CASE OF LEVIN v. SWEDEN
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
6. The applicant was born in 1967 and lives in Norway. 7. The applicant is the mother of three children, T. born in October 1999, S. born in March 2001 and D. born in November 2002. In March 2003, the applicant separated from the children’s father, B., and she was eventually granted sole custody of the children, while B. was granted contact rights. The applicant married J. in November 2004. 8. The applicant and her children have been known to the social services since 2002 when a first investigation into their home environment was carried out. During March and April 2005, the personnel at the children’s day care centre felt that the applicant was distracted and stressed and the children were hungry and dirty when they arrived at day care in the mornings and were behaving in a wild and hyperactive manner. In view of this, they reported the situation to the social services in Skellefteå. In March the applicant herself contacted the Child and Youth Psychiatric Clinic (Barn- och ungdomspsykiatrin; hereafter “BUP”) for help, as she considered the situation to be chaotic and she needed help for her son, S., who she claimed destroyed everything at home. BUP reported the family’s situation to the social services. 9. On 3 May 2005 the applicant contacted BUP in a state of despair and, in response, a social emergency unit (social beredskap) went to the applicant’s home, accompanied by police and a chief physician from the adult psychiatric clinic. The authorities found the interior of the home completely destitute; there was hardly any furniture and there was no electricity or running water. The applicant was in a confused state and blamed the mess in the house on S. The social emergency unit decided immediately to place the children, together with the applicant, in a temporary family home (jourfamiljehem). On the following day, the applicant was committed to compulsory psychiatric care in accordance with the Act on Compulsory Psychiatric Care (Lagen om psykiatrisk tvångsvård, 1991:1128). The applicant claimed that she was not ill but agreed to the placement of the children in the temporary family home. A week later, she was released from psychiatric care and returned to her home. 10. During the summer of 2005 the applicant had frequent contact with the social services. However, she felt misunderstood and harassed by the authorities and wanted to bring her two daughters, T. and D., home. As the social services insisted that the situation was not stable enough for the girls to return to the applicant, she withdrew her consent to their voluntary placement. Hence, the Social Council (socialnämnden) in Skellefteå decided to take T. and D. into public care immediately on a provisional basis, pursuant to 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”). The council considered that the measure was necessary in order to protect the children. It also noted that there had been chaos every time the applicant had met with the children during the summer or when she had appeared, often unannounced, at their day care centre, leaving them upset and sad. 11. The applicant, who was represented by legal counsel, opposed the measure but, on 31 August 2005, the County Administrative Court (länsrätten) of Västerbotten confirmed the decision of the Social Council. 12. On 19 September 2005 the Social Council applied to the County Administrative Court for a permanent care order in respect of all three children, in accordance with section 2 of the 1990 Act. The council maintained that the applicant had shown a serious lack of ability to care for her children. It submitted a comprehensive investigation report into the family’s situation in support of its request according to which all three children had worn nappies when they arrived at the temporary family home, although T. only at night, and they had been dirty and had an endless appetite. Moreover, T. had no limits towards adults and wanted to control everything and everyone around her. S. had nightmares and had been afraid of sudden movements. He acted in a very stressed and anxious manner when his mother was present. D. had been late in her speech and motor development. The applicant had not been able to set limits for her children and the situation when they met had always become out of control. 13. The applicant disputed the measure and claimed that she was capable of caring for her children, who suffered from being separated from her. 14. By judgment of 19 October 2005, after having held an oral hearing, the County Administrative Court granted a permanent care order in respect of each of the three children. It found that, on the basis of all the material in the case, it had been shown that the applicant lacked the ability to care for her children, which had already somewhat impaired their health and development, and that there was a serious risk of further damage unless they were given proper care. Since the applicant did not agree to voluntary care, it was necessary to take the children into public care on a permanent basis. 15. The applicant appealed against the judgment to the Administrative Court of Appeal (kammarrätten) in Sundsvall. She had realised that it was not S., but her husband J., who had been responsible for all the destruction in their home. J. had admitted this and they had divorced. However, she did not consider that the children had suffered from this error, although she felt sorry for S. and would have liked to talk to him about it. 16. The Social Council contested the appeal. In its view, the children’s behaviour showed that their development had already been harmed and, moreover, the applicant had no insight into her problems and had difficulties in interacting with her children. 17. On 9 January 2006 the Administrative Court of Appeal upheld the lower court’s judgment in full. In its opinion it was evident that the children had not received proper care at home. Moreover, the applicant had shown signs of mental ill-health and had behaved in an unbalanced manner. Thus there had been a real risk of damage to the children’s health and development. Furthermore, although the court acknowledged that the situation had improved in that the house had been renovated and the applicant had divorced J., it found that the situation was far from being stable, having regard to the serious flaws which had existed, the uncertainty as to whether they still existed and the children’s need for care. 18. The applicant appealed to the Supreme Administrative Court (Regeringsrätten) which, on 23 February 2006, refused leave to appeal. 19. Following the granting of the public care order in August 2005, the applicant had contact rights to visit T. for one hour, once every other week, and spoke with her on the telephone once a week. She met S. once every third week in the presence of the social services and she had contact rights to visit D. for one hour every week. In May 2006 the applicant moved to live with her sister in Göteborg, located approximately 1,100 km from Skellefteå, and as a result she travelled to Skellefteå to see her children roughly once a month. 20. In October 2005, the children were placed in three different family homes, all within approximately 50 km of Skellefteå, as one family was not able to provide the care and support that each child needed. However, it was arranged for the children to meet each other approximately once a month to ensure continued good contact between them. 21. In November 2006 the applicant, through her legal counsel, requested the Social Council to allow her more time with her children as she felt that the children were being deprived of contact with her. 22. On 11 December 2006 the Social Council decided to restrict the applicant’s contact rights to all three children. It first noted that the children’s father, B., had also requested contact rights to the children and that his contact rights had to be taken into account when deciding on the frequency of the applicant’s contact rights, balanced against the best interests of the children. Thus, according to the decision, each parent should meet with the children once every three months in a neutral environment where the family home parents and the social worker responsible for the file should be present. This meant that the applicant would meet her children once every six months. 23. The decision was based on an investigation carried out by the Social Council, in consultation with BUP, into the children’s situation. It was finalised on 1 December 2006 and concluded, inter alia, the following. All three children had suffered severe harm to their health and development because of the deficiencies in the applicant’s ability to care for them. They were vulnerable and sensitive to change. However, since the permanent care order, T. had slowly become more calm and balanced and had started to learn how to play. She and the applicant had been alone during their meetings and had done various things such as going to the playground, the swimming pool or a restaurant. T. had been very tired after the meetings and she had slept badly and wet her bed. After telephone conversations with the applicant, T. had also been anxious and sad. As regards S., he had become calmer and more relaxed since placed in the family home. He still had difficulties sleeping and suffered from stomach pains and vomiting before and after contact with the applicant, despite the meetings having been very structured and held in the presence of the family home father. S. showed clear signs of fear of his mother and he had expressed a fear that she would come and fetch him. Turning to D., it was observed that she had met with the applicant and that they had usually been alone, playing together. After contact with the applicant, D. used to be worried about things the applicant had told her and she regressed somewhat in her development for a few days after each meeting, wetting her bed and having difficulty sleeping. The Social Council concluded in its investigation report that the children had a right to contact with their mother but that their best interests required that the contact be limited in order to ensure their secure and positive development. 24. The applicant appealed to the County Administrative Court and requested that she be granted contact rights to her children much more often than only twice a year. She could see no reason for such restricted contact and found it to be contrary to the best interests of the children as they would forget their mother. They had lived with her until May 2005 and they had had a close and warm relationship. She agreed that the children should also see and get to know their father but considered that this should not limit her contact with them. Moreover, she referred to a custody report, dated 28 February 2005, which had been carried out in connection with the custody proceedings following the divorce from B. In the summary of the report it was stated, inter alia, that nothing had appeared to call into question the applicant’s ability as a parent to care for her three children and that personnel at the children’s day care centre had stated that the children seemed to receive the care they needed from the applicant. 25. The Social Council contested the appeal. It submitted that the children were currently in the process of developing and learning things that they had not had the opportunity to learn before and it was important that this process should not be interrupted, which was the effect of their contact with the applicant. Consultation had taken place with BUP, which agreed with the Social Council that contact restrictions were necessary in order to ensure a positive development for the children. Moreover, it noted that the last meeting between the applicant and her children, on 23 January 2007, had passed without incident, partly because eight adults had been present to ensure the children’s well-being. 26. On 2 April 2007 the County Administrative Court rejected the appeal. It noted that a supplementary custody report, dated 25 August 2005, stated that it was clear that there were major flaws in the applicant’s ability to care for her children. Thus, having regard to the fact that the children had been feeling ill and anxious in connection with and after their contacts with the applicant, and that they needed time to develop in peace in their family homes, the Social Council had been justified in restricting the applicant’s contact rights to her children to twice a year. 27. The applicant lodged an appeal with the Administrative Court of Appeal, maintaining her claims and adding that she wished to see her children at least once a month in order to ensure that they would not forget her. She felt that the family home parents had a negative attitude towards her and that this influenced the children. 28. On 11 October 2007, after having held an oral hearing, the Administrative Court of Appeal upheld the lower court’s judgment in full. It noted that BUP had been consulted by the Social Council before its decision. 29. Upon further appeal by the applicant, the Supreme Administrative Court refused leave to appeal on 10 December 2007. 30. Every three months, the Social Council reconsidered the contact restrictions and decided to maintain the restrictions in place. It would appear that the applicant did not appeal against these until the council’s decision of 11 August 2008 which she appealed against to the County Administrative Court, requesting that her contact rights to her children be increased to one visit per month to begin with and, after three months, to spend one weekend a month with them alone. She stated, inter alia, that she had moved to Norway, found a job and was in a steady relationship with a new man, and thus, felt very well. 31. In its decision, the Social Council had observed that despite the applicant’s visits having been planned and very structured, the children had still had negative reactions before and after each meeting in the form of anxiety, stomach aches, bedwetting, becoming insecure and regressing in their development. It further noted that during the visit in December 2007, the applicant’s mother had also been present which had been a positive addition. She had expressed a wish to see her grandchildren once a year, to which the council agreed. It also noted that the applicant had sent postcards and letters to the children which they appreciated. As concerned the visits, the council observed that they were always very well planned and structured with the support of the family homes and that the applicant and the children played together, ate and talked. The family homes also showed photos and films from the children’s meetings and their activities. 32. On 14 November 2008 the court, after having held an oral hearing, decided to increase the applicant’s contact with her children to four times per year, for four hours each time. It noted that the limited contact had been in place for roughly two years and had contributed to the children developing positively during this time. Although it agreed with the Social Council that continued limitations on the applicant’s contact with her children were necessary due to the children’s needs, it noted that the applicant had not interfered in an inappropriate manner in the care of her children. Moreover, the last two times they had met had generally gone well. Therefore, the court found that with the support of the Social Council and the family homes during the meetings, these could be increased to four times per year for the applicant. In its view, this would provide the children with a good contact with their mother while not jeopardising their continued development. 33. The applicant appealed to the Administrative Court of Appeal, maintaining that she wanted contact rights with her children during one weekend per month, without the presence of others, in order to ensure that she and the children would establish a good contact. 34. The Social Council contested the appeal and maintained the reasons set forth in its decision. 35. The Administrative Court of Appeal requested the Social Council to obtain the children’s point of view on increased contact with their mother. Consequently, the council met with the children individually but in the presence of their family home parents where they spoke about various things, including how they felt about seeing their mother more often. T. said that she did not want to meet her mother more than twice a year and that she did not want to be alone with her or stay with her. According to T., the meetings were very tiresome, demanding, she had a headache and could not concentrate in school before and after the meetings. She started crying and had a stomach ache during the conversation for which reason they had to cut it short. Following the conversation, she wet her bed at night, cried a lot and said that she was afraid. As for S., he did not want to talk about his mother. He reacted in a negative, frightened manner and almost started crying. He later said that he only wanted to see her once a year and that he did not want to be alone with her. It was noted that he was very anxious and afraid to meet his mother and had strong physical reactions both before and after the meetings, including stuttering, becoming aggressive and being afraid of physical contact. Turning to D. she said that she became tired when meeting her mother and siblings but that it was nice to dress up and eat good food. It was noted that D. was the most positive about the meetings with the applicant but that she did not want to meet with her alone. Moreover, the negative reactions that she had had during earlier meetings had improved somewhat. 36. In February 2009 the applicant voluntarily underwent a neuropsychological examination during two days at Stavanger University Hospital, upon request by the Social Council. The council wanted to know if the applicant suffered from a disorder or mental illness and, if so, what support she would need. The examination concluded that the applicant fulfilled the criteria for Attention Deficit Hyperactivity Disorder (ADHD) that was mainly inattentive in nature. It recommended supplementary examinations and made a number of proposals for supportive measures, including establishing fixed structures and routines in her daily life. It was also stressed that this specific impairment of her capabilities could hardly be sufficient to “disqualify her as a parent”. 37. On 7 May 2009 the Administrative Court of Appeal upheld the lower court’s judgment in full. It concluded that it would not be in the best interest of the children to increase the applicant’s contact rights further than decided by the lower court, in particular due to the negative reactions of T. and S. before, during and after the meetings. 38. According to section 1 § 2 and section 2 of the 1990 Act, compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person under 18 years of age due to ill-treatment, exploitation, lack of care or any other condition in the home and if the necessary care cannot be provided with the consent of the child’s guardian. The decision to place a child in public care is made by the County Administrative Court following an application from the Social Council (section 4). 39. Chapter 1, section 2 of the Social Services Act (Socialtjänstlagen, 2001:453; hereafter the “2001 Act”) provides that particular attention must be given to the best interests of the child when measures within the social services affect him or her. Likewise, Section 1 § 5 of the 1990 Act states that the best interests of the young person shall be decisive when decisions are made under the Act. Moreover, Section 1 § 6 of the 1990 Act prescribes that the young person’s point of view shall, as far as possible, be clarified and that the young person’s will shall be taken into account, with due consideration to his or her age and maturity. 40. According to section 11 of the 1990 Act, the Social Council decides on the details of the care, in particular, how the care is to be arranged and where the young person is to live. Moreover, under section 14, the council shall ensure that the young person’s need for contact with his or her parents or other guardians is met to the utmost possible extent. If necessary, the council may decide how this contact is to be arranged. In the preparatory works to the 1990 Act (Government Bill 1979/80:1, p. 602), it is noted that the provisions on contact restrictions are to be applied restrictively. The Social Council must have strong reasons to decide on contact restrictions between a young person and his or her parents. However, it can happen that the parents intervene in the care in an inappropriate manner. Their personal situation, for instance serious abuse or a grave mental illness, may be such that they should not see their child for a limited period of time. 41. According to Chapter 6, section 1 of the 2001 Act, care outside a young person’s home shall be provided either in a family home or in a home for care and residence. Moreover, the care should be designed to promote the affinity between the young person and his or her relatives and others closely connected to him or her, as well as contact with his or her home surroundings. 42. Contact restrictions shall be reviewed every third month by the Social Council pursuant to section 14 of the 1990 Act. Appeal against the council’s decision in this respect lies to the administrative courts (section 41).