S.G. v. SWEDEN
Inadmissible
Nicolas Bratza
The applicant, Ms S.G., is a Swedish national, born in 1962 and living outside Stockholm. She is represented before the Court by Mr Carl Gustaf Elwe, a lawyer practising in Karlskoga. The facts of the case, as described by the parties, may be summarised as follows. The applicant lives under orderly social conditions. She is the mother of four children, her son P., born in 1990, and three daughters, born respectively in 1988, 1998 and 1999. After separating from their father Mr B. in 1993, she has been the sole holder of the custody and has assumed the daily care of all four children. However, the applicant has had several problems with her son P., who since an early age has been hyperactive and unable to concentrate, combined with aggressive behaviour. Her application under the Convention concerns certain public care measures taken with respect to him by the Swedish social authorities. According to the applicant, her ex-husband had alcohol problems and physically abused both herself and P. In March 1996 he was convicted of having assaulted her in 1995. For the same reason he was banned from visiting the family for a period of one year – from January 1996 to January 1997. In connection with her separation from Mr B. in 1993, the applicant contacted the mental welfare services for children and young people (the so-called “PBU”), as she had difficulties in managing P. and wished assistance in dealing with the impending separation. P. was examined by a psychologist, who observed, inter alia, that the boy was unsure of his identity and scared by his own aggressiveness and that disaster and chaos were dominant features of his world. No indication of neurological disabilities was detected then. Since P. was found to need to be in a small group of children, he was placed in a special pre-school, named Kritasken, in January 1995. In November 1995, the Social Welfare Committee received a report from Kritasken, stating that P. was not feeling well. The applicant was described as having great difficulty in setting limits for him. P. was said to function relatively well at pre-school, where activities were structured and the staffing ratio was relatively high. The report also said that P. constantly hit his mother. As the staff understood the situation, P. and his mother were engaged in a power struggle. They had also noticed that the conflicts between the parents had an adverse effect on P. On two recent occasions, P. had had bloody scratch-marks in his face, which his mother had stated that she had caused. She had informed the staff that P. had told her that he wanted to die in order to make her sad. She had seen him sitting with the point of a sheath knife turned towards him. In the light of this report, the social welfare office made an investigation, which resulted in the applicant and her (then) two children being admitted in April 1996 to the child psychiatry clinic at Danderyd Hospital, where they stayed for three weeks. There she received assistance in setting limits and improving routines. The staff had no impression that P. might be suffering from any neurological disabilities. To begin with, the family’s situation had slightly improved after the stay at the clinic. The social welfare office was in regular contact with the applicant. During the summer, the situation began to deteriorate again. The applicant was offered assistance in the form of a stay at a treatment centre. She, however, declined this offer. She told the social welfare officers that at present she was in no need of having contact with the social services other than in connection with the follow-up meetings at P.’s pre-school. In August 1996 she concluded her after-care contact with the clinic at Danderyd Hospital and shortly afterwards she also discontinued her dialogue contact with “PBU”. At or around the same time, in accordance with the applicant’s wishes, the social services appointed the children’s paternal aunt and uncle as contact family in order to provide some relief to the applicant. In November 1996 Kritasken submitted a second report to the Social Welfare Committee stating that P. had recently had great problems at the pre-school and, as they understood it, at home as well. The mother was unable to calm him down, they quarrelled and she slapped him. He had a very negative self-image and often spoke of himself in disparaging terms. On 14 November 1996, a serious incident had occurred. Together with a younger child P. had run away from the pre-school across the road in the direction of the railway track. Two teachers had run after them and had shouted to them to stop. While the other child obeyed, P. jumped down onto the track. After being dragged away from the track by one of the teachers, he was brought back to the pre-school. Later the same day, when the teachers tried to explain the danger of the trains to P., he had replied that he wished to die. On learning about the above incident, the applicant sought assistance at the child psychiatry clinic at St. Göran’s Hospital, where she and the children were kept for observation from 15 November to 18 November 1996. According to relevant medical records, P. was particularly sad, had several times expressed that he wished to die and had stated that he wished to hurt his mother and sister. His mother was very tired and lacked the necessary strength to support him during these periods of melancholy. Conflicts often blow up between them. The mother was not only worried about P. but also about his sister. Following a meeting involving the applicant, a social welfare officer and doctors, it was found necessary to investigate her ability to assume the care of the children and what kind of support and assistance they needed. On 19 November 1996, with the applicant’s approval, she and the children were placed at Triaden, an emergency care and investigation centre. According to the relevant report, P. had recurrent outbreaks of aggression and staff had to mediate between him and his mother and also to physically protect her. In these situations, P. was in a state of great anxiety and the mother expressed that she was afraid of him. On some occasions she escaped by shutting herself up in her room. There were few occasions when she listened to P. and comforted him in order to make him feel safe. She often raised matters in his presence that made him feel anxious and often pushed him away when he sought physical contact with her. When she allowed him to get close to her, he would variably hug her, pull her hair or scratch her face. P. sometimes hit his sister hard and she hit him back. The mother was not capable of separating them and preventing them from hurting each other. P. had said to his mother that she could kill him if she wished and had also threatened to kill his sister, who became so scared that she could not sleep. A psychologist found, inter alia, that P’s feelings towards his mother were characterised by great ambivalence, combining a yearning for closeness, a need for control and fierce aggressiveness. It was probably necessary that other adults create structure and set limits in order for him and his mother to have a good time with each other. It was evident that he needed considerable adult support, to be in a well-defined and structured environment with clear requirements and limits being set, where he could feel that he had a certain degree of control. He also needed assistance in his relationship with his mother, both as regards closeness and emancipation. It was also recommended that P. undergo neuropsychiatric examination and suggested that care at a treatment centre could provide him with both structure, limits and emotional understanding and at the same time assist his mother in establishing a good relationship with him. After two weeks at Triaden, the competent staff of the centre found that, because of the destructive conflicts between the applicant and P. and her inability to see to his needs, it had become untenable to keep them both there. They suggested that he receive care outside his home, preferably at a residential treatment centre. The applicant expressed a wish that he receive independent assistance outside the family as she too realised that she was unable to provide him with appropriate care. She was advised that placement at a centre would normally last two or three years. On 2 December 1996, with the applicant’s consent and in consultation with the social services, the boy was placed in an emergency family home (jourhem) not far from the applicant’s home. In January 1997 access arrangements were agreed on, according to which P. was to spend every other week-end in the applicant’s home, in addition to visits by the applicant in the emergency family home every week. Since the applicant appeared to have a preference for placement of P. in a foster home rather than in an institution and since the foster home placement seemed to function well, the authorities agreed that this was the best alternative. As there were long waiting lists for a neuropsychiatric examination, the social services engaged a psychologist who, at the end of February 1997, performed a neuropsychological examination, a so-called Nepsy-test, on P. In a report of 1 March 1997 the psychologist concluded that the test profile revealed characteristics of so-called Deficits in Attention, Motor control and Perception (“DAMP”) and that immediate assistance to address P.’s special needs was called for. In March 1997, after an unsuccessful attempt by the applicant to have Mr B.’s prohibition on visits extended, the contact between P. and his father was resumed. In accordance with the applicant’s wishes, they were to see each other in the presence of P.’s aunt and uncle. In April 1997, she stated that she no longer wished to keep them as contact family as they were not impartial. Instead, P.’s father was to see P. in the emergency family home. Around the same time she told Ms E. (the “emergency family home mother”) that, contrary to her agreement with the social services, she would bring P. home every weekend instead of every second weekend. On 17 March 1997, the applicant told the social services that she wanted P. to return home. This was followed by discussion in the course of the spring, at meeting organised by the social welfare office and involving the persons implicated. In April 1997, the applicant appointed a personal representative to handle her contacts with the social services, since she no longer wished to meet the social welfare officers. On 4 June 1997 the applicant declared that she no longer consented to her son’s emergency home placement. On 5 June 1997 the Social Council of Österåker decided, under section 6 of the Act with Special Provisions on the Care of Young Persons (lag (1990:52) med särskilda bestämmelser om vård av unga; hereinafter ”the 1990 Act”), immediately to take P. into public care on a provisional basis. The Stockholm County Administrative Court confirmed the decision on 18 June 1997. The Social Welfare Office then carried out an investigation. In its report of 19 June 1997 it observed that P. needed to be in an environment that was clearly structured, with well-defined requirements and limits and with adults who could give him support. P. had become calmer during his stay in the emergency family home, where he was functioning well with more clearly defined limits, greater security and support. The applicant had tried to the best of her ability to cope with her role as a parent and had endeavoured to find ways of meeting P.’s needs. Unfortunately, her efforts had not sufficed to provide P. with an environment in which he could grow up and develop positively. The problems inherent in the relationship between them manifested themselves clearly during P.’s stay in the emergency family home. There was a palpable risk that his health and development would be impaired as a result of deficiencies in the care in his home environment. Irrespective of the cause or causes of P.’s problems – a neurological disability, abuse on the part of his father or the applicant’s lack of capacity to take care of him – it was clear that there were very substantial problems in the mother-child relationship. Both reports from Kritasken concerned the applicant’s problems in dealing with P., as did the investigation by Triaden. The support and assistance the applicant had received in her role as parent had not brought any lasting improvement. There was no time to spare for meeting P.’s care needs. Those needs would best be satisfied by placing him in a family home after his stay in the emergency family home. On 1 July 1997 the Social Council applied to the County Administrative Court for the taking into care of P. on a permanent basis in accordance with sections 1 and 2 of the 1990 Act. On 9 July 1997 the County Administrative Court held an oral hearing during which the applicant, P.’s counsel, representatives of the Social Council as well as witnesses for each party were heard. The applicant opposed the Social Council’s application, disputing that there were deficiencies in her care and that any of the other conditions in section 2 of the 1990 Act had been fulfilled. In her submission, the problem in issue was of medical and psychiatric character and she would consent to appropriate treatment of these problems. Moreover, the court’s case file included certain reports from the Social Council, the emergency foster home and from an investigation concerning P. conducted on 21 January 1997 by a child emergency care home. The latter stated, inter alia, that P. had difficulties in controlling his aggressiveness and in showing his feelings. By a judgment of 11 July 1997, the County Administrative Court granted the application and issued a care order concerning P. The court found that the applicant and her son had a destructive emotional relationship to one another and that she had difficulties in setting limits to her son’s behaviour. In the court’s opinion there was nothing that proved the applicant’s allegation that P. suffered from DAMP. The court held that, whatever the possible causes to the problems between mother and son, those problems had lasted for a very long period. Already when P. was a baby, the applicant had had contacts with the child welfare services and, in 1993, with a psychology centre for children and young persons. In spite of substantial assistance provided by the Social Council under a voluntary care arrangement, there had been no improvement in the relationship between mother and son. It is therefore obvious that the mother was unable to provide him with the secure and stable environment he needed. She still was unable to see to his needs for care. Accordingly, there had been a serious deficiency in the mother’s care for her son. The court concluded that the shortcoming in the applicant’s care constituted a clear risk of impairment to her son’s health and development. On 16 October 1997 a paediatrician diagnosed P. as suffering, to a moderate degree, from the Attention Deficit Hyperactivity Disorder (“ADHD”) resulting in hyperactivity and inability to concentrate. In her report the paediatrician stated, inter alia, that P. was in need of a structured and calm environment and of assistance in solving conflicts caused by his hyperactivity and concentration disorder. The paediatrician further pointed out that it was important that P.’s carer receive psychological support. The above decision did not alter the access arrangements agreed on in January 1997, which apparently continued to apply. The applicant appealed against the County Administrative Court’s judgment to the Administrative Court of Appeal, which on 6 November 1997 held a further hearing in the case. The applicant adduced the paediatrician report and the court heard, at the applicant’s request, oral evidence from the applicant’s father. According to the social welfare officer, it had not yet been possible to find a foster family for P. other than the emergency family home. He therefore remained in the latter home, where Ms E. received assistance from the social services and from a family inspector. On 27 November 1997 the Administrative Court of Appeal upheld, by three votes to two, the lower court’s judgment. In its reasoning the majority stated as follows: “The circumstances adduced by the applicant and what has further emerged in the case do not give reasons to modify the County Administrative Court’s judgment.” The minority stated: “The applicant has several times both initiated and contributed to the taking of voluntary care measures with respect to P. In our opinion P.’s need for care can be provided for on a voluntary basis. The application for taking P. into public care should therefore be dismissed. ...” On 28 January 1998 the Supreme Administrative Court refused the applicant leave to appeal. Following the above proceedings, the emergency family home became P.’s foster home. On 6 March 1998, the applicant again turned to the Social Welfare Committee requesting, firstly, to be reunited with P. or, in the alternative, that he be placed at Heimdalsgården, a special home for care and residence. The Committee rejected her first claim but agreed to prepare for his placement at the said institution, which took place on 18 May 1998. After carrying out an investigation in February 1999, the social welfare office found that the applicant’s relationship with P. had improved. It was observed that he spent every other week-and with his mother, every other week-end with his father, and that the applicant participated actively in the treatment of P. at Heimdalsgården. She came one evening per week to put him to bed. Every other week she consulted a family therapist. In the light of the improvements noted, the office recommended that the care order be lifted and that care be provided at Heimdalsgården on a voluntary basis under a care plan. On 9 March 1999 the applicant agreed. On 22 March 1999 the Social Council decided that the care order should be terminated, on the ground that there was no longer any need for maintaining the public care order with respect to P. The Council, moreover, decided to place P. in voluntary care in a specialised children’s home where he could receive treatment of his ADHD problems. In the light of the above, the County Administrative Court decided on 6 May 1999 to remove the case from its list of cases. During the autumn year 2000, a plan for returning P. to the applicant’s home was initiated, but was suspended after he had confessed to the police that he committed arson on a sports centre during the Christmas holidays. During the summer holidays in 2001 he had a violent outbreak of aggression, whereupon he was returned to Heimdalsgården for treatment. On 19 December 2001 P. returned to live in the applicant’s home and has been reunited with her since. Care pursuant to the 1990 Act shall be provided for a young person under 18 years of age if one of the conditions referred to in sections 2 or 3 of the Act is satisfied and if it appears that the necessary care cannot be given to the young person with the consent of the person having custody of him and, if the young person himself has reached the age of 15 years, with his own consent. Under section 2 of the Act care shall be provided if there is a “palpable risk” (påtaglig risk) of impairment of the health or development of the young person due to ill-treatment, exploitation, lack of care or any other condition in the home. According to the preparatory works to the 1990 Act, the expression “palpable risk” was intended to indicate the degree of risk which would justify a compulsory care order. A subjective assumption that a young person is in danger was not enough and irrelevant circumstances such as public order could not be the basis of a care order. There had to be concrete or apparent circumstances supporting the fact that there was a risk for the young person’s physical or mental health (cf. Government Bill 1989/90:28, pp. 63 and 107). According to section 6 of the 1990 Act the Social Welfare Committee may order the immediate taking into care of a young person (“provisional care order”) if it is probable that he or she needs to be provided with care under this Act and a court decision on the matter cannot be awaited owing to the risk to the young person’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented. Such a decision by the Social Welfare Committee is subject to confirmation by the County Administrative Court.