CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 36332/97                       by Jan ENGLUND                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 20 May 1998, the following members being present:                MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 27 May 1997 by Jan ENGLUND against Sweden and registered on 4 June 1997 under file No. 36332/97;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Swedish citizen born in 1956 and resident in Norsborg, is a student. Before the Commission he is represented by Mr Lennart Hane, a lawyer practising in Stockholm.         The facts of the case, as submitted by the applicant, may be summarised as follows.   a.     The particular circumstances of the case         The applicant has a daughter M., born on 24 August 1990, of whom the mother, T.R., has sole custody. The applicant has regular access to M.         On 11 September 1996 the chairman of the Social District Council (kommundelsnämnden) of Sjödalen-Fullersta, ("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 M. into public care immediately on a provisional basis. On 20 September 1996 the County Administrative Court (länsrätten) of the County of Stockholm confirmed the Council's decision. The Council later applied to the court for a care order concerning the daughter under Section 1, subsection 2 and Section 2 of the 1990 Act.         Allegedly, the applicant was given no information as to the basis for the Council's provisional decision and its application for a care order.         On 21 October 1996 the County Administrative Court held an oral hearing in the case, at which T.R., her lawyer, the child's counsel, representatives of the Council and the Council's lawyer were present and heard. Three witnesses were heard at the hearing. Also the applicant, who was not a party to the proceedings, appeared and declared that he wished to attend the hearing. After asking the parties, the court rejected the applicant's request.         By judgment of 25 October 1996, the County Administrative Court granted the Council's application and ordered that M. be taken into public care.         T.R. applied to the Administrative Court of Appeal (kammarrätten) of Stockholm. The applicant requested to be heard at the hearing. By letter of 20 November 1996, the court informed the applicant that he was not a party to the case and therefore could not demand to be heard at the hearing.         After having held a hearing on 27 November 1996, without the applicant being present, the appellate court, by judgment of 9 December 1996, quashed the first-instance judgment, finding   that the compulsory care of the child was not supported by sufficient reasons.         It appears that, in simultaneous proceedings before the District Court (tingsrätten) of Huddinge, the applicant had applied for custody of M. Later, he adjusted his claim to concern only access to the daughter.   b.     Relevant domestic law and practice         Section 1, subsection 2 and Section 2 of the 1990 Act state that compulsory 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 rights over a child are vested with the custodian pursuant to Chapter 6, Section 2 of the Parental Code (föräldrabalken). A parent who does not have custody of a child has no standing in proceedings concerning public care of the child (cf., e.g., Supreme Administrative Court judgment of 15 February 1972, RÅ 1972 S 32).     COMPLAINTS         The applicant complains that his rights as a parent were violated in the public care proceedings. He states that he had no access to the documents in the case, that he had no standing in the proceedings and that he was not heard by the courts. He does not invoke any Articles of the Convention.     THE LAW         The applicant complains that his rights as a parent were violated in the public care proceedings.         The Commission finds that the applicant's complaint raises an issue under Article 8 (Art. 8) of the Convention which provides the following:         "1. Everyone has the right to respect for his private and       family life, his home and his correspondence.         2. There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society in the interests of national security, public       safety or the economic well-being of the country, for the       prevention of disorder or crime, for the protection of       health and morals, or for the protection of the rights and       freedoms of others."         The Commission recalls that family life does not require that the members of the family live together where there exist regular contacts and a certain dependency (cf. No. 14501/89, Dec. 6.1.92, D.R. 72, p. 118). Furthermore, the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life even when the relationship between the parents has broken down   (Eur. Court HR, Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156, para. 58). The Commission finds that the relationship between the applicant and his daughter falls within the concept of "family life" as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention. Therefore, it must be considered whether there has been any interference with the applicant's right to respect for his family life.           In this connection, the Commission notes that the applicant's family life consists of regular access to his daughter. If a parent is denied access to a child taken into public care there would be an interference with the parent's right to respect for family life as protected by Article 8 para. 1 (Art. 8-1) of the Convention. In the present case, however, the decisions of the Council and the County Administrative Court to take the applicant's daughter into public care did not deny the applicant his access to M. Moreover, the applicant does not allege that the decisions restricted that access. Thus, it appears that the applicant's family life was not affected by the decisions in question. The Commission finds, therefore, that the applicant's family life has not been interfered with within the meaning of Article 8 (Art. 8) of the Convention.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         The Commission considers that the applicant's complaint falls to be considered also under Article 6 para. 1 (Art. 6-1) of the Convention which, in so far as relevant, provides as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a ... hearing by [a] ...       tribunal ..."         The Commission recalls that in order for Article 6 para. 1 (Art. 6-1) to apply to the proceedings in question it must first be ascertained whether there was a dispute over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law (cf., e.g., Eur. Court HR, W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 32-33, para. 73).         The applicant has a right of access to his daughter. However, the Council's and the County Administrative Court's decisions did not involve an examination of that right. Moreover, not being the custodian of his daughter, the applicant has no standing, under Swedish law, in proceedings concerning public care. Consequently, his civil rights were not determined in the proceedings in question and Article 6 para. 1 (Art. 6-1) of the Convention does not apply in the present case.         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.            M.-T. SCHOEPFER                            J.-C. GEUS          Secretary                                President    to the Second Chamber                    of the Second Chamber