CASE OF JOVANOVIC v. SWEDEN
Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary
5. The applicant was born in 1982 and lives in Eskilstuna, Sweden. She originates from Serbia and is a Serbian Orthodox Christian. In April 2007 she started a relationship with a Serbian man, B., who lived in Sweden, and in August 2007 they married in Serbia. Subsequently, the applicant was first granted a temporary residence permit in Sweden until December 2009 and then, in April 2010, she was granted a permanent residence permit. The applicant moved to Sweden in January 2008 and, on 25 July 2008, she and B. had a son, X. 6. Due to a suspected infection, X remained in hospital for a week following his birth before he was discharged in good health. On 20 August 2008 the applicant and B. took X to hospital where it was revealed that he had bruises on his genitals. The family was allowed to return home after X had been examined. On the following day X’s condition worsened and he suffered from cramps. The applicant and B. again took him to hospital. X suffered extensive bleeding in the brain and a chief physician at the hospital suspected that he had been severely ill-treated. X was kept in hospital. 7. On 25 August 2008, a physician filed a report on suspected child abuse with the social services and, on the same date, the Employment and Family Council (arbetsmarknads- och familjenämnden, hereafter the Social Council) in Eskilstuna decided, under section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52; hereafter the “1990 Act”), to take X into immediate compulsory public care on a provisional basis. The decision was executed on that same day. 8. On 2 September 2008 the County Administrative Court (länsrätten) of the County of Södermanland confirmed the decision of the Social Council. It appears that the applicant did not appeal against this decision. 9. Subsequently, the Social Council applied to the County Administrative Court for a care order in respect of X. The applicant and B., who were represented by legal counsel, opposed the measure while X’s legal representative agreed that it would be in the child’s best interest to be placed in compulsory public care. 10. By judgment of 28 October 2008 the County Administrative Court, after having held an oral hearing, granted a care order in respect of X. The court noted that, according to a medical certificate submitted by a chief physician, X had bruises on his genitals, probably injuries from being squeezed. Bleeding in the brain and a red spot on the left side of the chest strongly suggested that X had been gripped tightly and violently shaken and suffered from “shaken baby syndrome”. X had severe brain injuries and would probably suffer lifelong mental and physical disabilities. The court found that X’s injuries had occurred while he had been in his parents’ care. Thus, in the court’s opinion, it did not matter who had actually caused the injuries but it sufficed to state that the parents had failed to protect X from being injured. The court concluded that the parents had shown a serious lack of ability to care for their son. The judgment had immediate effect. 11. On 9 March 2009 the Administrative Court of Appeal (kammarrätten) in Stockholm upheld the lower court’s judgment. It held that neither the oral statements made before it, nor anyreached by the County Administrative Court. 12. The applicant appealed to the Supreme Administrative Court (Högsta förvaltningsdomstolen) which, on 17 June 2009, refused leave to appeal. 13. In the meantime, on 19 September 2008, X was transferred from the hospital to an evaluation and treatment home (utrednings- och behandlingshem) together with the applicant and B. The main responsibility of that home was to secure X’s protection. It also had the tasks of evaluating the parents’ ability to care for X, of providing the parents with such abilities if needed and of supporting the parents in their crisis situation. The staff at the home found, after the family had been there for eight weeks, that the applicant had shown good ability to satisfy X’s basic physical needs, take care of his practical needs and had been constantly present for him. However, she had shown considerable flaws in her emotional interaction with X and it was said, among other things, that she had not been able to separate her need for consolation and emotional care from X’s feelings and needs. Her attitude towards X was described as if she objectified him rather than regarded him as an individual in his own right, which in the report was described as highly worrying. It was further noted that she did not accept X’s injuries and that she did not talk at all about his future disabilities. As regards B., the staff at the home noted inter alia that he had been absent to a great extent due to his work commitments. 14. In December 2008 a criminal investigation concerning suspected child abuse in respect of the applicant and B. was discontinued since it was impossible to prove that either of them had committed the abuse. 15. In March 2009 X was placed in a family home (familjehem) consisting of a Swedish married couple. 16. In September 2009 the applicant twice reported B. to the police, claiming he had threatened to kill her and her family. 17. On 5 February 2010 the applicant requested the Social Council to terminate the public care. She insisted that she had never ill-treated X nor witnessed anyone else doing so. She had had no reason to suspect that X risked ill-treatment at home. Moreover, she submitted that she and B. had divorced and that, through an interim decision, she had been granted sole custody of X while B. had limited visiting rights. Furthermore, she had completed her studies in Swedish for immigrants and was planning to find work. 18. The Social Council ordered an investigation into the family’s situation which was completed on 22 February 2010. The purpose was to investigate and analyse whether X should remain in public care. The social services spoke with the applicant and B., visited the family home and gathered relevant information for the case. Once finalised, the investigation report stated, inter alia, that according to a medical certificate issued by Professor O.F., a specialist on “shaken baby syndrome”, X was suffering from that syndrome. It was also stressed that X’s life had been in danger when he had been shaken, that he had suffered lasting brain injuries and would need care for the rest of his life. It was further noted that X had suffered injuries to his genitals. Moreover, it was stressed that it was the social services’ responsibility to ensure X’s safety and that, regardless of which parent had caused X’s injuries, the other parent had failed to protect him. 19. On 25 March 2010 the Social Council rejected the applicant’s request to terminate the public care. In its decision the Social Council referred to the findings of the investigation report. 20. The applicant appealed against the decision to the County Administrative Court and requested that the care order be terminated. She maintained that there was no need to keep X in public care as she was fully capable of caring for her own child. She further criticised the medical certificates that had been submitted in the case and contested the assumption that X suffered from “shaken baby syndrome”. Instead she claimed that X’s injuries had been caused by malpractice of personnel at the hospital where he had been treated. She further argued that X’s human rights were being violated since he was not allowed to speak his native language and practise his religion. She also complained about the proceedings before the Social Council, which she considered to be flawed. 21. The Social Council contested the applicant’s claims, stressing that X’s life had been in danger and that he had suffered lasting brain injuries while in his parents’ care. 22. On 28 May 2010 the County Administrative Court rejected the applicant’s request to obtain an opinion from the Legal Advisory Council of the National Board of Health and Welfare (Socialstyrelsens Rättsliga råd). According to the County Administrative Court, there was no reason to obtain such an opinion. 23. Both parties submitted documentary evidence. The applicant submitted, inter alia, a medical certificate of her own, stating that X likely suffered from a severe brain injury, probably anoxic brain injury (injury to the brain due to a lack of oxygen). 24. On 20 August 2010 the County Administrative Court held an oral hearing in the case, where the applicant insisted that she had not in any way ill-treated X. Nor had she seen that X had been harmed by B. or any other person. According to her, there was nothing to suggest any flaws in her parental abilities and she maintained that X’s injuries had been caused by malpractice at the hospital. The Social Council stated that it could not rule out the possibility that X had been ill-treated at home. It further stressed that the submitted medical certificates showed that someone had shaken X, causing him severe injuries. X’s legal representative agreed that it would be in his best interest to remain in public care. 25. On 31 August 2010 the County Administrative Court rejected the appeal. Firstly, it found that there had been no flaws in the Social Council’s handling of the case which could affect the court’s assessment. The court then noted that the applicant had contested the physicians’ conclusions and, moreover, that she had submitted a medical certificate of her own. However, the court considered that the applicant’s reasoning in this regard was based on speculation and accusations which, in all essential parts, were unsubstantiated. It held that the medical certificate submitted by the applicant did not in any way contradict those previously submitted. Thus, nothing had emerged that would lead the court to reassess the circumstances that had led to the initial decision to take X into public care. Furthermore, the court found that the changes to the applicant’s life (the divorce and obtaining sole custody of X) were not sufficient to have a decisive effect on the outcome of the proceedings. It also stressed that it was important that X continue to bond with his family home parents. Furthermore, the court took into consideration that X had been subjected to severe ill-treatment while in his parents’ care and that the circumstances surrounding the incident had not been clarified. Thus, the compulsory public care order should remain in place. 26. The applicant appealed to the Administrative Court of Appeal, maintaining her request for an opinion from the Legal Advisory Council. The applicant also reiterated her criticism of the conclusions given in the medical certificates and, again, questioned the assumption that X suffered from “shaken baby syndrome”. She further maintained that X’s injuries had been caused by malpractice at the hospital. The applicant also questioned the family home’s ability to care for her son. 27. The Social Council and X’s legal representative both contested the applicant’s claims. 28. On 3 November 2010 the Administrative Court of Appeal granted the applicant’s request for an opinion from the Legal Advisory Council. The opinion was submitted to the court on 18 January 2011. It referred to a certificate by the scientific advisor T.A., a physician specialised in medical radiology, which stated, inter alia, that X’s injuries had been caused by severe violence and that his injuries corresponded exactly to “shaken baby syndrome”. The injuries could not have been caused by illness or complications related to an illness nor through a minor accident such as a fall from a changing table or similar. The injuries could not have been a consequence of an injury during delivery either. Thus, T.A. wholly agreed with the assessments previously made by Professor O.F. 29. On 18 March 2011 the Administrative Court of Appeal held an oral hearing where the applicant stated that she had started to question her earlier position that X’s injuries had not been caused by ill-treatment in their home. Although she had not actually witnessed anyone harming X, she said that the only person, apart from herself, who could have done so was B. On the day they had taken X to the hospital, B. had been in a bad temper. On that day B. had taken care of X while she had been in the bathroom preparing a bath for X, and from the bathroom she had heard X cry and had gone to see what was the matter. B. had then told her to leave the room and after she had done so the baby had become quiet and B. had left the apartment. Just shortly after this and while undressing X, she had noticed that something was wrong with him and that he was having trouble breathing. B. had threatened her and told her that she would be expelled from Sweden if she were to tell anyone what had happened. She also told the court that B. had often been irritated when X cried and that he had had a tendency to “explode”. The applicant further stated that her life was stable, she spoke Swedish, had an apartment and work, and she would do everything to ensure that X received the care and treatment he needed. 30. The Social Council maintained that X would be exposed to danger if he were to be left in the applicant’s care. X’s legal representative contested the applicant’s claims and pointed out that, although it had not been clarified who had caused X’s injuries, it must be presumed that it was one of the parents. Although she found no reason to question that, with help, the applicant would be able to care for her son, she considered that he was in need of protection until it had been established who had caused his injuries. 31. On 12 April 2011 the Administrative Court of Appeal upheld the lower court’s judgment. From the outset, it noted that the primary consideration was the best interests of the child. The court then observed that X needed extensive care and great responsibility was therefore placed on the custodian in terms of understanding X’s needs. Thus, the court considered it encouraging that the applicant had now accepted the conclusions in the medical certificate concerning X’s state of health and the cause of his injuries. In addition, the court considered that the applicant’s life situation had improved since the decision to take X into public care. Of decisive importance to the court was, however, whether X’s needs could be met by the applicant. In this context, the court noted that it had still not been clarified who had caused his injuries. The court further considered that, in the light of the applicant’s statement before the court, her previous behaviour was difficult to understand. Although the court acknowledged the applicant’s exposed situation at the time of X’s injuries, it nevertheless stressed that the conditions in the family had led to serious deficiencies in X’s care, causing him life-threatening injuries and lifelong disabilities. The court concluded that there was still a clear risk of impairment to X’s health and development if the public care were to be terminated. 32. Upon further appeal by the applicant, the Supreme Administrative Court refused leave to appeal on 20 June 2011. 33. On 29 September 2011, in proceedings regarding custody of X between the applicant and B., the District Court (tingsrätten) repealed its provisional decision of 22 October 2009 to grant sole custody of X to the applicant and decided that the parents should have joint custody. It appears that the applicant and B. had agreed that they needed to cooperate on questions relating to X’s future situation. 34. On 12 December 2012 and on 10 July 2013 the Social Council decided that the public care should continue. As far as is known to the Court, the applicant did not appeal against these decisions. 35. Following the granting of the public care order, the applicant’s contact rights to visit X were regularly examined by the domestic authorities. During X’s first three weeks in the family home, the applicant and B. visited him three times per week. Subsequently, the applicant and B. visited him once a week. During the visits, an interpreter and a support person were present. 36. On 4 June 2009, the Social Council decided to reduce the parents’ contact rights to once every other month since the visits had had a clearly negative effect on X’s mental state. The applicant did not agree with the changes and appealed against the decision to the County Administrative Court. On 15 October 2009 the court dismissed the appeal. The applicant did not lodge a further appeal with the appellate courts. In January 2010 the contact rights were extended to one and a half hours once every month, as X was feeling better. However, on 22 July 2010 the Social Council decided again to reduce the parents’ contact rights to one hour every month, since X had been affected negatively during and after the visits. 37. The applicant appealed against the decision, maintaining that she had not in any way ill-treated X and that she wanted to care for him. On 31 August 2010 the County Administrative Court, after having held an oral hearing, upheld the Council’s decision. The court observed that X had reacted negatively during the visits and held that, due to his great need of care and treatment for his disabilities, it was important for him to be in a stable and calm environment and be allowed to bond with his family home parents. 38. The applicant appealed to the Administrative Court of Appeal which, after having held an oral hearing, rejected the appeal on 12 April 2011. The court noted that the Social Council intended to film the visits and subsequently, with the help of the Child and Youth Psychiatric Clinic (Barn- och ungdomspsykiatrin), analyse the results. Having regard to this, and the observations made by the Social Council during the visits, the court held that the contact restrictions should remain. The applicant did not appeal against the decision to the Supreme Administrative Court. 39. In the meantime, in May 2010, the applicant requested that X be placed in another family home since she considered that the current family home couple did not care sufficiently well for her son. She also added that she considered it to be X’s right to be placed in a Serbian family. In September 2010, after having carried out an investigation, the Social Council rejected the request on the ground that it would not be in X’s best interest to be moved to another family home and that his needs were best met by remaining where he was. The applicant does not appear to have appealed against this decision to the administrative courts. 40. On 26 October 2011 the Social Council decided that the applicant would be allowed to speak Serbian to X during the visits. 41. Following the filming of the applicant and X during one hour, in a report dated 3 June 2012, the company, which had been assigned by the Social Council to carry out the filming and analysing the emotional interplay between the applicant and X, stated that the applicant had shown sensitivity towards X and that they had shown a genuinely good interplay. It was further noted that the applicant had the necessary abilities to support X in his future development. The report concluded that it was of great importance for X to be allowed to see his mother much more often. It was also recommended that the visits take place without the presence of the family home parents. 42. On 12 June 2012, the contact rights of the applicant and B. were extended to one and a half hours once every month. It was also considered that the meetings functioned without a support person present. According to the Government, this arrangement was to remain in place until the end of 2013 and the applicant had not requested any changes to it. Moreover, a meeting between the applicant, the family home and the Social Council, scheduled for October 2013, was cancelled upon request by both the applicant and the family home, as they had already agreed on the remaining visits for that year. The Court has not been informed whether any subsequent changes to the time, form or frequency of the visits have taken place. 43. At present the applicant is working as a kindergarten teacher.