ECHR  12963/87 Margareta and Roger Andersson v. Sweden – Dom 25/02/1992



Del 2

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C. Appeals

61. Decisions of the County Administrative Court that a child be
taken into care under the 1980 Act could have been the subject of an
appeal to the Administrative Court of Appeal and, with leave, to the
Supreme Administrative Court.

62. An appeal lay to the County Administrative Court (and then to
the Administrative Court of Appeal and, with leave, to the Supreme
Administrative Court) against:

(a) refusals by a Social Council to terminate care ordered
under the 1980 Act;

(b) decisions taken by a Social Council under the 1980 Act as
to where the care should commence; to move a child from a home where
he lives; regulating the right of access under section 16; and not
to disclose the child's whereabouts to the parent or the custodian
(section 20 of the 1980 Act).

63. The child was in principle a party to such proceedings, but
had to have attained the age of 15 in order to have the capacity to
conduct proceedings before the courts himself (processbehörighet).
Otherwise this capacity was vested with the child's legal guardian
(SOU 1987:7, pp. 66-70). Pursuant to section 19 of the 1980 Act, a
child below the age of 15 should have been heard if it could have
been useful for the investigation and it was not presumed to be
harmful to him or her.

64. An appeal to the Supreme Administrative Court is subject to
leave to appeal. Such leave is, pursuant to section 36 of the
Administrative Procedure Act 1971 (förvaltningsprocesslagen
1971:291), granted in the following circumstances:

"1. if review by the Supreme Administrative Court is of
importance in providing guidance on the interpretation of the
law; or

2. if there are special reasons which militate for such
review, such as the existence of a ground for reopening of
the proceedings or of a gross oversight or error which has
clearly affected the outcome of the case in the
administrative court of appeal."

D. New legislation

65. As of 1 July 1990 - and therefore after the facts of the
present case - the 1980 Act was replaced by a new Act containing
Special Provisions on the Care of Young Persons 1990 (lagen 1990:52
med särskilda bestämmelser om vård av unga - "the 1990 Act") which
entail certain amendments and additions to the 1980 Act.

66. The provisions of the 1990 Act corresponding to those of the
1980 Act mentioned above are essentially the same. However,
section 14 of the 1990 Act, which replaces section 16 (see
paragraph 54 above) of the 1980 Act, is worded as follows:

"The Social Council is responsible for accommodating as far
as possible the young person's needs of contact with his
parents or any person who has custody of him.

If it is necessary in order to achieve the purposes of care
measures taken under this Act, the Social Council may

1. decide how the right of access to the young person shall
be exercised by a parent or other person who has custody of
him, or

2. decide that the young person's place of residence may not
be disclosed to the parent or custodian.

The Social Council shall reconsider at least once every three
months whether such decision as referred to in the second
paragraph continues to be needed."

PROCEEDINGS BEFORE THE COMMISSION

67. In their application of 13 February 1987 to the Commission
(no. 12963/87), Margareta and Roger Andersson raised a number of
complaints relating to the taking of Roger into public care, the
maintenance in force of the care order, his placement in a foster
home and the restrictions imposed on their access to each other,
including communications by correspondence and telephone. They
alleged breaches of Article 8 (art. 8) of the Convention. They also
complained about the absence of an effective remedy within the
meaning of Article 13 (art. 13) with regard to the restrictions on
access. Roger, in addition, invoked Articles 2, 3, 4, 9 and 10
(art. 2, art. 3, art. 4, art. 9, art. 10) and claimed that, contrary
to Article 25 (art. 25) of the Convention, the exercise of his right
to petition to the Commission had been hindered.

68. On 10 October 1989 the Commission declared admissible the
complaints relating to the prohibition of access, including
communications by correspondence and telephone (Article 8) (art. 8)
and the absence of an effective remedy (Article 13) (art. 13), but
decided to take no action with respect to the complaints under
Article 25 (art. 25) and to declare all other complaints
inadmissible.

In its report adopted on 3 October 1990 (Article 31)
(art. 31), the Commission expressed the opinion that there had been
a violation of Article 8 (art. 8) (unanimously), but no violation of
Article 13 (art. 13) with regard to Margareta Andersson
(unanimously), or with regard to Roger Andersson (by ten votes to
two). 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*.

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* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume 226-A
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

69. At the hearing on 26 August 1991, the Government confirmed
the final submission in their memorial inviting the Court to find
"that there has been no violation of the Convention in the present
case".

AS TO THE LAW

I. SCOPE OF THE CASE

70. At the Court's hearing, the applicants raised a variety of
matters regarding inter alia the Swedish educational system, Roger's
school problems and the situation in the foster home. However, the
case, as delimited by the Commission's decision on admissibility,
concerns only their complaints against the restrictions on access to
each other, including communication by correspondence and telephone,
during the period from 6 August 1986 to 27 April 1988, and the
absence of an effective remedy in respect of those restrictions.

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

A. Introduction

71. Margareta and Roger Andersson alleged that the restrictions
on access, including restrictions on communication by correspondence
and telephone, 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 was
accepted by the Commission.

72. The mutual enjoyment by parent and child of each other's
company constitutes a fundamental element of family life, and the
natural family relationship is not terminated by reason of the fact
that the child is taken into public care (see, as the most recent
authority, the Eriksson v. Sweden judgment of 22 June 1989, Series A
no. 156, p. 24, para. 58). Moreover, telephone conversations between
family members are covered by the notions of "family life" and
"correspondence" within the meaning of Article 8 (art. 8) (see the
Klass and Others v. the Federal Republic of Germany judgment of
6 September 1978, Series A no. 28, p. 21, para. 41, and the Kruslin v.
France judgment of 24 April 1990, Series A no. 176-A, p. 20, para. 26).
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 and correspondence.

73. Such interferences constitute a violation of Article 8
(art. 8) unless they were "in accordance with the law", had an aim
or aims that is or are legitimate under Article 8 para. 2 (art. 8-2) and
were "necessary in a democratic society" for the aforesaid aim or
aims (see the above-mentioned Eriksson judgment, Series A no. 156,
p. 24, para. 58).

B. "In accordance with the law"

74. The applicants contended that the limitations placed on
access were not "in accordance with the law". The Government
contested this claim, whereas the Commission agreed in so far as it
concerned the restrictions imposed on telephone communications and
correspondence.

75. The Court recalls that the expression "in accordance with the
law", within the meaning of Article 8 para. 2 (art. 8-2), requires
firstly that the impugned measures should have a basis in domestic
law. It also refers to the quality of the law in question,
requiring that it be accessible to the persons concerned and
formulated with sufficient precision to enable them - 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. A law which confers a discretion is not in itself
inconsistent with this requirement, provided that the scope of the
discretion and the manner of its exercise are indicated with
sufficient clarity, having regard to the legitimate aim in question,
to give the individual adequate protection against arbitrary
interference (see, amongst many other authorities, the above-
mentioned Kruslin judgment, Series A no. 176-A, pp. 20-23, paras. 27, 29
and 30).

76. The dispute in the present case concerns the question whether
the limitations on access, including communication by telephone and
correspondence, had a basis in Swedish law and were foreseeable.

1. Limitations on meetings

77. The applicants pointed out that they had been authorised to
meet only a few times during the period between August 1986 and
May 1987 and that the social welfare authorities had been given too
wide a discretion in this respect which they had exercised
arbitrarily. Even after the Social Committee's decision of
14 May 1987 (see paragraph 38 above), it had been unclear when and
how meetings were to be arranged. They claimed that this amounted
to a total prohibition of access, which lasted for almost one year
and which was both contrary to Swedish law and unforeseeable.

78. The Court observes that, as stated in the social welfare
authorities' decisions of 6 and 21 August 1986, a prohibition of
access was to apply until further notice and until "suitable access
could be arranged without involving harm to the child" (see
paragraphs 16 and 19 above). The applicants were allowed to meet on
5 October 1986. Subsequent to this, several meetings were held
throughout the care period. Admittedly the meetings took place with
a certain irregularity and often after lengthy intervals. However,
this is at least partly attributable to Margareta Andersson's
unwillingness to accept the terms for meetings or to take part in
their planning as proposed by the social welfare authorities (see
paragraphs 20, 21 and 24 above). The Court therefore shares the
view of the Government and the Commission that a total prohibition
of access was only in force for a period of approximately two
months, from 6 August 1986, when the Assistant District Chief
decided to prohibit access, until 5 October 1986, when the first
meeting was held between the applicants (see paragraphs 16 and 20
above).

79. Although the wording of section 16(1) may suggest that the
Social Council was empowered to regulate, but not to prohibit,
access, it was clearly stated in the preparatory work to this
provision that a prohibition of access could, if required by the
circumstances, be imposed for a certain period or until further
notice (see paragraph 56 above). Moreover, it follows from
decisions of Swedish administrative courts that a temporary
prohibition of access could be based on section 16 (see
paragraphs 34, 58 and 59 above). Such a prohibition could,
according to this provision, be imposed only to the extent that it
was necessary in order to fulfil the object of the care measures.
Furthermore, as expressed in the relevant preparatory work,
limitations on access under section 16 should be applied
restrictively and the Social Council should as far as possible co-
operate with the parents and assist in maintaining contact between
them and the child (see paragraph 55 above).

2. Limitations on communication by telephone
and correspondence

80. According to both the applicants and the Commission, it was
not clear that the social welfare authorities were permitted under
Swedish law to extend a restriction on access to cover
communications by correspondence and telephone. They pointed out
that the rationale for regulating meetings was different from that
for limiting contacts by telephone or mail. Limitations of this
kind were not expressly provided for by section 16 of the 1980 Act
nor mentioned in the preparatory work to this section. There was no
support in the corresponding rules of the Parental Code for the view
that the expression rätt till umgänge, as understood in Swedish,
referred to contact by mail or telephone. Moreover, whilst
section 15 of the 1980 Act, which was not applicable in the present
case, expressly authorised scrutiny of correspondence, section 16
did not.

81. The Delegate of the Commission did not accept that any
specific conclusion could be drawn from the case-law cited to the
Court by the Government as to whether the limitations on
correspondence and telephone communication had a basis in Swedish
law. First, he recalled that the Supreme Administrative Court's
1971 judgment contained no reasons for its rejection of the appeal
in question; the issue of the legality of the restrictions was not
raised and the court did not even indicate upon which provision the
restrictions were based (see paragraph 58 above). Moreover, the
Supreme Administrative Court's refusals to grant leave to appeal in
the present case did not constitute a legal precedent and did not
contain any reasons (see paragraphs 36 and 41 above). With regard
to the two decisions of the Sundsvall Administrative Court of Appeal
(see paragraph 59 above) the Delegate considered that these were of
little importance as they had not been decided by the highest court
and had not been published. In addition, he referred to a third
decision in which the Sundsvall court in 1983 had relied on
section 11, as opposed to section 16, thereby indicating an
inconsistency in its practice. The limitations, therefore, did not
have a clear basis in Swedish law and were not foreseeable.

82. In the present case, the contested limitations on
communications by correspondence and telephone had on two separate
occasions been upheld by the Administrative Court of Appeal under
section 16 of the 1980 Act. On each occasion, the Supreme
Administrative Court had subsequently refused leave to appeal (see
paragraphs 36, 41 and 64 above).

Furthermore, as appears from its public files, in doing so it
had taken into account its above-mentioned 1971 judgment. By that
judgment, the court rejected an appeal concerning a one-year
prohibition of access and telephone communications between a parent
and a child, after having examined the case on the merits. It
cannot be assumed that in the present case the Supreme
Administrative Court failed to consider whether the prohibition was
lawful. Clearly, that court accepted the lower court's reasoning
and conclusions (see paragraph 58 above).

The cases referred to by the Government, other than the
present instance, all concerned restrictions on access including
telephone communications (see paragraphs 58-59 above). None of
these decisions had set aside such restrictions as being unlawful.
It is true that only some of them pre-dated the judgments in the
instant case but those which followed are in principle capable of
illustrating the previous understanding of the law. All appellate
administrative courts' judgments are computerised in Sweden since
1972 (see paragraph 60 above).

In this regard, it is primarily for the national authorities,
notably the courts, to interpret and apply domestic law (see,
amongst many authorities, the above-mentioned Kruslin judgment,
Series A no. 176-A, pp. 21-22, para. 29).

83. In its report, the Commission further considered that the
"uncertainty" as to the contents of the law was combined with a lack
of clarity as to the scope of the social welfare authorities'
decisions of 6 and 21 August 1986 to prohibit access under
section 16, as these did not specify that the prohibition covered
telephone communications and correspondence (see paragraphs 16 and
19 above). In their view, this lack of clarity persisted during the
subsequent court proceedings, firstly because the County
Administrative Court's judgment had referred to telephone
conversations but had not mentioned correspondence and, secondly,
because this court and the Administrative Court of Appeal had
interpreted the legal situation differently, the former having
relied on section 11, the latter on section 16 (see paragraphs 34-35
above). In the submission of the Delegate, a decision restricting
fundamental rights should, as a minimum requirement, indicate
clearly the extent of the restriction.

84. The Court observes that, in this respect, it should not be
overlooked that the Social Committee's decision of 21 August 1986
was based on the social welfare officer's report of 15 August 1986
(see paragraph 17 above). This report recommended that Margareta
Andersson should be temporarily prevented from having "any form of
contact with Roger". There is little doubt, therefore, that the
prohibition imposed under section 16 was meant to cover not only
visits, but also communications by telephone and correspondence.
This is confirmed by the Social Council's submissions before the
County Administrative Court at its hearing on 11 September 1986 and
by the very words of the Administrative Court of Appeal's judgment
of 11 November 1986 (see paragraphs 34-35 above).

85. In sum, the contested limitations on access, including
communication by telephone and correspondence, were "in accordance
with the law" within the meaning of Article 8 para. 2 (art. 8-2).

C. Legitimate aim

86. The applicants claimed that the restrictions were not aimed
at finding a solution to Roger's school problems or at protecting
his health, but rather at preventing him from telling others about
the "terrible" living conditions in the foster home.

87. In the Court's view, the relevant Swedish law was clearly
aimed at protecting "health or morals" and "the rights and freedoms"
of children. There is nothing to suggest that it was applied for
any other purpose in the present case.

D. "Necessary in a democratic society"

88. The applicants alleged that the measures at issue could not
be regarded as "necessary in a democratic society". They argued
that they had not been allowed to meet often enough and that the few
meetings which were held had been supervised in a manner which
prevented them from enjoying any form of "family life". For the
same reason they criticised the limitations imposed on their right
to communicate with each other by way of telephone and
correspondence. A number of letters addressed to Roger by his
mother had been stopped by hospital personnel and the foster father.
The latter had moreover prevented him from sending letters to his
mother and from using the telephone. These measures, the applicants
contended, had not only been unnecessary for the purposes of Roger's
care but had, in fact, endangered his health. They had resulted in
his having to wait for two months before receiving medical treatment
for his diabetes. Further, as concluded by Dr Åberg in a medical
opinion submitted by the applicants, it was likely that the
emotional stress which Roger had suffered as a result of being
totally separated from his mother had contributed in a tangible and
even decisive way to his falling ill with diabetes.

89. In the Government's submission, the measures were "necessary
in a democratic society".

They relied on the reasons expounded in the above-mentioned
report of 15 August 1986 - which was the basis for the decision of
21 August 1986 to prohibit access - and on the relevant
administrative courts' judgments upholding the measures (see
paragraphs 17, 34-36, 39-41 and 44 above). They also referred to
the reasons for the prohibition of access of June 1985 (see
paragraphs 10-11 above). In addition, the measures fell to be
examined in the light of the justifications for the care order and
its maintenance in force throughout the period in question, since
the Commission had accepted the compatibility of that order with the
Convention and all the subsequent administrative and judicial
decisions concerning the prohibition of access were based
essentially on the same facts (see paragraphs 12, 15, 65 and 66
above).

As a justification for the stopping of letters, they argued
in particular that Margareta Andersson's attitude to the public care
of Roger and the foster home could obstruct the objective of the
care measures, including the efforts to create a trustful
relationship between him and the foster family, since her way of
explaining the situation to Roger worried and upset him. As a
12 year-old, he had no possibility of understanding on whom he could
rely in such a situation.

With regard to the applicants' contention that the measures
in issue had played a role in Roger's falling ill with diabetes, the
Government invoked a medical opinion by the National Board of Health
and Welfare. This concluded that emotional stress may be one out of
many contributing factors to the development of insulin-dependent
diabetes; however the quantitative significance of such stress had
been greatly exaggerated in the medical opinion submitted by the
applicants.

90. The Commission did not express any opinion on the "necessity"
issue, in view of its conclusion that the restrictions on
communication by correspondence and telephone were not "in
accordance with the law".

91. The Court recalls that in cases like the present a parent's
and child's right to respect for family life under Article 8
(art. 8) includes a right to the taking of measures with a view to
their being reunited (see the Olsson v. Sweden judgment of
24 March 1988, Series A no. 130, pp. 36-37, para. 81, and the
above-mentioned Eriksson judgment, Series A no. 156, pp. 26-27,
para. 71).

92. Prior to their decisions of 6 and 21 August 1986 to prohibit
access, the social welfare authorities had failed in their efforts
to implement the care measures both within and outside
Margareta Andersson's home. Shortly after being placed in the
Clinic in June 1985, Roger had escaped with the assistance of his
mother. The social welfare authorities had then consented to
implement the care measures in her home. However, since this had
proved unsuccessful, Roger had been returned to the Clinic with a
view to placement in a foster home. Again with his mother's
involvement, he escaped to join her. The police had brought him
back to the Clinic where he spent a brief period before being
transferred to the foster home. Moreover, it should be noted that
Margareta Andersson had indicated to the social welfare authorities
her intention of moving to an unknown address or of leaving the
country in order to avoid being "persecuted". She had also exerted
a negative influence on Roger during her visits to the Clinic (see
paragraphs 13, 14 and 17 above).

93. The prohibition of access was, as stated in the decisions of
6 and 21 August 1986, to be effected temporarily until access could
be arranged without harm to Roger. Relatively soon, at the latest
on 11 September 1986 (see paragraph 34 above), the Social Council
announced its intention to hold a meeting between the applicants at
the end of September or the beginning of October. In fact it took
place on 5 October. After this meeting Roger attempted to run away
from the foster home.

It is true that subsequent meetings were held with some
irregularity and often at rather long intervals, but this was partly
due to Margareta Andersson's own attitude. It is also true that the
meetings were closely supervised. However, as from June 1987, the
conditions for meetings were somewhat relaxed in this respect and,
in November that year, Roger was permitted to visit Margareta
Andersson in her own home. The Social Committee decided in February
1988 to arrange such visits on a monthly basis and to organise other
meetings in between at the Helgesson home - at least twice a month,
according to a court ruling of 17 February. Since Roger was
hospitalised, they met instead at the hospital where Margareta
Andersson was permitted to stay overnight. She stayed there for
approximately two weeks altogether during the period between
26 February and 3 May 1988 (see paragraphs 20-27 above).

94. Admittedly, the deterioration of Roger's health must, at
least to some extent, have been related to emotional stress.
However, it has not been established that the deterioration was
caused by the various limitations on access.

95. In the circumstances of the case the restrictions on meetings
between the applicants should however be considered in the broader
context of the restrictions on access as a whole. Indeed, besides
the fact that the applicants' right to visits was severely
restricted, they were also prohibited from having any contact by
mail or telephone during the period from 6 August 1986 to
5 February 1988. As of the latter date, the prohibition was
revoked, except that it was for Roger to take the initiative of
telephone communications. In the Court's view the measures relating
to this period were particularly far-reaching. They had to be
supported by strong reasons and to be consistent with the ultimate
aim of reuniting the Andersson family, in order to be justified
under Article 8 para. 2 (art. 8-2).

96. The reasons adduced by the Government are of a general nature
and do not specifically address the necessity of prohibiting contact
by correspondence and telephone. The Court does not doubt that
these reasons were relevant. However, they do not sufficiently show
that it was necessary to deprive the applicants of almost every
means of maintaining contact with each other for a period of
approximately one and a half years. Indeed, it is questionable
whether the measures were compatible with the aim of reuniting the
applicants.

97. Having regard to all the circumstances of the case, the Court
considers that the aggregate of the restrictions imposed by the
social welfare authorities on meetings and communications by
correspondence and telephone between the applicants was
disproportionate to the legitimate aims pursued and, therefore, not
"necessary in a democratic society". There has accordingly been a
breach of Article 8 (art. 8).

III. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)

98. Article 13 (art. 13) of the Convention reads as follows:

"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."

Before the Commission, both Margareta and Roger Andersson
submitted that, in breach of this provision, they had no effective
remedy in respect of their claims under Article 8 (art. 8). The
Government contested this view, which the Commission rejected.

99. At the hearing before the Court on 26 August 1991, counsel
for the applicants did not pursue the claim under Article 13
(art. 13) in respect of Margareta Andersson. The Court finds that
it is not necessary to examine this part of the complaint.

100. The lawyer of the applicants submitted that she subscribed to
the opinion of the minority of the Commission concluding that there
was a breach in respect of Roger Andersson.

101. The dispute before the Court thus concerns whether Roger's
legal guardian, Margareta Andersson, had been prevented from
appealing to the Swedish courts on his behalf. It was common ground
that Article 13 (art. 13) did not require that a 12 year-old child
be able to institute and conduct such proceedings on his own; it was
sufficient for the purposes of this provision that a legal
representative was able to do so on the child's behalf. It is not
in dispute that this was possible under Swedish law and that the
official counsel appointed to assist Roger in proceedings concerning
the care measures (see paragraphs 39, 40 and 44 above) had no power
to initiate court proceedings on his behalf.

102. The applicants considered that since Margareta Andersson had
no means of communicating with Roger, she was not in a position to
learn of any possible infringement of his human rights and was
therefore prevented from representing him properly.

103. The Court is not convinced by this argument. It should be
recalled that during the relevant period Roger and his mother met on
a number of occasions (see paragraphs 20-27 above) and were on good
terms. Consequently, it cannot be said that Margareta Andersson was
prevented from appealing on Roger's behalf against the restrictions
on access.

104. There was therefore no violation of Article 13 (art. 13).

IV. APPLICATION OF ARTICLE 50 (art. 50)

105. Article 50 (art. 50) of the Convention reads:

"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

106. Under this provision Margareta and Roger Andersson sought
first 1,000,000 and 2,000,000 Swedish kronor, respectively. At the
hearing their representative explained that Margareta Andersson's
claim was based on the distress which she had experienced as a
result of her separation from Roger and the restrictions on
contacting him; the main ground for Roger's claim was that he had
contracted diabetes as a consequence of stress caused by the
measures in issue (see paragraph 88 above).

Both the Government and the Delegate of the Commission found
the claims excessive.

107. In the Court's view, as mentioned above, the evidence
submitted does not warrant the conclusion that Roger's illness
resulted from the various restrictions on access (see paragraph 94
above). However, there can be no doubt that the measures found to
be in breach of Article 8 (art. 8) caused the applicants
considerable anxiety and distress.

This being so, the Court awards, on an equitable basis, as
required by Article 50 (art. 50), each applicant the sum of
50,000 kronor.

B. Legal fees and expenses

108. The applicants' original claim for legal fees and expenses,
totalling 325,000 Swedish kronor, included the following items:

(a) 319,800 kronor for 206 hours' work by their lawyer
(at 1,300 kronor per hour) in the proceedings before the Commission
and the Court and for 40 hours' travel - "loss of working time" -
(at the same rate) to appear at two hearings in Strasbourg;

(b) 5,200 kronor to cover the work of a translator checking the
English of their lawyer's oral pleadings before the Court.

However, the applicants' lawyer stated at the hearing that
she had underestimated the time spent on preparing her pleadings
before the Court; the effective working time had in fact been
250 hours. She maintained, nevertheless, that her fees would be
325,000 Swedish kronor.

109. The Government accepted item (b) but made several objections
concerning item (a). They questioned whether the amount of working
time spent was necessary. The hourly rate charged was too high and
should be lower for travelling time than working time. Regard
should also be had to the fact that substantial parts of the
applicants' claims had been declared inadmissible by the Commission.

110. Taking account of the Court's case-law in this field as well
as the relevant legal aid payments made by the Council of Europe,
and making an assessment on an equitable basis, the Court considers
that the applicants are jointly entitled to be reimbursed, for legal
fees and expenses, the sum of 125,000 Swedish kronor.

FOR THESE REASONS, THE COURT

1. Holds by eight votes to one that there has been a violation
of Article 8 (art. 8);

2. Holds unanimously that it is not necessary to examine the
complaints under Article 13 (art. 13) with regard to
Margareta Andersson;

3. Holds by five votes to four that there has been no violation
of Article 13 (art. 13) with regard to Roger Andersson;

4. Holds unanimously that Sweden is to pay, within three months:

- to each of the applicants 50,000 (fifty thousand) Swedish
kronor for non-pecuniary damage;

- to the applicants jointly 125,000 (one hundred and
twenty-five thousand) Swedish kronor for legal fees and
expenses;

5. 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
25 February 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 following
separate opinions are annexed to this judgment:

(a) partly dissenting opinion of Mr Lagergren;

(b) partly dissenting opinion of Mr De Meyer, joined by
Mr Pinheiro Farinha, Mr Pettiti and Mr Spielmann.

Initialled: R.R.

Initialled: M.A.E.

PARTLY DISSENTING OPINION OF JUDGE LAGERGREN

Whilst otherwise agreeing with the majority of the Court, I
am unable to share its opinion that the temporary restrictions on
access, including telephone communication and correspondence, were
in violation of Article 8 (art. 8).

The difference of opinion separating me from my colleagues
concerns the necessity of the interferences in question and the
margin of appreciation which in this context is to be allowed to the
national authorities.

Judge Macdonald has stated: "The margin of appreciation is at
the heart of virtually all major cases that come before the Court,
whether the judgments refer to it expressly or not." (Ronald St.
John Macdonald: "The margin of appreciation in the jurisprudence of
the European Court of Human Rights", Essays in Honour of Roberto
Ago, III, 1987, at p. 208.)

A decade ago Sir Humphrey Waldock similarly stressed the
significance of the doctrine of the margin of appreciation in his
often cited sentence, that this doctrine "is one of the more
important safeguards developed by the Commission and the Court to
reconcile the effective operation of the Convention with the
sovereign powers and responsibilities of governments in a
democracy." (Human Rights Law Journal 1980, at p. 9). This
endorsement by one of the great jurists of our time of judicial
self-restraint is certainly still valid in the present European
situation.

It is nowadays a well-established view within the Commission
and the Court that the primary responsibility for securing the
rights and freedoms enshrined in the Convention lies with the
individual Contracting States and "that it is in no way the Court's
task to take the place of the competent national courts but rather
to review under [the Convention] the decisions they [deliver] in the
exercise of their power of appreciation" (Handyside v. the United
Kingdom judgment of 7 December 1976, Series A no. 24, pp. 23-24,
para. 50). The Strasbourg institutions have also recognised that, in
principle, the domestic authorities are, by reason of their "direct
and continuous contact with the vital forces of their countries", in
a better position than the international judge to determine whether
the Convention rights or equivalent domestic legal norms have been
overstepped (see, ibid., para. 48).

The full implications of the available margin will be
difficult to draw until a larger and more coherent body of law
emerges. However, a basic formulation is to be found in the case of
Rasmussen v. Denmark: "The scope of the margin of appreciation will
vary according to the circumstances, the subject matter and its
background" (judgment of 28 November 1984, Series A no. 87, p. 15,
para. 40; cf. Macdonald, op. cit., at p. 206).

One crucial difficulty in the present case is the necessity
to make a delicate assessment related to a given moment and in a
national context of complex psychological factors and to arrive at
valid impressions of personalities and human relations. Another
difficulty is to balance conflicting private interests and public
obligations.

Since the rationale for the doctrine of margin of
appreciation is that national authorities are deemed to be in a
better position than the international judge to determine whether
interferences with defined human rights are "strictly required", it
is useful in this case to compare the proceedings before the Swedish
courts and the proceedings before the Strasbourg Court - in the
manner in which they actually occurred.

From the decision of the Chairman of the Social Committee
no. 1 of the Social Council at Växjö on 5 June 1985 until the last
decision maintaining the care order (the County Administrative
Court's judgment of 17 February 1988), the case of Margareta and
Roger Andersson, in a unique sequence of proceedings, came six times
before the County Administrative Court, three times before the
Administrative Court of Appeal and three times before the Supreme
Administrative Court. The representative of the Government stated
at the hearing before the Strasbourg Court that the decisions of the
Swedish courts were unanimous. Oral proceedings were regularly held
before the two instances of first and second degree. On most
occasions, Margareta Andersson was present and examined by the
County Administrative Court and the Administrative Court of Appeal.
She was assisted by counsel under the Legal Aid Act
(rättshjälpslagen), while Roger was represented by official counsel
(offentligt biträde). Social welfare officers represented the
Social Council. Two witnesses testified before the County
Administrative Court, which also heard as expert witness, in two
different proceedings, the Deputy Chief Doctor of the Children's and
Juveniles' Psychiatric Clinic at Växjö.

Margareta Andersson attended the short hearing before the
Strasbourg Court, but she remained silent. Thus, the Court did not
have the benefit of listening directly, as the "principle of
immediacy" requires, to statements by Margareta Andersson herself,
nor did the Court hear statements of social welfare officers or
testimony of witnesses.

In this respect, the representative of the Government stated
before the Court that if the facts upon which the judgments of the
national courts and the decisions of the social authorities were
based and the necessity of the interference were questioned, it was
the Government's view that witnesses should also testify before the
Strasbourg Court. Testimony by the social welfare officers and the
foster parents might be necessary in such a case. It would be a
very serious thing to disregard the decisions in question without
having access to such direct information.

In view of the procedural situation and with regard to the
nature and complexity of the factual issues to be decided in the
present case, the national authorities are, in my opinion, entitled
to a wide margin of appreciation. In this context, reference should
be made to the Brandstetter v. Austria judgment in which the Court
held: "According to [the Court's] case-law, it is, as a rule, for
the national courts to assess the evidence before them" (judgment of
28 August 1991, Series A no. 211, p. 23, para. 52). A similar approach
is to be found in the markt intern Verlag GmbH and Klaus Beermann
judgment: "... the European Court of Human Rights should not
substitute its own evaluation for that of the national courts in the
instant case, where those courts, on reasonable grounds, had
considered the restrictions to be necessary" (judgment of
20 November 1989, Series A no. 165, p. 21, para. 37).

The situation was different in the Olsson case, concerning,
inter alia, the implementation of care decisions in respect of the
three Olsson children. There the crucial point of fact was not
disputed, i.e. that Helena and Thomas were placed at a great
distance from their parents and from Stefan. From these facts the
Court concluded that the very placement of the children adversely
affected the possibility of contacts, in a manner inconsistent with
the ultimate aim of reuniting the Olsson family (Olsson v. Sweden
judgment of 24 March 1988, Series A no. 130, pp. 36-37, para. 81).

The representative of the Government stressed throughout the
Strasbourg proceedings that although the Swedish decisions imposed
prohibitions on access, including contact by telephone and
correspondence, such prohibitions were not as categorical as it may
appear. The social welfare authorities could always "allow visits
or other forms of contacts to the extent it [was] deemed possible
without risking the purpose of the care or without risking harm to
the child's welfare". (See, also, paragraph 44 of the judgment).

Specifically, as to the restrictions on communication by
correspondence and telephone, the following statements by the
representative of the Government before the Commission are of a
certain relevance: "Mrs Andersson always had the possibility of
talking to the foster parents and to the extra foster home and also
to Roger's teacher so as to keep herself informed about Roger's
health and development. She also made use of the possibility and
often talked to the foster parents, as well as the extra foster
parents ... To what extent it has been possible for Roger to
contact his mother by phone is not known for certain to the
Government" (verbatim record of hearing on 10 October 1989, p. 8;
see, also, paragraph 28 of the judgment). Indeed, the effect of the
restrictions on communications in this particular case are difficult
to measure, since there must have been several easy ways of avoiding
such restrictions.

Since the reasons for the care decisions and those for the
restrictions on access, including telephone communication and
correspondence, are to a great extent similar, it should not be
overlooked that the Commission declared the complaints related to
the care decisions inadmissible as being manifestly ill-founded (see
paragraph 90 of the judgment). On the merits of the case, the
Commission never reached any decision on the necessity of the
restrictions on access and on telephone communication and
correspondence.

In the light of the considerations set out above, and since
there is no reason to doubt that the Swedish courts exercised their
discretion carefully and in good faith and on the basis of an
adequate knowledge of the facts, I am not prepared to find that the
temporary restrictions on access, including telephone communication
and correspondence, imposed by the national authorities in their
privileged position, overstepped the limits of what might be deemed
necessary in a democratic society within the meaning of
Article 8 para. 2 (art. 8-2).

I therefore consider that no violation of the requirements of
Article 8 (art. 8) has been established.

PARTLY DISSENTING OPINION OF JUDGE DE MEYER, JOINED BY
JUDGES PINHEIRO FARINHA, PETITTI AND SPIELMANN

(Translation)

In our opinion, the present case gave rise to a breach of
Article 13 (art. 13) of the Convention in respect of Roger
Andersson.

As a result of the prohibition on the applicants from having
access to each other, the child's entitlement to be represented by
his mother could not be effectively used with a view to exercising
the right to a remedy guaranteed by this provision.