CASE OF SÖDERBÄCK v. SWEDEN
No violation of Art. 8
R. Pekkanen
6. Mr Söderbäck was born in 1957 and lives in Stigtomta. Since 1987 he has worked as a bus driver. 7. The applicant met K.W. in 1980. They were friends but did not have a steady relationship. On 19 September 1982 K.W. gave birth to a daughter, M., of whom the applicant was the father. The applicant visited K.W. and the child at the maternity ward on one occasion. In the following months he met M. twice at K.W.’s home. He also attended M.’s christening. During the spring of 1983, he once looked after M. for about an hour. No further contacts took place between the applicant and his daughter that year. As appears from a report by the Social Council (socialnämnden) of Nyköping (see paragraph 13 below), K.W. claimed that the applicant had a problem with alcohol and considered it inappropriate that he met the daughter unless he was sober. The applicant maintained that he gave up his attempts to see M., in part because he felt obstructed by K.W., in part because his continued commitment to the daughter had been undermined by difficulties in his job. He had also had problems with alcohol. 8. According to the applicant, these problems ceased when he met A.H. in 1984. She had a two-year-old son. They started cohabiting in January 1985. 9. In 1983 K.W. met M.W. They began to live together in May 1983. K.W. and M.W. married in January 1989. 10. The applicant met his daughter once in 1984. He wished to see her more often but K.W. allegedly opposed further contacts. However, the applicant saw the daughter from time to time between 1984 and 1986 when he and A.H. took her son to his childminder, who lived close to M.’s childminder. The applicant met M. again in June 1986 when she attended A.H.’s son’s birthday party. 11. Since K.W. allegedly refused the applicant access to M., he contacted the social authorities in Nyköping in June 1987 and asked for help in arranging for access to M. In November 1987 the applicant and K.W. met once at the social welfare office to discuss the matter. K.W. expressed the wish that the applicant should not have access to his daughter yet. The responsible social worker had some further contacts with the applicant and K.W. separately in 1988, but no meetings took place between the applicant and M. As appears from the relevant diary entries, he contacted the authority concerned once every other month, at the most. 12. In November 1988, M.W. applied to the District Court (tingsrätten) of Nyköping for permission to adopt M. In February 1989 the applicant, who objected, requested the District Court to grant him access. The court decided to obtain an opinion from the Social Council of Nyköping (Chapter 4, section 10 of the Parental Code – Föräldrabalken) and to adjourn its examination of the question of access pending the outcome of the adoption proceedings. 13. The Council carried out an investigation during which it heard the applicant (Chapter 4, section 10, of the Parental Code), K.W. and M.W. In an opinion of 31 October 1989, the Council concluded that adoption of M. by M.W. would not be in the child’s best interests and, accordingly, recommended the District Court to reject M.W.’s application. In reaching this conclusion, the Council had regard to the following considerations. In the first place, it was observed that K.W. and M.W. had been living together for over six years and had been married since January 1989. It appeared that their marriage was stable and harmonious. M.W. had become M.’s psychological father and had feelings for her as though she was his own child. M.W. considered it appropriate to confirm this by adopting her and thereby secure her position within the family. The report further noted that the applicant seemed to have a stable relationship with A.H. and her son. He had affirmed that he had always had an interest in his daughter but that, for a few years, he had not had the energy to have contact with her because of his difficult situation. He was opposed to adoption and considered that his daughter had a right to know her natural father. The applicant was aware of the fact that the contact had to be developed cautiously over a certain period. In addition, the report observed: “The investigators are of the opinion that [M.], like all other children, has a right to know her descent. It is also important that she be informed as early as possible. Thus, we disagree with [K.W.’s] and [M.W.’s] opinion that it is better for [M.] to wait. On the contrary, we believe that, in all probability, it will be a traumatic experience for [M.] to be told, in her teens or as an adult, that [M.W.] is not her natural father. We also consider that [M.] has a right to get to know her father and his family. We do not share [K.W.’s] and [M.W.’s] fears that [M.] would become distant from [M.W.], although it would be natural for her to react in one way or another. However, we are of the opinion that it could be beneficial for [M.] to get to know her father and his family. Her feeling of belonging to [M.W.] does not, for that reason, have to be changed and [M.W.] will probably always be [M.’s] psychological father.  The investigators do not consider that there is question of making an assessment of who is the ‘best’ father but rather a matter related to the right to know, and to enjoy access to one’s descent. Therefore we do not find it appropriate to support M.W.’s request to adopt M.” 14. The District Court held a hearing on 12 December 1989 during which it heard the applicant (Chapter 4, section 10, of the Parental Code) and M.W. By decision of 22 December 1989, the court granted M.W. permission to adopt M. under Chapter 4, section 6, of the Parental Code. The court gave the following reasons: “The investigation in the case shows that [M.] since birth has lived with [K.W.] and that [M.W.] has taken part in the care of [M.] since she was eight months old. According to the information received, [M.] sees [M.W.] as her father. [The applicant] appears to have met [M.] occasionally in the beginning, but access has thereafter practically ceased. In these circumstances, M. cannot be considered to have such a need of contact with [the applicant] as to constitute an impediment to adoption. For these reasons, and since adoption must otherwise be considered to be in her interest, the application shall be granted.” 15. On 5 February 1991 the Svea Court of Appeal (Svea hovrätt) upheld the District Court’s decision. On 19 June 1991 the Supreme Court (Högsta domstolen) refused leave to appeal. 16. General provisions on custody and access are to be found in Chapter 6 of the Parental Code. Section 3 provides that, from birth, the custody of a child rests with the child’s parents, if they are married, or its mother, if the parents are not married. According to section 4, unmarried parents may obtain joint custody on application. Under Chapter 6, section 15, the child’s custodian shall see to it that the child’s need of access to, inter alia, a parent who does not have custody is satisfied to the largest possible extent. If the custodian objects to the access requested by a parent who does not have custody, the courts shall, on an action brought by the latter parent, determine the question of access in keeping with the child’s best interests. 17. Chapter 4 of the Parental Code contains provisions on adoption. Section 3 provides that a spouse may, with the consent of the other spouse, adopt the other spouse’s child. According to section 5(a), a child who has not attained the age of 18 may not be adopted without the consent of its parents. Such consent is however not required from a parent who does not have custody of the child. Under Chapter 4, section 6, the competent court is to examine whether adoption is appropriate and may grant permission only if it is to the advantage of the child and if the prospective adopter has brought up the child or intends to do so or if there are special reasons for the adoption in view of the special relationship between the adopter and the child. According to Chapter 5, section 8, an adopted child is for legal purposes regarded as the adopter’s child and not that of the natural parent, except where the natural parent is the adopter’s spouse. Where this exception does not apply, the rights of access enjoyed by the natural parents to the child cease by virtue of the adoption.