JOHANSSON v. SWEDEN
Inadmissible
Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The first applicant, Mr Christer Johansson, is a Swedish national born in 1969 and the second applicant, Ms Annie Johansson, is an Indian national born in 1971. They are residing in Sweden. They were represented before the Court by Ms R. Harrold-Claesson, a lawyer practising in Olofstorp, Sweden, and Mr R. Kiska, a lawyer practising Vienna, Austria. 2 3. The applicants are a married couple who have a son, X, born in 2001. On 24 June 2009, the Social Council (Socialnämnden) of the Region Gotland decided to take X into immediate compulsory public care and the decision was implemented the following day. Initially, the applicants were prohibited from having any contact with X but this prohibition was later revoked. 4. This decision was followed by an application by the Social Council to the County Administrative Court (förvaltningsrätten) of the County of Gotland for compulsory public care of X, which was granted 13 August 2009. The court found that there were psychological and physical care deficiencies in the applicants’ care of X, resulting in his health and development being at risk. 5. The applicants appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm which upheld the lower court’s judgment in full. On 27 January 2010 the Supreme Administrative Court (Högsta förvaltningsdomstolen) refused leave to appeal. 6. By decision of 21 December 2009, which was upheld by the Social Council on 12 January 2010, the applicants’ right to contact X was again limited. The applicants were granted a supervised visit with X, for one hour every fifth week, and a supervised telephone call, for fifteen minutes every two weeks. E-mails and letters from the applicants were also forwarded to X. The applicants were specifically instructed not to discuss the legal process with X, but did not comply with this instruction. 7. On 27 January 2010, the applicants requested the Social Council to revoke the decision to keep X in compulsory public care. On 12 May 2010, the Social Council rejected the request. The decision was appealed against to the County Administrative Court in Stockholm which, on 21 September 2010, found that X was still in need of care and so upheld the Social Council’s decision. 8. On 21 January 2011, the first applicant was convicted by the District Court (tingsrätten) of Gotland of minor narcotics offences and unlawful deprivation of liberty (olaga frihetsberövande) after having abducted X by force. Probation (skyddstillsyn) was ordered, combined with the obligation to undergo therapeutic treatment and two months’ imprisonment, which he had already served in pre-trial detention. The judgment was later upheld by the Svea Court of Appeal (hovrätten). 9. On 8 March 2011, as a consequence of the conviction, the Prosecution Authority (Åklagarmyndigheten) issued a restraining order against the first applicant vis-à-vis X, initially for one year but later extended up to and including 2 March 2013. 10. On 1 July 2011, upon appeal by the applicants, the Administrative Court of Appeal upheld the lower court’s judgment to keep X in public care. It took into consideration the first applicant’s conviction as well as the restraining order. It further considered that, on 26 November 2010, the Social Council had decided to ban all visits and contact between the applicants and X. One, or both, of them had published or provided for publication on the internet confidential information regarding X. The court concluded that the applicants’ ability to care for X had not improved but rather worsened. 11. On 12 January 2011, the Social Council requested the District Court to transfer legal custody (vårdnad) of X from the applicants to a specially-appointed guardian (särskilt förordnad vårdnadshavare). It based its request on the information obtained during the previous proceedings and submitted that, due to the first applicant’s abduction of X, there was a long-term need to limit the applicants’ contact with their son. X was also found to have a need for long-term care. The Social Council further claimed that as long as the applicants had custody of X, it was not possible to keep information regarding him confidential from them and so prevent such information being published on the internet. Considering the complexity of the matter and the applicants’ behaviour towards the social workers, it was not considered possible to transfer custody to X’s foster home parents or a social worker in the near future. Instead, a third party was suggested. 12. On 19 December 2011, the District Court rejected the interim request to appoint a specially-appointed guardian for X and, on 13 June 2012, it rejected the request finally. It took into account the reasons given by the Social Council but also noted that compulsory public care should only be used when it was absolutely necessary and that the aim was that it should cease as soon as was possible. Considering that the applicants had requested the administrative courts to repeal the compulsory care, it could thus not be concluded that a reunion was impossible. Friends and family of the applicants had furthermore stated that they were able to care for their son. In the court’s view, a decision to transfer custody would most likely render the applicants even more angry and frustrated which would rather increase the risk of their interfering in X’s care. In conclusion, it found that it was not in X’s best interest to transfer custody from his parents. 13. The Social Council appealed against the judgment to the Court of Appeal. It submitted a psychiatric evaluation of X, dated 9 August 2012, and performed by a chief physician specialised in child psychology and a psychologist specialised in clinical psychology with focus on neuropsychology. The evaluation stated, inter alia, that X had had nightmares for about one year after his father had abducted him, that he had described the situation to be the worst thing that ever had happened to him, that he had found information about himself and his father on the internet which had made him afraid, that he did not want to live with his parents and that he was found to have a great need to be able to develop in peace and quiet in his foster home. The chief physician was also called as a witness. The Court of Appeal granted leave to appeal. 14. The applicants requested the appellate court to order an additional psychological assessment of X, requested disclosure of certain documents and asked for a number of new witnesses to be heard. Their requests were rejected by the Court of Appeal as it found no reason to order an additional psychological assessment of X and since the new evidence produced by the applicants, as well as the requested documents, aimed to prove circumstances that were not relevant to the case. 15. On 10 December 2012, the Court of Appeal, after having held an oral hearing, reversed the lower court’s judgment and transferred custody of X from the applicants to a specially-appointed guardian. It took into account Article 8 of the Convention and also noted that the possibility to transfer the custody of a child from his or her parents should be used restrictively. However, it found that the applicants had failed in their care of X, both physical and psychological. It specifically pointed to the fact that X had not been allowed to go to school and had been kept isolated from children of his own age. It further considered the applicants’ actions after X had been taken into compulsory public care, in particular the first applicant’s abduction of X and the publication of confidential information on the internet. The court found it clear that the applicants, if they had the possibility, would interfere with X’s care. They were also found to be in denial about their failings in providing X with proper care as well as concerning the results of X’s psychiatric evaluations. The appellate court concluded that the situation was such that custody should be transferred, even taking into consideration the applicants’ right to family life under Article 8 of the Convention. It further found that, considering the applicants’ behaviour, it would be an unreasonable burden to place on the foster home parents to require them to deal with questions regarding the applicants’ contact with X. It therefore considered that the best solution was to appoint an experienced family law advocate as X’s specially-appointed guardian. 16. One of the three legally qualified judges dissented and considered that it was not in X’s best interest to transfer custody from his parents. 17. The applicants appealed to the Supreme Court (Högsta domstolen), maintaining their claims and adding, inter alia, that one of the three legally qualified judges had been biased since he had been working at the County Administrative Court at the time when the question of compulsory public care had been decided. 18. On 25 April 2013, the Supreme Court refused leave to appeal. 19. It follows from Chapter 6, section 1, of the Parental Code (föräldrabalken, 1949:381, hereafter the “Code”) that all children have a right to care, security and a good upbringing. They shall be treated with respect for their person and individuality and may not be subject to corporal punishment or other degrading treatment. 20. A child is under the custody either of both parents or one of them, unless a court has transferred custody to one or two specially-appointed guardians (Chapter 6, section 2 (1), of the Code). Anyone who has custody of a child is responsible for the child’s personal circumstances and for ensuring that the child’s needs under Chapter 6, section 1, are satisfied. The guardian is also responsible for the child having the supervision needed due to the child’s age, development and other circumstances, and should ensure that the child is adequately provided for and receives adequate education (Chapter 6, section 2 (2), of the Code). 21. What is in the best interest of the child shall always be decisive in decisions regarding custody, residence and contact (umgänge) (Chapter 6, section 2a (1), of the Code). 22. If a parent, in his or her care of his or her child, abuses or neglects or in any other way fails in taking care of the child in such a way that would lead to a permanent risk for the child’s health or development, the court shall remove the right of custody (Chapter 6, section 7 (1) of the Code). If the child is under both parents’ custody and what is stated in paragraph 1 applies only to one of them, custody shall be entrusted to the other parent. If that parent also fails in taking care of the child, the court shall transfer the custody to one or two specially-appointed guardians (Chapter 6, section 7 (2), of the Code). 23. When custody of a child has been transferred to one or two specially-appointed guardians, the court may, upon request by one or both parents or the Social Council, transfer it to one or both parents (Chapter 6, section 10 of the Code).