625 hours' work by their lawyer in
respect of the domestic and the Strasbourg proceedings and
for 80 hours for the preparation of her oral pleadings and
her appearance before the Court as well as for her journey
to Strasbourg (in each case at 1,800 kronor per hour);

(b) expenses relating to journeys by the lawyer to meet a former
foster daughter of the Larsson family in Northern Sweden
(7,000 kronor) and to attend a court hearing in Gävle
(2,000 kronor);

(c) 3,000 kronor in respect of a further journey to see the
applicants and an appearance before the District Court in
Alingsås as well as photocopying and telephone calls;

(d) 5,000 kronor to cover work by a translator checking the
manuscript of the lawyer's oral pleadings before the Court.

With regard to item (a), the Government submitted that costs
referable to the domestic proceedings did not warrant compensation
under Article 50 (art. 50); such costs could have been paid under
the Swedish legal aid scheme had the applicants applied for legal
aid. Furthermore, in their view, the way in which the lawyer for the
applicants conducted the proceedings before the Commission should be
taken into consideration. The Government questioned whether the
time which she claimed to have spent on the case was necessary and
considered the hourly rate charged too high.

Items (b) and (c), the Government pointed out, seemed to be
related, at least partly, to the domestic proceedings. They were
prepared to pay reasonable compensation for item (d).

113. As regards item (a), the Court notes that the applicants'
lawyer agreed to act on the basis that she would not ask for fees
under the Swedish legal aid scheme. Her clients have therefore
incurred liability to pay fees to her. Legal fees referable to
steps taken, in both the domestic and the Strasbourg proceedings,
with a view to preventing or obtaining redress for the matters found
by the Court to constitute violations of Articles 6 para. 1 and 8
(art. 6-1, art. 8) of the Convention, were necessarily incurred and
should be reimbursed in so far as they were reasonable (see, for
instance, the Olsson I judgment, Series A no. 130, p. 43,
para. 104).

Bearing in mind that the applicants have succeeded only on
the points mentioned in paragraph 111 above and making an assessment
on an equitable basis, the Court considers that the applicants
should be awarded under this head 50,000 kronor, from which must be
deducted the 6,900 French francs already received from the Council
of Europe in respect of legal costs.

114. Items (b) and (c) must be rejected as there is no evidence
that they were necessarily incurred. On the other hand, the Court
is satisfied that item (d) - translation costs - was necessarily
incurred and was reasonable as to quantum.

FOR THESE REASONS, THE COURT

1. Holds by six votes to three that there has been no violation
of Article 8 (art. 8) of the Convention in respect of the
prohibition on removal;

2. Holds unanimously that there has been a violation of
Article 8 (art. 8) on account of the restrictions on access
imposed between 23 June 1987 and 1 July 1990;

3. Holds by six votes to three that there has been no violation
of Article 8 (art. 8) on account of the restrictions on
access imposed after 1 July 1990;

4. Holds unanimously that there has been a violation of
Article 6 para. 1 (art. 6-1) in that no court remedy was
available to challenge the restrictions on access imposed
between 23 June 1987 and 1 July 1990;

5. Holds unanimously that there has been no violation of
Article 6 para. 1 (art. 6-1) as regards any of the other
points raised by the applicants before the Commission and
the Court;

6. Holds by seven votes to two that no separate issue arises
under Article 53 (art. 53);

7. Holds unanimously that it is not necessary to examine the
other complaints, under Articles 6 para. 1 and 13 (art. 6-1,
art. 13), which the applicants made before the Commission
but did not reiterate before the Court;

8. Holds unanimously that Sweden is to pay to the applicants
jointly, within three months, 50,000 (fifty thousand)
Swedish kronor for non-pecuniary damage, and, for legal fees
and expenses, 55,000 (fifty-five thousand) Swedish kronor
less 6,900 (six thousand nine hundred) French francs to be
converted into Swedish kronor at the rate applicable on the
date of delivery of the present judgment;

9. Dismisses unanimously the remainder of the claim for just
satisfaction.

Done in English and in French and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
27 November 1992.

Signed: Rolv RYSSDAL
President

Signed: Marc-André EISSEN
Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the partly
dissenting opinion of Mr Pettiti, joined by Mr Matscher and
Mr Russo, is annexed to this judgment.

Initialled: R.R.

Initialled: M.-A.E

PARTLY DISSENTING OPINION OF JUDGE PETTITI, JOINED BY
JUDGES MATSCHER* AND RUSSO

_______________
* Except as regards the penultimate paragraph on page 46.
_______________

(Translation)

I did not vote with the majority of the Chamber for the non-
violation of Article 8 (art. 8) of the European Convention on Human
Rights as regards the prohibition on removal and restrictions on
access (points 1 and 3 of the operative provisions). I consider, on
the contrary, that there has been a serious violation of that
Article (art. 8) in respect both of the prohibition on removal and
of the restrictions on access after 1 July 1990, on the same lines
as the findings in the Olsson I judgment (see particularly
paragraph 81 which set out the reasons for concluding that Sweden
had failed to comply with Article 8 in that case) (art. 8).

It appears clear that the social welfare officials did not
take all the steps that they should have done in the light of that
judgment with a view to promoting the exercise of the right of
access and the right to have the children to stay which would have
prepared the way for returning custody of the children to their
parents.

Where the child has been separated from his parents over a
long period (as was the case here and this was a situation for which
the social welfare authorities bore some responsibility in respect
of the period covered by the Olsson I judgment), flexible and
sensitive measures must be taken.

In order to put reflection on the Olsson II judgment more
clearly in context, it is helpful to recall the principal reasoning
of the Olsson I judgment (in which a violation was found by twelve
votes to three):

"82. There is nothing to suggest that the Swedish
authorities did not act in good faith in implementing the
care decision. However, this does not suffice to render a
measure 'necessary' in Convention terms ...: an objective
standard has to be applied in this connection. Examination
of the Government's arguments suggests that it was partly
administrative difficulties that prompted the authorities'
decisions; yet, in so fundamental an area as respect for
family life, such considerations cannot be allowed to play
more than a secondary role.

83. In conclusion, in the respects indicated above and
despite the applicants' unco-operative attitude ..., the
measures taken in implementation of the care decision were
not supported by 'sufficient' reasons justifying them as
proportionate to the legitimate aim pursued. They were
therefore, notwithstanding the domestic authorities' margin
of appreciation, not 'necessary in a domestic society'."

The Committee of Ministers confined itself to declaring that
the pecuniary awards made under Article 50 (art. 50) of the
Convention had been duly paid by the Government.

For all the periods considered, the authorities should have
taken steps to ensure: the psychological preparation of the children
and the progressive organisation repeated at least each month of
meetings, at first short ones, if necessary even in the presence of
a psychologist; these meetings could subsequently have been extended
to a day, a weekend, a part of the holidays, under different
conditions to those obtaining for the five series of meetings
referred to in the judgment. The aim would be to avoid a situation
in which the child, being conditioned by the foster family, adopted
a deliberately obstructive attitude to these visits, which evidently
posed a problem. It would also have been helpful to make a greater
effort to prepare the parents for the progressive stages, making
allowance for their frustration, for a degree of maladroit
resistance on their part as well as for the difficulties arising
from the need to travel because of the unfortunate choice of the
foster families in terms of the geographical location of their home.
The most important thing was to take account of the parents'
persistent efforts to secure the return of their children, despite
all the obstacles, which confirmed their parental attachment and
their legitimate and consistent claim. In my view, neither the
social welfare authorities nor the majority of the European Court
sitting as a Chamber gave sufficient weight to the strength and
extent of this attachment. From 23 June 1987 to 16 June 1989, there
were only five actual meetings (see paragraph 29 of the judgment),
and then no more during the relevant period.

It is true that since the Olsson I judgment these five
attempts at meetings have taken place; the results were
unsatisfactory but that could have been a temporary situation.

However, in view of the large number of misunderstandings
which had built up over the years, these attempts had no chance of
succeeding without an adequate psychological preparation of the
parties concerned. It is the duty of the social welfare
authorities, and this is one of the most elementary principles of
the methods of educative assistance practised in Europe, where this
type of conflict is frequent, to make specific arrangements.

It is impossible to overcome in a matter of a few hours
years of mutual incomprehension. Thousands of learned works by
judges, lawyers, doctors, psychiatrists or psychologists, have been
written on this subject. The technique of using neutral ground for
meetings and progressive contacts is common, under judicial
supervision. In any event it is always counterproductive for the
parents to have to meet their children on the home ground of the
foster family or in the latter's presence, because that often leads
to the failure of the attempt.

The social welfare authorities displayed what was almost
contempt both for the national courts and the European Court. It is
somewhat surprising that neither the courts nor the governmental
authorities managed to force the "imperialism" of the social
services to give ground.

At no time did the social welfare authorities take the least
account of the love for their children that the parents sought to
express, a love that was demonstrated by the years of struggle in
proceedings to seek to obtain the return of the children and the
respect of their most sacred rights.

Clearly, the Olsson parents' attitude was not always
helpful, particularly after 1989, and they must therefore bear a
part of the responsibility. Yet one must not forget their despair
after the repeated failures with which they met even after the
favourable decisions of the European Court and the national courts
(see paragraph 53 et seq. of the present judgment).

Adopting the tactics employed by their lawyers, which were
perhaps too extreme, they hardened their position, but legally they
had a number of valid reasons for doing so. In any case, the
authorities were under a duty to exert a positive influence, by
showing understanding and making repeated interventions, instead of
reinforcing the differences.

In this type of situation it is necessary to seek to
organise more and more meetings, to educate the children and the
parents, to defuse conflicts. It is unfair to give priority to the
obstinacy of the children and the foster families.

In the same connection, the long delays between each
proceedings or intervention made the situation worse, whereas in
other States and in other jurisdictions, hearings would have been
held at shorter intervals by means of an urgent procedure before a
children's judge. One is left with the impression that the
authorities were content to allow the intransigence of the parents
to strengthen the position of the social welfare authorities,
despite the fact that the latter had never disguised their
preference for the foster families, as if they sought to accord
greater weight to material comfort than to paternal and maternal
ties.

Viewed from the outside this attitude towards the parents
may seem somewhat "inhuman".

It is to be regretted that reference was not made to the
United Nations Convention on the Rights of the Child so as to permit
the intervention of the children assisted by their lawyers, who
could have played a useful role as mediators.

Whatever the case may be, the general and overall conduct of
the authorities was such that the parents are permanently separated
from their children, and this situation is now irreparable as a
result of the refusal to allow access, a right which is not even
refused to criminal parents in other countries. The Olsson parents
have been definitively cut off from any family relationship. It is
difficult to think of a more serious case of a violation of the
fundamental rights protected by Article 8 (art. 8).

As I voted for the violation of the prohibition on removal
and the restriction on access before and after 1990, I also consider
that the Court should have examined the case under Article 53
(art. 53) and analysed the decision of the Committee of Ministers in
the light of the European Court's judgment in the first Olsson case.

It is paradoxical that in the year of the implementation of
the United Nations Convention on the Rights of the Child, which
stresses the importance of parent-child relations, there should have
been such a failure in the application of Article 8 (art. 8) of the
European Convention.

**