KOSKINEN v. SWEDEN
Inadmissible
Nicolas Bratza
The applicants, Reino and Gunhild Koskinen, are Swedish nationals, who were born in 1928 and 1933 respectively and live in Västervik. They were represented before the Court by Ms L. Isaksson, a lawyer practising in Umeå. The respondent Government were represented by Ms E. Jagander, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants have a daughter, K. In 1982 she gave birth to a son, M., of whom she has sole custody. However, for most of his life, M. has been living with the applicants. In 1986 K. gave birth to a second son who was placed in public care in 1989. In April 1992 K. picked up M. at the school he attended in Västervik and brought him to Landskrona, where she had taken up residence. The applicants reported this event to the Social Council (socialnämnden) in Landskrona and requested it to take action in order to have M. returned to them. The Council started an investigation of the matter. In 1992 and 1993 several psychologists and social welfare officers submitted opinions which did not question the applicants’ ability to assume the care and custody of M. but rather tended towards finding that M. would be better off living with the applicants. On 7 September 1992 the Council decided to take no action. The social welfare officers in charge of the matter considered that M. should live with his mother, his legal custodian. According to an opinion issued by the Children’s Psychiatric Clinic (barn- och ungdomspsykiatriska kliniken) in Landskrona on 17 June 1992, it was of utmost importance that M. was given a permanent home and that this should be with his mother. In February 1993 the applicants took M. from K. in Landskrona and went into hiding. In an application to the County Administrative Court (länsrätten) in Malmö, K. requested that M. be returned to her. On 9 March 1993 the chairman of the Social Council in Landskrona decided to take M. into compulsory public care immediately due to the applicants’ illegal abduction of him. This decision was not enforced, however, as the applicants were still in hiding. On 16 March 1993 the County Administrative Court held an oral hearing in the case. K. attended, assisted by public counsel. Also officers of the Social Council were heard. The applicants were not present or represented. K. stated, inter alia, that the applicants had removed M. from his home without her permission and had refused to return him. She also claimed that the applicants had physically assaulted him and exerted pressure on him. The social welfare officers stated that M. suffered from the conflict between his mother and his grandparents and that it was not possible to discuss with the applicants the possibility of returning M. to his mother. They also considered that M. needed psychiatric treatment in accordance with a plan which had been drawn up by the Social Council and to which K. had consented. Further, due to M.’s state of health and the risk that he be removed to Finland, it was allegedly urgent that he be returned to his mother. On 17 March 1993 the Court decided that M. be taken care of immediately in accordance with chapter 21, section 10 of the Parental Code (Föräldrabalken) and ordered the police authorities in Landskrona to enforce the decision. It left it to the Social Council to decide on the proper measures with regard to the care. In its reasoning, the Court found that the matter was urgent due to M.’s health and as there was a risk that M. could be removed out of the country. On the same day the Court quashed the Council’s decision of 9 March to take M. into compulsory public care. The applicants appealed to the Administrative Court of Appeal (kammarrätten) in Gothenburg, stating that it would be detrimental to M. to be separated from his grandparents. The Court held an oral hearing, where the applicants, though absent themselves, were represented by court-appointed counsel. By a decision of 30 November 1993 the appellate court rejected the applicants’ appeal. It generally agreed with the reasoning of the County Administrative Court and added that it had not been possible to enforce that court’s decision since the applicants were still in hiding with M. The applicants lodged an appeal, but it was dismissed by the appellate court on 16 February 1994 for having been lodged out of time. On 29 September 1994 the Supreme Administrative Court (Regeringsrätten) rejected an application for restoration of the expired time. On 27 December 1993 the applicants and M. were apprehended in Finland and M. was returned to his mother in Sweden. The Social Council decided to prohibit all access between the applicants and M. On 10 January 1994 the Social Council refused the applicants’ request to be informed of M.’s telephone number, referring to the confidentiality applicable to such information under the Secrecy Act (Sekretesslagen; 1980:100). The applicants did not appeal against the decision. On 28 January 1994 the applicants requested access to M. and also wished to be informed of the results of possible psychiatric examinations of him. By a letter of 9 March 1994 a social welfare officer informed the applicants that K. opposed access and that the Social Council did not consider it to be in the best interests of M. to allow meetings with the applicants at that time, as such contact would have disturbed the developing relationship between M. and his mother. This opinion was supported by a psychologist at the Children’s Psychiatric Clinic in Landskrona, who had been consulted in the matter. The applicants were also told that information on psychiatric examinations was confidential and, thus, could only be disclosed to the custodian. On 19 April 1994 the Social Council decided not to initiate court proceedings with a view to establishing access between the applicants and M. and to reject the request for information. The applicants did not appeal against the Council’s decision. On 7 June 1994 the County Administrative Court decided, at the request of K., to strike out the case relating to K.’s request in February 1993 for the return of M. to her, noting that M. had already been returned to her. The Court observed that the applicants’ counsel had not commented on the strike-out request, although he had been notified thereof. The first applicant appealed against the strike-out decision and also requested that he and his wife be awarded custody of M. On 12 July 1994 the Administrative Court of Appeal dismissed his action, finding that he lacked standing to appeal against the decision in question and that the Court did not have jurisdiction to decide on transfer of custody. On 27 September 1994 the Supreme Administrative Court refused the first applicant leave to appeal. On 21 March 1996 the same court rejected his application for a reopening of the proceedings. According to the applicants, K. has repeatedly been told by social welfare officers that no access, correspondence or telephone contacts between M. and the applicants would be allowed until M. reached the age of majority (i.e. until July 2000). Swedish law does not afford grandparents any rights over their grandchildren. The rights over a child are normally vested in its parents or custodians who, according to chapter 6, section 15 (1) of the Parental Code, shall see to it that the child’s need of access to a person who is particularly close to the child is satisfied to the utmost possible extent. As concerns the possibility of instituting court proceedings, section 15 (3) provides that such proceedings may be brought by the Social Council, if access requested by somebody else than the natural parents is denied by the child’s custodians. The court shall determine the question of access in keeping with the child’s best interests. Also, under section 15 (4), the court shall have regard to the risk of the child being abused, being illegally removed or detained, or otherwise suffering harm when contacts take place with the person requesting access. According to the preparatory documents to the above legislation (see Government Bill 1981/82:168, pp. 43 and 76), it has not been deemed appropriate that any person who claims to have a particularly close relationship to a child should be entitled to bring an action for access before the courts. Therefore, contrary to what is the case with the child’s parents, the Social Council has the exclusive right to bring such an action. The Council makes use of this right only in rare cases. In practice, when the social authorities are informed, for instance by the person concerned, that the child’s custodian fails to ensure that the child can meet with a person to which it has a close relation, the Council shall investigate whether such a contact can be considered as being in the best interests of the child and, if that is the case, take action with a view to establishing access, ultimately by requesting a court decision. Similar rules apply to the question of custody. Thus, under chapter 6, section 8 of the Parental Code, the custody of a child may be transferred to a person who has constantly cared for the child, if this is deemed to be in the child’s best interests. The transfer of custody is decided by the District Court upon application by the Social Council. There does not appear to be any Swedish case-law on the question whether the person requesting access or custody has standing to appeal against a decision by the Social Council not to institute court proceedings in the matter. When the child is in the home of another person, chapter 21, section 7 of the Parental Code gives the custodian an opportunity to apply to the County Administrative Court for a decision that steps be taken to transfer the child to him or her. If there is a risk of the child being removed out of the country or if the matter is urgent for some other reason, the court may, under chapter 21, section 10, order that the child be taken care of immediately in the manner it considers appropriate.