EGLERT v. SWEDEN
Inadmissible
David Thór Björgvinsson
The applicants, Mr Magnus Eglert and Mrs Jessica Eglert, are Swedish nationals who were born in 1966 and 1971 respectively and live in Hässleholm. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are a married couple. The second applicant has a daughter, born in 1993. According to a report by the social authorities, made after the daughter’s birth, the second applicant was not capable of forming an attachment to her daughter. The second applicant also has two sons, born in 1997 and 1998 respectively. All three children live with their respective fathers. The youngest son moved to his father after an investigation by the social authorities in February/March 2003 had led to the conclusion that his needs were not being met in the home of the applicants. Previously, the second applicant had received various forms of support from the authorities to enable her to take care of that son. The applicants also have three sons together, born in 2001, 2003 and 2006, respectively. The eldest and the youngest of the common sons live with the applicants. On 14 September 2003 the applicants’ second son, Gabriel, was born, three months prematurely. His twin brother was dead at birth. Gabriel was thereafter treated at the hospital for serious complications. He had two cerebral haemorrhages, a serious infection and a deformation of the lungs which made it necessary for him to lie in a respirator for the first six weeks. Thereafter he was given oxygen until early January 2004. On 12 January 2004 he was released from the hospital and moved home to his parents. On 30 October 2003 personnel at the hospital in Lund, where Gabriel had been treated until that date, reported to the Social Council (socialnämnden) in Hässleholm that there were doubts as to the applicants’ ability to take care of him. Similar observations were made at the hospital in Kristianstad, where Gabriel was treated after 30 October. The Council started an investigation into the matter. Having consulted hospital personnel, the applicants and the contact person who had been appointed to assist the applicants, the Council concluded that there had been several serious incidents which indicated that the applicants were unable to handle unforeseen situations. While there had been no medical problems, Gabriel had been given too much food and, as a consequence, he had had to undergo a medical examination. Moreover, the applicants were, in general, unable to understand and satisfy his needs regarding hunger, sleep and peace. The hospital personnel had had to give them a lot of support and inform them repeatedly how to take care of Gabriel. The second applicant had made numerous telephone calls to the hospital, expressing anxiety about his eating and defecating habits. On 26 January 2004 she had called the hospital several times as Gabriel had been crying for an hour during the night. She had stated that the situation was too much for her and her husband and that they wished to return him to the hospital. She was told that this was possible, but that one of the parents had to stay with him, which they were unwilling to accept. The hospital personnel were also concerned about his older brother’s situation. Having regard also to the results of the investigation in February/March 2003, the Council considered that the second applicant, who was on early retirement due to psychological problems, lacked the ability to establish a safe and secure connection to her children and to stimulate them. While the first applicant, an unemployed assistant nurse, had a better contact with the children, he was not able to take care of a child as demanding as Gabriel without the support of his wife. On 29 January 2004, having regard to the results of the investigation, the Council decided, 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; hereinafter “the 1990 Act”), to take Gabriel into public care immediately on a provisional basis. He was placed with the contact person and her husband, acting as a so-called family home. The applicants had not given their consent to this measure. The decision was confirmed by the County Administrative Court (länsrätten) in Skåne on 11 February 2004. On 19 February 2004 the Social Council applied to the County Administrative Court for a care order concerning Gabriel under section 1 § 2 and section 2 of the 1990 Act. In the application, the Council emphasised that Gabriel was a very demanding child due to the medical complications that had occurred in connection with his birth, that he had a great need of rest and calm and that he depended on those in charge of him to observe and interpret his signals properly. The Council maintained that the applicants were not able to meet Gabriel’s needs in an adequate way. The applicants stressed, for their part, that they had not had enough time to get over the difficult circumstances surrounding Gabriel’s traumatic birth, including the death of his twin brother, and that they had not been given the opportunity to prove that they were able to take care of Gabriel. Following an oral hearing held on 4 March 2004, the County Administrative Court, by a judgment of 9 March 2004, granted the Social Council’s application and issued a care order. The Court agreed with the conclusions drawn by the Council and found that there was a clear risk of impairment of the health and development of Gabriel due to the applicants’ inability to satisfy his needs. According to the court, they – in particular the second applicant – were incapable of understanding and following instructions about Gabriel’s feeding and of handling more demanding situations. It considered, with some hesitation, that he could not be cared for in the applicant’s home with various support measures, as the applicants had not been able to take care of him despite having received help six hours per day from the social authorities. As the applicants did not consent to the placement in the family home, compulsory care had to be given under the 1990 Act. On 8 June 2004 the Administrative Court of Appeal (kammarrätten) in Gothenburg, which also held a hearing in the case, upheld the County Administrative Court’s judgment. With reference to the Social Council’s report, the appellate court stressed that Gabriel needed more care and nursing than children of his age normally did and that already at the hospital there had been doubts as to the applicants’ ability to take care of him. Especially the second applicant had difficulties in understanding his needs and letting them prevail over her own wishes. According to the court, the investigation also showed that these difficulties had persisted when Gabriel had left the hospital and moved home to his parents. Among other things, there had been deficiencies in his nourishment and feeding and he had not had enough peace and rest. The court also considered that the great number of telephone calls to the hospital showed that the applicants had not been able to handle the situation. The court found that Gabriel’s father had a better parental ability than his mother. Nevertheless, the investigation did not support the conclusion that the father’s parental ability – even with the additional help from the social authorities – could compensate for the mother’s deficiencies in this respect. Further, the court observed that, at the hearing, the mother had expressed a very negative attitude towards various support measures. It concluded that it was clear that Gabriel had to be taken care of by other persons than the applicants in accordance with the Council’s care plan, namely in the family home. On 25 August 2004 the Supreme Administrative Court (Regeringsrätten) refused the applicants leave to appeal. Subsequently, the Social Council regularly – approximately every six months – reconsidered Gabriel’s need of continuous care. On 3 August 2004 the Council decided that he should remain in the family home. It observed that he had developed in a positive way in the family home. Noting that Gabriel visited his parents once or twice a week, the Council considered that they were still unable to understand his situation and see to his needs. On 8 February 2005 the Social Council again decided that the compulsory care should continue. The applicants appealed to the County Administrative Court which, on 11 April 2005, following an oral hearing, upheld the Council’s decision. The court concluded that the applicants lacked the capacity to give Gabriel the care that his great special needs required. The applicants did not appeal against the judgment. Further decisions that Gabriel should remain in the family home were taken by the Social Council on 28 June and 13 December 2005 and on 27 June 2006. The decisions were based on reports which, inter alia, concluded that Gabriel had a slow and delayed motor development and that his psychosocial development was also delayed. He needed a lot of help with most things, due to his age and his disabilities and required extensive stimulation and training in order to develop favourably. He had had regular and increased contact with his parents. While initially he had been accompanied by the foster mother on visits to the applicants’ home, he had later begun to spend time with them alone and had even stayed overnight on some occasions. 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 young person’s custodian. The decision whether to place a young person in public care is made by the County Administrative Court following an application from the Social Council. Under section 6 of the Act, the Social Council may order the immediate taking into care of a young person (“provisional care order”) if it is likely that he or she needs to be provided with care under this Act and a court decision in the matter cannot be awaited owing to the risks facing the young person’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented. A provisional care order shall be put before the County Administrative Court which shall rule on whether the order shall be upheld pending the court’s judgment regarding the application for public care.