ECHR 13441/87 Olsson v. Sverige (2) - Dom 27/11/1992 (Del 1)


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



Del 1

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In the case of Olsson v. Sweden (no. 2)*,

The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court, as a Chamber composed of
the following judges:

Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr C. Russo,
Mr S.K. Martens,
Mrs E. Palm,
Mr A.N. Loizou,
Mr A.B. Baka,

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

Having deliberated in private on 24 April and
30 October 1992,

Delivers the following judgment, which was adopted on the
last-mentioned date:

_______________
Notes by the Registrar

* The case is numbered 74/1991/326/398. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating
applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________

PROCEDURE

1. The case was referred to the Court on 20 August 1991 by the
Government of the Kingdom of Sweden ("the Government"), within the
three-month period laid down in Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 13441/87) against Sweden lodged with the European
Commission of Human Rights ("the Commission") under Article 25
(art. 25) by two Swedish citizens, Mr Stig and Mrs Gun Olsson,
on 23 October 1987.

The object of the application was to obtain a decision as to
whether or not the facts of the case disclosed a breach by the
respondent State of its obligations under Article 8 (art. 8) of the
Convention.

2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated
that they wished to take part in the proceedings and designated the
lawyer who would represent them (Rule 30).

3. The Chamber to be constituted included ex officio
Mrs E. Palm, the elected judge of Swedish nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 28 September 1991 the President
drew by lot, in the presence of the Registrar, the names of the
seven other members, namely Mr F. Matscher, Mr L.-E. Pettiti,
Mr B. Walsh, Mr C. Russo, Mr S.K. Martens, Mr A.N. Loizou and
Mr A.B. Baka (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Government, the Delegate of the Commission and the
representative of the applicants on the organisation of the
procedure (Rules 37 para. 1 and 38).

In accordance with the orders made in consequence the
registry received, on 23 January 1992, the applicants' memorial and,
on 6 February, the Government's. On 6 April the Secretary to the
Commission informed the Registrar that the Delegate would submit his
observations at the hearing.

On 7 and 27 April the Commission filed a number of documents
which the Registrar had sought from it on the President's
instructions. These included some, but not all, of the documents
requested by the applicants.

5. A number of documents were filed by the applicants and by
the Government on various dates between 3 February and
15 April 1992.

6. As further directed by the President, the hearing took place
in public in the Human Rights Building, Strasbourg, on
22 April 1992. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr C.H. Ehrenkrona, Legal Adviser,
Ministry for Foreign Affairs, Agent,
Mrs I. Stenkula, Legal Adviser,
Ministry of Health and Social Affairs,
Mrs B. Larson, Former Chief District Officer,
Social Services in Gothenburg, Advisers;

(b) for the Commission

Mr Gaukur Jörundsson, Delegate;

(c) for the applicants

Mrs S. Westerberg, lawyer, Counsel,
Mrs B. Hellwig, Adviser.

The Court heard addresses by Mr Ehrenkrona for the
Government, by Mr Gaukur Jörundsson for the Commission and by
Mrs Westerberg for the applicants, as well as replies to questions
put by the Court and by its President.

AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

A. Introduction

7. The applicants, Mr Stig and Mrs Gun Olsson, who are husband
and wife, are Swedish citizens and live at Angered, near Gothenburg
in Sweden. There were three children of the marriage, namely
Stefan, Helena and Thomas, born in June 1971, December 1976 and
January 1979, respectively.

8. The present proceedings, which concern mainly Helena and
Thomas, are a sequel to the case which the Court decided in its
judgment of 24 March 1988, Series A no. 130 (hereinafter referred to
as "Olsson I"). That case concerned the period from
16 September 1980, when the applicants' three children were taken
into public care, to 18 June 1987, when the public care of Helena
and Thomas was terminated (see paragraph 10 below). The main issue
in that case was whether the decision to take the children into
care, the manner in which it had been implemented and the refusals
to terminate the care had given rise to violations of Article 8
(art. 8) of the Convention. In the context of the case now under
review it is of importance to note that with regard to this issue
the Court held that "the implementation of the care decision, but
not that decision itself or its maintenance in force, gave rise to a
breach of Article 8 (art. 8)" (Olsson I, p. 38, para. 84).

For the background to this case the Court refers in the
first place to Part I of Olsson I (pp. 9-19, paras. 8-32).

B. Proceedings relating to the applicants' requests for
termination of the public care order

9. A first request by the applicants for termination of the
public care order was dismissed by the Social District Council no. 6
in Gothenburg ("the Social Council") on 1 June 1982. The dismissal
was upheld by the County Administrative Court (länsrätten) on
17 November and by the Administrative Court of Appeal (kammarrätten)
in Gothenburg on 28 December 1982. The applicants applied
unsuccessfully for leave to appeal to the Supreme Administrative
Court (regeringsrätten).

A fresh request, submitted to the Social Council in the
autumn of 1983, was, according to the Government, rejected on
6 December 1983. Apparently, no appeal was lodged against this
decision.

10. A further request by the applicants for termination of the
public care, apparently lodged on 16 August 1984, was rejected by
the Social Council on 30 October 1984 as far as concerns Helena and
Thomas and, after further investigations, on 17 September 1985 as
regards Stefan. Appeals by the parents against these decisions were
dismissed by the County Administrative Court on 3 October 1985 and
3 February 1986, respectively, after it had obtained expert opinions
from Chief Doctors Per H. Jonsson and George Finney and from a
psychologist, Mr Göran Löthman, on 22 and 30 August 1985 and held a
hearing on 20 September 1985 in the former case.

The applicants thereupon appealed to the Administrative
Court of Appeal in Gothenburg, which joined the two cases. On
12 February 1986 the court decided to request an opinion from the
County Administrative Board (länsstyrelsen), which it received on
15 April 1986. A hearing was scheduled for 21 August 1986 but was
postponed until 4 February 1987. After the hearing, at which the
applicants gave evidence, the court, by judgment of
16 February 1987, directed that the public care of Stefan be
terminated and dismissed the appeal in so far as it concerned Helena
and Thomas.

Following an appeal by the parents, the Supreme
Administrative Court, by judgment of 18 June 1987, directed that the
public care of Helena and Thomas should terminate, there being no
sufficiently serious circumstances to warrant its continuation.

C. Prohibition on removal and related proceedings

1. Decision to prohibit removal and refusal to suspend
its implementation

11. In the above-mentioned proceedings, the Supreme
Administrative Court pointed out that the question to be determined
in deciding whether care should be discontinued pursuant to
section 5 of the 1980 Act (see the above-mentioned Olsson I
judgment, pp. 25-26, para. 49) was whether there was still a need
for care. The problems associated with the removal of a child from
a foster home and its possible detrimental effects on him and with
his reunion with his natural parents were matters to be considered
not under section 5 but in separate proceedings, namely an
examination under section 28 of the Social Services Act 1980
(socialtjänstlagen 1980: 620; see paragraph 57 below).

12. On 23 June 1987 the Social Council prohibited, pursuant to
section 28 of the Social Services Act, the applicants from removing
Helena and Thomas from their respective foster homes. This decision
referred, inter alia, to the two reports by Chief Doctors Jonsson
and Finney (see paragraph 10 above). The latter report noted that
Thomas was no longer depressive but still had traits of a childhood
disturbance, in the form of delayed development and anguish in
unfamiliar situations.

The Social Council's decision took account of the fact that
Helena and Thomas had not been under the care of the applicants for
a long time, that the contacts between the parents and the children
had been very sparse and that the children had become emotionally
attached to their respective foster families and environment.
Regard was also had to the fact that Thomas was showing signs of
greater stability, that Helena had expressed a wish not to move and
that increased demands had been placed upon the natural parents by
reason of Stefan's return to their home. There was a risk, which
was not of a minor nature, that if Helena and Thomas were to be
removed from their foster homes, their physical and mental health
would thereby be harmed.

13. On 25 June 1987 the County Administrative Court rejected a
request by the applicants for suspension (inhibition) of the
prohibition order. That decision was confirmed by the
Administrative Court of Appeal on 2 July 1987 and, on 17 August, the
Supreme Administrative Court refused leave to appeal.

2. First set of proceedings challenging the prohibition
on removal

14. In the meantime, shortly after the decision of 23 June 1987
to prohibit removal, the applicants had appealed against it to the
County Administrative Court. The court sought expert opinions from
Chief Doctors Jonsson and Finney. According to these opinions,
dated 14 July and 3 September 1987, the prohibition was in Helena's
and Thomas's best interests because:

(a) Helena had shown signs of anxiety at the prospect of being
forced to return to her biological parents. For instance,
on learning about the lifting of the public care order, she
had gone into hiding for two days; moreover, together with
Thomas, she had worked out escape plans in the event of a
return. Whilst deriving a feeling of support from her
foster parents and friends, she felt extremely uncertain,
critical and hesitant about her natural parents. Although
the latter had demanded her return, they had not, in her
view, indicated a willingness to form a relationship with
her and this confused her. Removing Helena from her foster
home against her own wishes would entail a substantial risk
to her mental well-being and also to her physical health if,
in desperation, she were to carry out her plan of escaping
from the applicants' home;

(b) Thomas had suffered from certain childhood disturbances and
had a retarded development. It was especially on the
emotional plane that he was handicapped; he was very
dependent upon his foster mother and was in a fragile phase
of his development. To remove Thomas would have devastating
effects on his mental development, both emotionally and
intellectually.

Further, the psychologist Löthman, also considered, in an
opinion supplied to the court on 3 September 1987, that remaining in
the foster home was in Thomas's best interests. Mr Löthman observed
that Thomas had developed in a positive manner, although he
continued to be psychologically vulnerable and to have great
emotional needs. His attachment to the foster family had clearly
been strong and positive; he had dismissed the idea, which gave rise
to fear and anxiety on his part, of returning to his natural
parents. In that event he intended to escape.

Both the Social Council and the guardian ad litem, Mr Åberg,
recommended that the appeal be rejected. The applicants did not ask
for a hearing and the court did not hold one. By judgment of
3 November 1987, it dismissed the appeal.

15. The applicants appealed to the Administrative Court of
Appeal, asking it to revoke the prohibition on removal or, in the
alternative, to limit the measure in time, at the most until
6 January 1988. Again they did not ask for a hearing; the Social
Council and the guardian ad litem recommended that the appeal be
dismissed. The court examined the case on the basis of the
case-file and, by judgment of 30 December 1987, rejected the appeal.

16. The applicants then proceeded with an appeal to the Supreme
Administrative Court, reiterating their request for revocation of
the prohibition on removal or, in the alternative, for limitation of
the measure in time, until 15 March 1988. On this occasion they
asked for an oral hearing.

Leave to appeal was granted on 4 February 1988. On the same
date the court requested the National Board of Health and Welfare
(socialstyrelsen - "the Board") and the Social Council to submit
their opinions on the case, which they did on 22 and 23 March 1988,
respectively.

Both opinions stressed the necessity of prohibiting removal
of the children. The Social Council intended, should the appeal be
dismissed, to ask for the custody of the children to be transferred
to their respective foster parents.

The Board, for its part, pointed out that, having regard to
the long duration of the placement of the children in foster homes
and to the limited contacts they had had, further contacts must be
arranged under such conditions as would make the children feel
secure and would recognise their attachment to and feelings of
security in the foster homes. Referring to the child psychiatrists'
and the psychologist's reports, the Board made mainly the same
observations as those mentioned above (see paragraphs 12 and 14).
It further noted, with regard to Thomas, that whilst it would take
time for a child of his character to build up confidence in adults,
his foster mother had succeeded in creating an environment in which
he could feel confident. With regard to Helena, the Board also
stated that she had reached a phase of puberty and emancipation, the
normal course of which might be disturbed if she were forced to
leave the foster home.

The Board further stressed that the relationship between the
natural parents and the children was of decisive importance for the
question of removal where, as in this case, the children had been
placed in foster homes for long periods of time. In order to bring
about a good relationship, co-operation between - on the one hand -
the applicants and - on the other hand - the social welfare
authorities and the foster parents was essential. It appeared from
the case-file that the applicants' lawyer had not sought to achieve
such co-operation, which was unfortunate for the children. It had
had the consequence that no such relationship had been established
between the children and their parents as would make it possible for
the children to move to their parents without there being a serious
risk of harm to the children. The Board recommended that the Social
Council examine the possibility of having the custody of the
children transferred to the foster parents.

17. The Supreme Administrative Court rejected the applicants'
request for a hearing. With regard to the merits, in a judgment of
30 May 1988 it dismissed their claim for revocation of the
prohibition on removal; it accepted, on the other hand, that the
measure should be limited in time and modified the decision under
appeal in such a way that the prohibition was to run until
30 June 1989. The judgment contained the following reasons:

"When section 28 ... is applied to this case a balance must
be struck between, on the one hand, respect for the
[applicants'] and their children's private and family life,
including the [applicants'] rights as guardians according to
the Parental Code, and, on the other hand, the need to
safeguard the children's health (see the third paragraph of
section 2 of Chapter 1 of the Instrument of Government
[regeringsformen] and sections 1 and 12 of the Social
Services Act; through these provisions the protection of
private and family life referred to in Article 8 (art. 8)
of the Convention ... can be ensured) ...

... When [public] care is terminated according to section 5
of the 1980 Act reunion should normally take place as soon
as possible [and] ... needs to be prepared in an active and
competent manner. Appropriate preparations should be made
immediately after the care has been terminated. This should
be done even if a prohibition under section 28 ... has been
issued ... . The character and the extent of the
preparations, as well as the time required for them, depend
on the circumstances in each case; one or more suitably
arranged and successful visits by the children to their
parents' home must always be required. The need for a
prohibition on removal of a more permanent nature can
normally only be assessed after appropriate preparations
have been made. It is the Social Council's responsibility
to arrange the ... preparations for reuniting parents and
children after the care has been terminated ... [This]
responsibility includes an obligation to try persistently to
make the parents and their lawyer participate, actively and
in the children's best interests, in the preparations. The
Social Council is not discharged from its responsibility by
the mere fact that [they], by appealing against the
Council's decisions or in other ways, show that they dislike
measures taken by the Council or its staff. According to
section 68 of the Social Services Act, the County
Administrative Board should assist the Council with advice
and ensure that the Council performs its tasks properly.

Pending the beginning and completion of appropriate
preparations for reunion of parents and children the
question of a more temporary prohibition on removal under
section 28 ... may also arise. Such a prohibition should be
seen as a temporary measure until the child can be separated
from the foster home without any risk of harm as mentioned
in that provision.

...

It appears from the examination of the present case that no
appropriate preparations have been made to reunite the
parents and the children. Instead, the time which has
elapsed since the Supreme Administrative Court decided to
terminate the public care seems to have been spent on
litigation.

The issue whether a prohibition on removal under section 28
... is needed in this case must therefore be examined
without taking account of the effect of preparations that
have been made. The Supreme Administrative Court's decision
should thus concern the kind of temporary prohibition on
removal that, according to what has been stated above, can
be issued pending more appropriate preparatory measures.

From the examination - above all the opinion given by the
Board and the medical certificates it quotes - it appears
clearly that for the time being, before any preparations
have been made, there is a risk which is not of a minor
nature that Helena's and Thomas's physical and mental health
would be harmed were they to be separated from their foster
homes. Accordingly, there are sufficient reasons for a
prohibition on removal under section 28 ...

As regards the duration of a prohibition on removal, the
Supreme Administrative Court has in a previous decision (see
Regeringsrättens Årsbok, RÅ 1984 2:78) stated inter alia the
following: if, when the prohibition is issued, it is already
possible to assess with sufficient certainty that there will
be no such risk after a specific date - when some measures
will have been taken or they will have had time to produce
effects -, the prohibition must run only until that date.
If, on the other hand, it is uncertain when the child could
be transferred to the parents without this involving a risk
which is not of a minor nature, the prohibition ought to
remain in force until further notice and the question of a
removal ought to be raised again at a later stage, when the
risk of harming the child's health can be better assessed.

An application of this rule to the present case would mean
that a prohibition on removal should remain in force until
further notice. However, the circumstances of this case are
different from those of the previous case, as no appropriate
preparations have been made to reunite the parents and the
children, owing to the serious conflict between the Social
Council, on the one hand, and the parents and their lawyer,
on the other. Furthermore it must be presumed in this case
that only a fixed time-limit might induce the parties
- without any further litigation - to co-operate in taking
appropriate preparatory steps in the children's interest.
If, within a certain time-limit, no such preparations have
been made or their result is unacceptable, the Social
Council may raise the question of a prolonged prohibition
based on the circumstances pertaining at that time.

Having regard to the foregoing, the Supreme Administrative
Court finds that the prohibition on removal should remain in
force until 30 June 1989.

The European Court of Human Rights has, in its judgment of
24 March 1988, found that Sweden violated Article 8 (art. 8)
of the Convention in one respect ... . This violation
concerned the implementation of the care decision and, inter
alia, the fact that the children were placed in foster homes
situated so far away from their parents. The issue in this
case is another, namely when and on what conditions the
children can be reunited with their parents in view of the
termination of the care by the Supreme Administrative Court
on 18 June 1987. A prohibition on removal ... is therefore
not in conflict with the judgment of 24 March 1988."

3. Request to return the children in accordance with
Chapter 21 of the Parental Code

18. A request made by the applicants on 10 August 1987 that
Helena and Thomas be returned to them in accordance with section 7
of Chapter 21 of the Parental Code (föräldrabalken; see paragraph 71
below) had been rejected by the County Administrative Court of
Gävleborg, after a hearing on 1 March 1988, by two separate
judgments of 15 March 1988. The court had found that there was a
not insignificant risk of harming the children's mental health by
separating them from the foster homes.

In a judgment of 11 July 1988 the Administrative Court of
Appeal dismissed the applicants' appeal. On 23 September 1988 the
Supreme Administrative Court refused them leave to appeal.

4. Appointments of a guardian ad litem

19. In connection with the above proceedings concerning the
prohibition on removal, the District Court (tingsrätten) of
Gothenburg, at the Social Council's request, had appointed
Mr Claes Åberg on 17 July 1987 as guardian ad litem for Helena and
Thomas (section 2 of Chapter 18 of the Parental Code). The
appointment had not been notified to the applicants, who had not
been heard on the matter; when their representative had learned
about it, on 4 August, the time-limit for appealing against it had
expired.

The applicants had asked the District Court to dismiss the
guardian ad litem. It had done so on 26 October, on the ground that
Mr Åberg, by having applied for legal aid on the children's behalf
to the County Administrative Court on 31 July, had accomplished the
task for which he had been appointed.

20. On 27 October 1987 the Social Council had again asked the
District Court to appoint Mr Åberg as guardian ad litem. On this
occasion the court had invited the applicants to state their views
before it took a decision. It had granted the request on
12 February 1988.

The applicants appealed to the Court of Appeal (hovrätten)
for Western Sweden, which dismissed the appeal on 23 August 1988.
On 8 November 1988 the Supreme Court (högsta domstolen) refused them
leave to appeal.

5. Second set of proceedings challenging the
prohibition on removal

21. On 28 September 1988 the applicants made a fresh request to
the Social Council to lift the prohibition on removal, invoking - as
a new circumstance - the Commission's opinion in the Eriksson v.
Sweden case (annexed to the Court's judgment of 22 June 1989,
Series A no. 156, pp. 38-55). The request was rejected.

22. In a judgment of 12 December 1988 the County Administrative
Court dismissed an appeal by the applicants against the Social
Council's decision. The court, referring to the reasoning in the
Supreme Administrative Court's judgment of 30 May 1988 (see
paragraph 17 above), pointed out that no appropriate preparatory
measures for reunion as mentioned therein had been taken. It
considered that there would still be a risk of harm to the children
if the prohibition on removal were lifted.

23. A further appeal by the applicants to the Administrative
Court of Appeal was rejected on 22 December 1988. It noted that
Mr Olsson had met the children on 11 and 12 October 1988 at their
respective foster homes and schools and that the children had
visited the applicants' home on 16 and 17 December, accompanied by
the foster parents. The court found, nevertheless, for the reasons
expressed in the County Administrative Court's judgment, that the
prohibition should be maintained.

Leave to appeal was refused by the Supreme Administrative
Court on 14 February 1989.

6. Renewal of prohibition on removal and
related proceedings

24. On 27 June 1989, a few days before the expiry of the
prohibition on removal, the Social Council decided to renew it until
further notice. Moreover, it refused a request by the applicants
that the children spend their summer holidays with them in Alingsås
and visit them every weekend, unaccompanied by the foster parents
(see paragraph 50 below).

25. On appeal, the County Administrative Court, by judgment of
4 September 1989, confirmed the prohibition on removal but decided
that it was to run only until 31 March 1990. The court again relied
on the reasoning in the Supreme Administrative Court's judgment of
30 May 1988 and noted, moreover, that few measures had been taken in
preparation for removal. It was highly unsatisfactory that, as long
as two years after the termination of the public care, the
conditions for executing that decision had not been fulfilled. The
court considered that reasons still existed for maintaining the
prohibition on removal and that, accordingly, the Swedish judiciary
and public authorities had failed in this respect. Even though the
applicants and their lawyer had not contributed to a desirable
extent to facilitating the children's reunion with their parents,
the main responsibility for doing this lay with the Social Council,
which, as stressed by the court, also had a duty to implement
judgments.

26. Both the applicants and the Social Council appealed to the
Administrative Court of Appeal; the applicants sought to have the
prohibition lifted, whereas the Social Council asked for it to be
maintained until further notice. By judgment of 23 January 1990 the
court confirmed the lower court's decision, but extended the time-
limit for the prohibition until 1 August 1990.

The applicants were refused leave to appeal by the Supreme
Administrative Court on 8 March 1990.

7. Further renewal of the prohibition on removal and
related proceedings

27. The Social Council asked the County Administrative Court, on
12 July 1990, to issue a new prohibition on removal, to be effective
until further notice. By judgment of 27 July 1990, the court
renewed the prohibition until 28 February 1991. It noted that no
preparatory measures with a view to reuniting the children and the
parents had been taken; such measures were necessary in view of the
atmosphere of hostility that existed between the parties to the
proceedings, which was detrimental to Helena and Thomas. There were
therefore good reasons to maintain the prohibition on removal. The
need for this measure was also shown by the fact that the question
of a transfer of the custody of the children to the foster parents
was scheduled for examination by the District Court in the autumn
(see paragraphs 53-54 below).

The applicants lodged an appeal against this judgment with
the Administrative Court of Appeal. They have apparently asked the
court to stay the proceedings pending the final outcome of those
concerning the transfer of custody.

D. The applicants' access to the children subsequent to the
entry into force of the prohibition on removal

28. Prior to the termination of the public care of Helena and
Thomas on 18 June 1987, the applicants' contacts with the children
had been sparse. Access had, since February 1983, been restricted
to one visit every third month in the foster homes. However, no
such visits occurred during the period from June 1984 until April
1987, when Mr Olsson and the elder son Stefan visited them (for
further details, see the above-mentioned Olsson I judgment,
pp. 15-16, paras. 21, 24-26). It does not appear that any formal
decision with regard to access was taken in connection with the
decision of 23 June 1987 to prohibit the applicants from removing
Helena and Thomas from the foster homes.

1. Particulars concerning the applicants' access to
Helena and Thomas

29. Since the prohibition on removal was imposed on
23 June 1987, the following meetings have taken place between the
applicants and Helena and Thomas:

(a) 22 July 1988: a meeting of a few hours in a park in
Gothenburg, the children being accompanied by one of the
foster parents;

(b) 11 and 12 October 1988: visits by Mr Olsson in the foster
homes;

(c) 16 and 17 December 1988: visits by the children, accompanied
by the foster mothers, in the applicants' home, the night
being spent in a hotel;

(d) 8 and 9 April 1989: visits by the applicants in the foster
homes;

(e) 16 and 17 June 1989: visits by the children, accompanied by
the foster mothers, in the applicants' home, the night being
spent in a hotel.

2. Access claims and related proceedings

30. Shortly after the decision of 23 June 1987 to prohibit
removal, the applicants, through their lawyer, asked the social
welfare authorities to arrange for Helena and Thomas to visit them
in their home in Gothenburg. By letter of 27 October 1987 from the
social welfare officer, they were advised that they should first
visit the children so that they could get to know them better and
prepare for a visit by the children in Gothenburg together with the
foster parents. Subject to prior consultation with the foster
parents, the applicants were free to decide on the further
arrangements for visits in the foster homes. Finally, the letter
indicated a possibility of refunding travel and subsistence expenses
incurred by the applicants in connection with their visits.

Throughout the autumn of 1987, there was an exchange of
letters between the applicants' lawyer and the social welfare
authorities - mainly the Chief District Officer - on the question of
access. Whilst the applicants insisted that the children visit them
without the foster parents, the Chief District Officer, referring to
the justifications for the prohibition on removal, maintained that
since Mrs Olsson had not met the children since 1984, both
applicants should first visit them in their respective foster home
environment. Moreover, in the event of a visit by the children in
the applicants' home, at least one of the foster parents should be
present.

31. On 18 December 1987 the Chairman of the Social Council
refused a request by the applicants to visit Helena and Thomas
without the foster parents being present. She found no reason to
amend the Chief District Officer's decision on the matter. On
21 December the Social Council was informed of the refusal; it
decided to take note of it but did not take any specific measures.

32. The applicants appealed against the Chairman's decision to
the County Administrative Court, asking it to confer on them a right
of access as requested. In a decision of 8 March 1988, the court
found that it was not possible to appeal, under section 73 of the
Social Services Act (see paragraph 60 below), against measures
prescribed by the Social Council as to the manner, time and place of
access and refused the appeal.

On 29 April 1988 the Administrative Court of Appeal upheld
that judgment, noting that the Chairman's decision had not been
taken under section 28 of that Act and did not fall into any other
category of measures which could be appealed against pursuant to
section 73.

33. The applicants then proceeded with an appeal to the Supreme
Administrative Court, alleging that the Chairman's decision of
18 December 1987 was unlawful and that the absence of a right of
appeal against it constituted a violation of Article 13 (art. 13)
of the Convention. The court granted leave to appeal and, in a
decision (beslut) of 18 July 1988, refused the appeal. It stated:

"Under section 16 of the [1980 Act] ..., a Social Council
may restrict the right of access in respect of children
taken into public care under this Act. As regards the right
of access to children while a prohibition on removal is in
force, no similar power has been vested in the Social
Council in the relevant legislation. As there is no legal
provision empowering the Social Council to restrict the
right of access while the prohibition on removal is in force
..., the instructions given by the Chairman of the Social
Council in order to limit the right of access have no legal
effect. Nor can any right of appeal be inferred from
general principles of administrative law or from the
European Convention on Human Rights."

34. On 15 August 1988 the applicants lodged a municipal appeal
(kommunalbesvär; see paragraph 63 below) with the Administrative
Court of Appeal against the Chairman's decision of 18 December 1987.
The court found that that decision could not form the object of a
municipal appeal and that, in so far as the appeal might be
considered as directed against the Social Council's failure to take
any specific measures when informed of the decision (see
paragraph 31 above), it was out of time. The appeal was thus
dismissed on 10 October 1988.

35. In the meantime, on 21 March and 11 April 1988, the social
welfare authorities had rejected requests by the applicants' lawyer
that Helena and Thomas be allowed to attend their grandmother's
funeral and a special burial ceremony and, in this connection, stay
for one night at the applicants' home. The social welfare
authorities had pointed, inter alia, to the fact that the children
hardly knew their grandmother and to the need to arrange contacts in
an environment in which the children could feel safe and confident.

36. In June and July 1988 the social welfare officer contacted
the applicants and arranged for talks involving Mr Olsson and the
foster parents, to plan the meeting which took place in Gothenburg
on 22 July 1988 (see paragraph 29 above). Mrs Olsson did not
participate in these preparations, as she insisted on having access
on her own terms. However, as suggested by the social welfare
officer, Helena's foster mother was invited to the applicants' home
after a preparatory meeting. On one occasion the officer asked
Mr Olsson for his and his wife's telephone number in order to
facilitate contacts, but he declined to give it.

After the meeting on 22 July 1988, Mr Olsson told the social
welfare authorities that he had been disappointed; he had felt that
he was being watched and controlled and Helena had called her foster
mother "mummy".

37. On 8 August 1988 the social welfare authorities dismissed a
request made by the applicants on 2 August that Helena and Thomas be
allowed to join them - on 5 August or at the latest on 8 August -
for the rest of the summer holidays, on the ground that meetings
should be arranged in such a way as not to jeopardise the children's
health and development.

38. On 11 August 1988 the applicants' lawyer demanded that the
children be permitted to visit them every weekend and school holiday
until 30 June 1989. At a meeting with two social welfare officers
on 17 August 1988, Mr Olsson showed understanding of the view that
such visits were not appropriate and stated that he would recommend
a "soft line" in the efforts to bring about suitable access. On his
suggestion, the next meetings were planned to take place in the
foster homes in October. On 18 August the Social Council rejected
the request of 11 August.

39. On 19 August 1988 the applicants' lawyer reiterated the
request for access at weekends. In reply, the social welfare
officer informed her of the discussion with Mr Olsson on 17 August
(see paragraph 38 above). A few days later, Mr Olsson told social
welfare officers that he was dissatisfied, on account of their
attempts to delay access as much as possible. They reminded him
that he had himself proposed that the next meeting with the children
should be in October. The meetings were held on 11 and
12 October 1988 (see paragraph 29 above). On this occasion the
social welfare authorities booked and paid for air tickets and hotel
rooms for two persons, but Mrs Olsson declined to go.

3. Access plan

40. On 7 December 1988 the Chief District Officer recommended an
access plan to the Social Council. The recommendation referred,
inter alia, to two expert opinions, one by Chief Doctor Jonsson and
another by Chief Doctor Finney and the psychologist, Mr Löthman,
dated 10 and 12 October 1988, dealing specifically with the question
of access. The former noted, with respect to Helena, that it was
important to place emphasis on her own wishes, to improve her
possibilities of knowing about her natural parents and to arrange
the access in a manner which would make it an everyday event; she
should meet the applicants together with the foster parents. The
latter opinion stressed, with regard to Thomas, that access should
be resumed only if he so wished to which end certain preparatory
measures aimed at motivating him should be made - and only if
meetings were attended by the foster parents. It was essential that
the natural parents and the foster parents co-operate in the child's
best interests.

The plan envisaged access as follows:

(a) on 16 and 17 December 1988: visit by the children,
accompanied by the foster mothers, in the applicants' home; if this
was successful:

(b) visit by the applicants in the foster homes over two days in
February 1989; if this went well:

(c) visit by the applicants to Thomas in his foster home and to
Helena, if she so wishes, in April 1989; again, if this went well:

(d) visit similar to that mentioned at (a), to be organised over
a few days in June 1989 with a possibility of letting the children
choose to spend the night at the applicants' home rather than at a
hotel, provided that the foster mother accompany them;

(e) in addition to the above, the applicants should be able to
arrange visits by agreement with the foster parents.

41. The applicants met Helena and Thomas as envisaged at (a)
and, on 20 December 1988, the Social Council adopted the plan. It
was communicated to the applicants and their lawyer for comments,
but they objected to it.

4. Further access claims

42. During 1989 and 1990 the applicants, through their lawyer,
continued to make a large number of requests for access; in
particular, they demanded that the children visit them during
weekends at their own home and without the foster parents being
present.

Several of these requests were refused by the social welfare
authorities for such reasons as the children being opposed to
visiting the parents and wishing to be visited by them instead
(letters of 27 September 1989 and 7 February 1990) or too short
notice having been given to organise the visits (letters of 28 March
and 13 September 1989) or indications by Mr Olsson that he would
give the children a certain period to reflect on the matter during
which he would not claim access (letter of 11 October 1989).

Moreover, the social welfare authorities dismissed on
21 April and 26 May 1989 requests that Helena and Thomas attend the
birthday celebrations of their grandfather and their brother Stefan.
In the former case, regard was had to the fact that Helena did not
wish to go and, in the latter case, to the fact that the date in
question was inconvenient, being the last day of the school year.

Furthermore, on 21 March 1989 the Social Council refused
access for the purposes of a medical examination, which the
applicants had requested in order to obtain a medical certificate to
be used in the proceedings before the Commission. The decision was
based on an opinion by the Board that further examination of the
children might be harmful to them and would be of no assistance in
those proceedings.

43. In a report of 30 May 1989 to the social welfare
authorities, Chief Doctor Finney recommended that access should
continue to some extent between the applicants and Thomas and should
be arranged in his foster home, not in the applicants' home. A
similar view was expressed by the psychologist, Mr Löthman, in his
report of the same date. According to a report of 13 June supplied
by Chief Doctor Jonsson to the social authorities, Helena found that
travelling to the applicants' home was a trying experience and
preferred being visited by them. In his view, contacts served to
fulfil her need to be kept informed about the applicants.

The Chief District Officer, in a report of 15 June 1989,
made the following assessment of the question of access. Having
regard to the fact that visits by the children in the applicants'
home would not only conflict with expert opinions but were also not
welcomed by the children, access arrangements should primarily
consist of the parents visiting the children in the foster homes.
However, should the children express an interest in visiting the
applicants, the social welfare authorities would assist in arranging
such contacts. In the light of these considerations, the Chief
District Officer adopted a plan for visits by the parents in August
and October 1989 and then by the children in December 1989. The
applicants were invited to contact the social welfare authorities on
the matter, but did not do so. The reason for this, as later
explained by Mr Olsson, was that on a previous occasion he had not
been received properly by the social welfare officer responsible for
their case.

44. By letter of 16 November 1989, the applicants again asked
for the children to be allowed to visit them every weekend; they
also sought permission, firstly, for themselves and their son Stefan
to visit the children in one of the foster homes without the foster
parents being present and, secondly, for their lawyer to meet Helena
and Thomas to inform them of the applicants' and Stefan's situation
and to explain to them why they had been taken into public care and
why the applicants did not wish to visit them in the foster homes in
the foster parents' presence.

The Head of the Social Service (socialförvaltningen) in
Gothenburg replied by letter of 20 November 1989 that the social
welfare officer would contact them as soon as possible with a view
to making a suitable arrangement for their next meeting with the
children.

45. On 21 November 1989 the social welfare authorities received
a letter from the applicants' lawyer reiterating the claims of
16 November. A further letter was received on 22 December,
requesting access to the children in one of the foster homes in the
absence of the foster parents. In reply to the latter, the social
welfare authorities informed the lawyer on 27 December that they
would contact the foster parents directly on the matter.

46. On 21 December 1989 the applicants had reported the officer
in charge of their case to the Public Prosecution Authority
(åklagarmyndigheten) of Gothenburg for misuse of power and asked for
her immediate arrest. The reason for this action was her failure to
comply with their request of 16 November 1989. On 30 January 1990
the Public Prosecution Authority discontinued the criminal
investigation, finding no indication that a criminal offence had
been committed.

47. In a letter dated 25 January 1990, the social welfare
authorities invited the applicants to talks in order to find a
solution to the problem of access but, by letter received on
1 February from the applicants' lawyer, they were advised that such
talks would serve no purpose.

48. In response to letters from the applicants' lawyer, dated
13 February and 2 March 1990 and mainly reiterating their requests
made in November and December 1989, the social welfare authorities,
by letter of 8 March, pointed out that they were not opposed to
meetings; they invited the applicants to contact the foster parents
to make arrangements, failing which the applicants would be
contacted by the latter.

49. On 14 May 1990 the applicants' lawyer demanded that the
children be left to be met by the parents at Gothenburg airport on
certain specified dates and, on 5 June, she requested that this be
arranged every weekend. In the meantime, on 17 May, the social
welfare authorities had replied that Thomas's foster mother would
write to them and had also asked the applicants to contact the
foster parents by telephone, as the former had a secret telephone
number. On 6 June the lawyer asked the Social Council to grant
- immediately after 1 July (the date of the entry into force of the
1990 Act; see paragraphs 64 and 67 below) - access every weekend at
the applicants' own home and in the absence of the foster parents.

In this connection, the Chief District Officer submitted to
the Social Council a report, dated 2 July 1990, making observations
similar to those in her report of 15 June 1989 (see paragraph 43
above) and recommending that the request be dismissed. The report
noted, inter alia, that since the meeting in June 1989, the children
had become strongly opposed to visiting their parents but were open
to being visited by them. The applicants' demands as to the forms
of access had had the effect of increasing the gap between them and
the children.

On 4 September 1990 the Social Council dismissed the
applicants' request for access every weekend at their own home,
finding that access should instead take place in the foster homes in
conformity with the children's wishes.

5. Further proceedings concerning access

50. The applicants' lawyer, in her capacity as a member of the
municipality of Gothenburg, filed two municipal appeals (see
paragraph 63 below) with the Administrative Court of Appeal: one was
against the Social Council's decision of 27 June 1989 (see
paragraph 24 above) in so far as it concerned access and the other
against its decision of 20 December 1988 adopting an access plan
(see paragraphs 40-41 above).

With regard to the first appeal, the court found, by
judgment of 8 January 1990, that the contested part of the Social
Council's decision of 27 June 1989 was unlawful and annulled it.

As to the second appeal, the court held, in another judgment
of the same date, that the adoption of the plan formed part of the
measures considered necessary by the Social Council in order to
permit removal of the children without there being any risk of harm
to them. The plan was not a formal decision on the applicants'
right of access, especially since it provided that they could visit
the children in accordance with the latter's wishes.

On 8 March and 27 December 1990, respectively, the Supreme
Administrative Court refused the applicants' lawyer leave to appeal
against the second judgment and the Social Council leave to appeal
against the first.

51. Moreover, on 28 July 1989 the applicants complained to the
Parliamentary Ombudsman (justitieombudsmannen) who, in an opinion of
2 May 1990, stated, inter alia, that it appeared from the
examination of the case that the Social Council had acted solely out
of consideration for the children. In view of this fact and of the
lacunae in the Social Services Act 1980 on the question of
regulation of access (see paragraph 62 below) - which had led to
legislative amendments in 1990 (see paragraphs 64 and 67 below) -,
she declared the matter closed.

52. The applicants also lodged an appeal with the County
Administrative Court against the Social Council's decision of
4 September 1990 (see paragraph 49 above). It was dismissed by
judgment of 12 December 1990. The court found that the applicants'
allegation that the foster parents had influenced the children
against their natural parents was not borne out by the
investigations in the case; on the contrary, they showed that the
children wished to meet their parents, albeit on their terms.
Moreover, the sort of access requested did not take the children's
interests into account and would not benefit them. There was
therefore no ground for allowing access during weekends, as
requested by the applicants. The court did not examine their claim
for access during school holidays as this had not been dealt with by
the Social Council.

The applicants further appealed to the Administrative Court
of Appeal. They appear to have asked the court to keep their appeal
in abeyance pending the outcome of the transfer of custody
proceedings (see paragraphs 53-54 below).

E. Transfer of custody

53. Although the present judgment is not concerned with the
question of transfer of custody, the decisions by the Swedish
authorities on the matter are described below in so far as they may
shed light on the case.

The Social Council decided on 31 October 1989 to institute
proceedings in the District Court of Alingsås for a transfer of the
custody of Helena and Thomas to their respective foster parents.
After holding a preliminary hearing on 27 February 1990, the court,
by judgment of 24 January 1991, transferred the custody. It ordered
that the applicants should each year receive three day-time visits
from the children at their home and be able to visit them at the
foster homes for three weekends.

54. The applicants appealed against the District Court's
judgment to the Court of Appeal for Western Sweden. The latter held
a hearing at which it took evidence from two welfare officers who
had been responsible for the case, the children's respective foster
parents, Chief Doctors Jonsson and Finney, as well as Helena and a
contact person (kontaktman) of hers within the social services. The
applicants maintained, inter alia, that the foster parents were
unsuited as custodians. In particular, they contended that they had
learned after the District Court judgment that Helena's foster
father, Mr Larsson, had been charged in 1986-87 with assault,
including sexual assault, and sexual exploitation of a minor, namely
another foster girl called "Birgitta". Mr Larsson had been
acquitted by Hudiksvall District Court due to lack of evidence.
However, he had stated during the police investigations that he had
acted in a manner which, according to the applicants, constituted
sexual assault, although it had not been covered by the charges.
The public prosecutor had appealed against the acquittal but had
subsequently withdrawn the appeal.

By judgment of 24 January 1992, the Court of Appeal upheld
the Alingsås District Court's judgment. It stated, inter alia,
that, having regard to Helena's and Thomas's age and degree of
maturity, great importance should be attached to their views about
the questions of custody and access. It was clear that they both
wanted to remain in their foster homes. Moreover, contacts between
the applicants and the children had been very infrequent, especially
in recent years. According to the applicants, they had been
prevented from exercising their right of access partly because they
had previously felt unwelcome and been badly treated by the foster
parents, and partly because the social welfare authorities had been
opposed to providing financial assistance for journeys to meet the
children. However, these allegations were refuted by the social
welfare officers and the foster parents. In the view of the Court
of Appeal, the absence of contacts was due rather to lack of desire
and initiative on the part of the applicants to visit the children.
In addition, the applicants had kept their telephone number secret.

The claim that the foster parents were unsuited as
custodians was mainly directed against Helena's foster father,
Mr Larsson. The court found that when giving evidence before it, he
had left an impression of reliability and honesty, despite the fact
that he must have been under pressure due to his wife's illness and
the manner in which he was questioned by the applicants' lawyer.
Further, the court observed that the conditions in the Larssons'
home had been examined carefully on a number of occasions during the
relevant period; Helena had good contacts with people in her
environment and had since recently had a contact person who had been
heard by the court; moreover, she had visited the applicants on her
own in March 1991: on no occasion had she said that she had been
assaulted by Mr Larsson or shown any sign to this effect. At the
hearing before the court, she had emphatically denied that he had
behaved improperly towards her. The court found that there was no
evidence to support the allegation that Helena had been, or ran a
risk of being, a victim of improper conduct on the part of
Mr Larsson. As regards Mrs Larsson's illness, the Court of Appeal
noted that she spent most of her time at home and that both
Mr Larsson's and Helena's statements indicated that the emotional
ties between Helena and Mrs Larsson had been strengthened, rather
than weakened, since she became ill. The illness could thus not
constitute an obstacle to the transfer of custody. Finally, the
investigations provided no evidence to suggest that Thomas's foster
parents, Mr and Mrs Bäckius, were unsuited. On the contrary, what
emerged in the proceedings was that both children were well cared
for in the foster homes, in a secure and stimulating environment.

A further appeal by the applicants to the Supreme Court is
currently pending.

II. RELEVANT DOMESTIC LAW

A. The Child Welfare Act 1960 and the 1980 legislation
replacing it

55. Decisions concerning the applicants' children were based on
the Child Welfare Act 1960 (barnavårdslagen 1960:97 - "the 1960
Act"), the Social Services Act 1980 (socialtjänstlagen 1980:620) and
the 1980 Act containing Special Provisions on the Care of Young
Persons (lagen 1980: 621 med särskilda bestämmelser om vård av unga
- "the 1980 Act").

The Social Services Act 1980 contains provisions regarding
supportive and preventive measures effected with the approval of the
individuals concerned. The 1980 Act (1980:621), which provided for
compulsory care measures, complemented the Social Services Act 1980;
when they entered into force on 1 January 1982, they replaced the
1960 Act. In general, decisions taken under the 1960 Act, which
were still in force on 31 December 1981, were considered to have
been taken under the 1980 Act. As from 1 July 1990 the relevant
legislation has been amended (see paragraphs 64-67 below).

56. It is primarily the responsibility of the municipalities to
promote a positive development for the young. For this purpose each
municipality has a Social Council, composed of lay members assisted
by a staff of professional social workers.

1. Prohibition on removal

57. The Social Council could, after the termination of public
care (for details of the Swedish law on compulsory care, see the
Olsson I judgment, pp. 20-27, paras. 35-50), issue a prohibition on
removal under section 28 of the Social Services Act, which read as
follows:

"The Social Council may for a certain period of time or
until further notice prohibit the guardian of a minor from
taking the minor from a home referred to in section 25 [i.e.
a foster home], if there is a risk, which is not of a minor
nature, of harming the child's physical or mental health if
separated from that home.

If there are reasonable grounds to assume that there is such
a risk, although the necessary investigations have not been
completed, a temporary prohibition may be issued for a
maximum period of four weeks, pending the final decision in
the matter.

A prohibition issued under this section does not prevent a
removal of the child from the home on the basis of a
decision under Chapter 21 of the Parental Code."

The preparatory work (Prop. 1979/80:1, p. 541) relevant to
this provision mentioned that a purely passing disturbance or other
occasional disadvantage to the child was not sufficient ground for
issuing a prohibition on removal. It stated that the factors to be
considered when deciding whether or not to issue such a prohibition
included the child's age, degree of development, character,
emotional ties and present and prospective living conditions, as
well as the time he had been cared for away from the parents and his
contacts with them while separated. If the child had reached the
age of 15, his own preference should not be opposed without good
reasons; if he was younger, it was still an important factor to be
taken into account.

The Standing Social Committee of the Parliament stated in
its report (Socialutskottets betänkande 1979/80:44, p. 78), inter
alia, that a prohibition might be issued if removal could involve a
risk of harm to the child's physical or mental health, thus even
where no serious objections existed in regard to the guardian. The
Committee also stressed that the provision was aimed at safeguarding
the best interests of the child and that those interests must
prevail whenever they conflicted with the guardian's interest in
deciding the domicile of the child. It also took as its point of
departure the assumption that a separation generally involved a risk
of harm to the child. Repeated transfers and transfers which took
place after a long time, when the child had developed strong links
with the foster home, should thus not be accepted without good
reasons: the child's need for secure relations and living conditions
should be decisive.

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 .....