AS TO THE ADMISSIBILITY OF

                      Application No. 11704/85
                      by Eva KROL
                      against Sweden


        The European Commission of Human Rights sitting in private
on 7 October 1987, the following members being present:

              MM. C.A. NØRGAARD, President
                  S. TRECHSEL
                  F. ERMACORA
                  G. SPERDUTI
                  M.A. TRIANTAFYLLIDES
                  E. BUSUTTIL
                  A.S. GÖZÜBÜYÜK
                  A. WEITZEL
                  H.G. SCHERMERS
                  H. DANELIUS
                  G. BATLINER
                  H. VANDENBERGHE
             Mrs.  G.H. THUNE
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 13 August 1985
by Eva Krol against Sweden and registered on 21 August 1985 under file
N° 11704/85;

        Having regard to:

     - the decision by the Commission's Rapporteur of 30 October 1985
       to request information from the Government,

     -  the Government's reply dated 20 November 1985 and the
        applicant's comments dated 27 November 1985,

     -  the first report provided for in Rule 40 of the Rules of
        Procedure of the Commission

     -  the Commission's decision of 3 March 1986 to communicate the
        application to the Government for written observations on the
        admissibility and merits,

     -  the Government's written observations dated 15 May 1986, and
        the applicant's observations in reply dated 26 June 1986,

     -  the Government's letters of 18 August and 22 December 1986,
        and 30 April and 18 August 1987,

     -  the second report provided for in Rule 40 of the Rules of
        Procedure;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as they appear from the parties'
submissions, may be summarised as follows:

        The applicant is a Polish citizen born in 1950 and resident at
Stockholm.  She is represented before the Commission by Mr.  Lennart
Hane, a lawyer practising in Stockholm.

        On 18 April 1985 the applicant gave birth to a female child,
Maria.

        Provisional care order

        On 24 April 1985 the Deputy Chairman of the Social District
Council No. 5 (sociala distriktsnämnden nr 5) in Stockholm decided
pursuant to Section 6 of the 1980 Act with Special Provisions on the
Care of Young Persons (lagen med särskilda bestämmelser om vård av
unga) to take the child into care immediately (a provisional care
order).

        The decision was made because the Deputy Chairman of the
Social District Council considered that there was a serious risk to
the child's health and development if she were to remain with the
mother in the hospital.  It was thought that the applicant was still
suffering from a mental illness and therefore unable to take care of
the child.  At this time it had not been established that Mr.  G.D. was
the father of the child.  In March 1985 the applicant had said that she
was made pregnant by a man who had raped her.  In any case it was
considered that Mr.  G.D. was not capable of taking care of such a
small child on his own.  At that time the mother alone had the legal
custody of the child.

        The decision by the Deputy Chairman was confirmed by the
Social District Council on 30 April 1985.

        On the day the provisional care order was issued Maria was
moved to another hospital.  Two days later she was placed in a
temporary foster home.

        Section 21 of the 1980 Act prescribes that a provisional
care order enters into force at once.  As soon as the Court has made
a decision on the matter whether the child shall remain in care the
provisional care order is no longer valid.  The Court has power to
order that its decision on care shall be enforced at once.  If such an
order is not made, the Court's decision cannot be enforced until it
has acquired legal force.

        The provisional care order was submitted to the Regional
Administrative Court (länsrätten) of Stockholm for confirmation.

        When the Regional Administrative Court examined the case, the
applicant and Maria were represented by their legal representatives,
the applicant by Mrs.  Birgitta Alexandersson and Maria by Mr.  Ingemar
Drogell.  Both are members of the Swedish Bar Association.  On
3 May 1985 the Regional Administrative Court confirmed the provisional
care order.

        The applicant appealed to the Administrative Court of Appeal
(kammarrätten) of Stockholm which on 31 May 1985 rejected the appeal.

        The applicant appealed to the Supreme Administrative Court
(regeringsrätten) which on 11 July 1985 struck the case off its list
of cases as the Regional Administrative Court had in the meantime
decided that the applicant's child should be taken into care and the
provisional care order was therefore no longer valid.

        Decision to deny access

        On 14 May 1985 the Social District Council decided to
prohibit any contact between the applicant and her child and not to
disclose the child's whereabouts to the applicant.

        On 27 August 1985 the Regional Administrative Court rejected
the applicant's appeal against the Council's decision and gave the
following reasons for its decision:

"On 18 June 1985 the Court ordered that Maria Therese Krol
should be taken into care under Section 1 of the
(1980 Act).  Maria Therese is now living in a family home.
The purpose of the care plan is that she may grow up in a
stable and safe environment, that she may have access to the
different kinds of support and assistance which are offered by
society, that she may have a close relationship to a guardian
and access to other grown up people, children and a normal
social network.  Finally, she will be staying at a place which
is not to be revealed until her legal custodian has shown that
she is willing to collaborate with the social authorities and
until there is no risk that she endangers the purpose of the
care.  From what has emerged when the girl was taken into
care and from the investigation concerning the intended care
the Court finds that the applicant is closely attached to
her cohabitee Mr.  G.D. who has acted without self-control
and with threats.  These threats could also be aimed at
those who are taking care of the child at present.  The
Social District Council has written to the applicant on
several occasions during the summer in order to establish
contact with her and discuss the future of her child.  The
applicant does not answer the phone nor does she answer
letters.  As the matter of taking the child into care is
still being examined by the Administrative Court of Appeal
and the situation therefore is still very emotionally
infected, the Regional Administrative Court finds that it
cannot be excluded that the care of the child might be
disturbed if the applicant gets permission to see her
daughter and if the whereabouts of the child are revealed.
The Regional Administrative Court therefore concludes that
there are strong reasons for the standpoint that the
custodian shall be prohibited until further notice from
seeing the child and that the whereabouts of the child are
not to be revealed to the mother, in any case not until the
matter of taking the child into care has been finally
settled and the mother and Mr.  G.D. have obtained a better
understanding of the actions which have been taken.  The
appeal should therefore be rejected."

        Care order

        On 15 May 1985 the Social District Council applied for the
Regional Administrative Court's decision to take Maria into care.  The
Council alleged that the applicant's mental illness and the
conditions in her home involved a considerable risk for the child's
health and development.  The Court held an oral hearing in camera.
Witnesses were heard.

        On 18 June 1985 the Court granted the Council's application.
In its judgment the Court summarised its reasons as follows:

"From what has emerged in the case it must be concluded
that the applicant is suffering from a mental illness of
long duration but that the prognosis for the illness is good.
However, no reliable statement can be made concerning the
future course of the illness.  The applicant has not been
given a clean bill of health but has been conditionally
discharged from the Långbro hospital.  From the facts
available it must be concluded that she is strongly dependent
on Mr.  G.D. who claims that he is the father of her child and has
shown that he is very negative to the assistance offered.
When considering all aspects of the case the Court therefore
finds that the assistance that can be offered to the
applicant on a voluntary basis must be disregarded.

Even if the applicant agreed at the hearing to obtaining
assistance from a person specially appointed to assist her
(stödperson), provided that this person is not appointed by
the social authorities, the Court does not find this consent
very convincing considering that a similar proposal has been
clearly rejected by Mr.  G.D.  It is said in the report that
the applicant, after the childbirth, has been aware that she
is suffering from a mental illness and that she is unable to
take care of the child herself but that 'Mr.  G.D. is a kind
man and could take care of the child'.  Even if the
applicant, as Dr.  N has stated, would be able to take care
of the child under optimal conditions it must be borne in
mind that at the present time the applicant and Mr.  G.D. are
rejecting the assistance that could be offered to them.

The Court also finds, considering what Mr.  G.D. has stated,
that the applicant, due to her health and other social
conditions, also in a long-term perspective will not be able
to take care of her little child without assistance.
The Court therefore finds that there is a danger to the
child's health and development as described in Section 1,
sub-para. 1, unless the child is taken into care.  The
application for taking the child into care under the 1980
Act should therefore be granted."

        The above judgment did not include any order as to its
immediate enforcement.  Consequently the judgment was not enforceable
until it had acquired legal force.  However, the child was kept in
care.

        The applicant appealed to the Administrative Court of Appeal,
both against the care order and the prohibition of contacts with the
child.  On 8 October 1985 the Administrative Court of Appeal decided
to revoke the judgments of the Regional Administrative Court
concerning both the care order and the order relating to contacts
with the child.

        The Administrative Court of Appeal had held an oral hearing.
As new witnesses were heard a former chief physician, Mr.  R.S., who
also submitted a written statement to the Court, and Mrs.  A.W., who is
a midwife.  The Court concluded that the facts presented in the Court
showed that the applicant now was healthy and that the illness from
which she had suffered no longer was a cause to take the child into
care, nor were her relations with Mr.  G.D.

        The Social District Council then appealed to the Supreme
Administrative Court referring to new medical certificates.  In the
meantime the child was kept in care.

        On 15 November 1985 the Deputy Chairman of the Social District
Council decided to issue a provisional care order relating to the
child pursuant to Section 6 of the 1980 Act.

        On 18 November 1985 the Supreme Court refused to grant leave
to appeal.

        On 19 November 1985 the Social District Council decided to
terminate the provisional care and, on 20 November 1985, the child
was returned to the applicant.

        Following a complaint the Parliamentary Ombudsman (justitie-
ombudsmannen) decided on 8 December 1986 to request the Chief Public
Prosecutor (överåklagaren)  of the Prosecuting Authority of Stockholm
to conduct a preliminary criminal investigation both against the
presiding judge of the Regional Administrative Court and the Social
District Council.  In his decision the Parliamentary Ombudsman stated
inter alia the following:

"It appears from Section 8 of the 1980 Act that a
provisional care order ceases to be valid when the court
decides on the question of care.  This provision, which
entered into force on 1 July 1974, was introduced  as a
result of the uncertainty which had prevailed in the
question  as to whether a provisional care order continued
to be valid after the court had decided on the question of
care.

The Regional Administrative Court of Stockholm ordered in
its judgment of 18 June 1985 that Maria should be taken into
care pursuant to the 1980 Act.  The judgment did not contain
any order as to the immediate enforcement of the order.  The
President of the Court has stated that this was the result
of negligence.

   ...

In its present state, it appears from the investigation that
(the President of the Court) has been negligent since he has
not inserted in the judgment the decision about immediate
enforcement which the Court appears to have agreed on.

The President has also not been careful enough when, during
the examination of the appeal against the decision on the
prohibition of contact, he did not consider that on the
facts of the case such a prohibition could not lawfully be
maintained.

The circumstances are such that there are reasons to institute
a preliminary criminal investigation as regards the question
whether in view of these facts (the President) is guilty of
the offence of negligent exercise of public power.

   ...

(The Deputy Chairman) of the Social District Council ordered
in a decision of 15 November 1985 ... that Maria should be
taken into care immediately pursuant to Section 6 of the 1980
Act.  The decision appears to have been the result of the fact
that the Administrative Court of Appeal decided to quash the
decision on care under the 1980 Act.  It can be questioned
whether the decision had any basis in law.  Maria has been in
care under this decision until 20 November 1985 when she
returned home.

As a result of the negligence which has occurred in the Social
District Council, as the result of the measures of the
Council, the child has been in care against the will of the
custodian and without legal basis for such care.  The
circumstances are such that there is reason to institute a
preliminary criminal investigation concerning negligent exercise
of public power."

        Subsequently the Chief Public Prosecutor recommended to the
Parliamentary Ombudsman that the presiding judge of the Regional
Administrative Court as well as the Deputy Chairman of the Social
District Council be informed that they were under suspicion of having
committed offences when dealing with the applicant's case.  As regards
the Deputy Chairman the proposed charge is misuse of public power and,
as regards the President of the Court, negligent exercise of public
power.

        In a decision of 8 July 1987 the Parliamentary Ombudsman
decided not to institute any criminal proceedings.  In the decision
the Ombudsman concluded:

"Maria has been in care from 18 June to 15 November 1985
without legal basis as a result of the fact that the
Regional Administrative Court's omission to order immediate
enforcement in its judgment of 18 June 1987 has not been
observed.  There is of course reason to look seriously at
what has happened.  In connection with the violation of

justice which has occurred it must, however, be taken into
account that the care, at least until the Administrative
Court of Appeal delivered judgment, has been in accordance
with the intention of the Regional Administrative Court and
has thus objectively not been without foundation."

        As regards the omission of the Regional Administrative Court
to order that its judgment should be immediately enforceable the
Ombudsman found it established that the Court had examined the issue
and that it was the Court's intention that the judgment should be
enforceable immediately.  However, the President of the Court had by
negligence not included in the judgment an order concerning immediate
enforcement.  The Ombudsman considered that this negligence could not
be regarded as gross negligence and there were consequently not
sufficient reasons for instituting criminal proceedings against him.

        The Ombudsman further criticised the Social Council for not
having observed that the Regional Administrative Court's judgment did
not include an order as to the immediate enforcement of the judgment.
It was assumed that the Social Council would amend its routines to
avoid such mistakes in the future.

        As regards the decision by the Deputy Chairman of the Social
District Council of 15 November 1985 to take Maria into care
immediately under Section 6 of the 1980 Act, the Parliamentary
Ombudsman found that the investigation had shown that new
circumstances - the contents of three medical certificates indicating
inter alia that a return of the child to the applicant would
jeopardise the child's health and development - had occurred after the
judgment of the Administrative Court of Appeal, and that consequently
there were no reasons to consider that the Deputy Chairman had
disregarded the provisions of the 1980 Act when he made the
provisional care order.  There were thus no reasons to institute
criminal proceedings against the Deputy Chairman.


COMPLAINTS

1.      The applicant alleges that the removal of her new born child,
when she was recovering from a ceasarean operation, was inhuman and
degrading treatment in breach of Article 3 of the Convention.

2.      The applicant submits that she has not had a fair and public
hearing for the determination of the question whether the provisional
removal of her child was lawful and just.  She alleges a breach of
Article 6 of the Convention.

3.      The applicant alleges that the provisional removal of her
child while she was still in hospital is a breach of Article 8 of
the Convention.

4.      The applicant, as a practising Catholic, also alleges that the
provisional bereavement of her child is a violation of her freedom of
religion.  She has allegedly been prevented from baptising her child as
quickly as prescribed by her faith.  The applicant alleges a violation
of Article 9 of the Convention.

5.      The applicant moreover alleges that her right in Article 12
of the Convention to form a family has been violated.

6.      Finally, she alleges a breach of Article 13 of the Convention.
It is submitted that no remedy was available to her since the Supreme
Administrative Court removed the case from its case-list without
determining the merits.


PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced with the Commission on
13 August 1985 and registered on 21 August 1985.

        By letter which arrived on 28 October 1985, the applicant
requested that the Commission take immediate action in the case in
view of the fact that the Administrative Court of Appeal had revoked
the original care order and the Social District Council nevertheless
did not return the child to the applicant.

        On 30 October 1985 the Rapporteur of the Commission decided
pursuant to Rule 40, para. 2, sub-para. a, of the Rules of Procedure
of the Commission to request information from the Government
concerning the procedure before the Supreme Administrative Court and
the reasons for keeping the child in care.

        The Government's reply was dated 20 November 1985 and the
applicant's comments were dated 27 November 1985.

        On 3 March 1986 the Commission decided to communicate the
application to the Government for written observations on the
admissibility and merits of the application.

        The Government's observations were received by letter dated
15 May 1986 and the applicant's observations in reply were dated
26 June 1986.  A further letter from the Government was received on
18 August 1986.  On 22 December 1986 the Government submitted a
further letter enclosing the decision of the Parliamentary Ombudsman
of 8 December 1986.  Further letters from the Government were dated
30 April 1987 and 18 August 1987, the latter enclosing the decision of
the Ombudsman of 8 July 1987.


SUBMISSIONS OF THE PARTIES

A.    The Government

1.    The Facts

        The applicant came to Sweden from Poland in 1980 with her son
Robert, born in 1971.  Her marriage with Robert's father in Poland had
been dissolved.  In Poland she had been treated for psychiatric
illness in hospitals on a few occasions.  Since 1981 she has been in
contact with psychiatrists regularly for psychiatric treatment.  From
April to July 1984 she was admitted to a psychiatric hospital for
compulsory treatment.  Her son Robert attends a public school close to
Stockholm.  The social authorities have been in contact with the
applicant for several years, inter alia to give her financial
assistance.  In 1984 the applicant met Mr.  G.D.  He is 74 years old.
He came to Sweden from Hungary in 1956.  He has been married in Sweden
but the marriage was dissolved in 1982.  He is Maria's father.

        As soon as the social authorities had received information
that the applicant was pregnant they considered the possibility of
taking the child in care.  A contact was taken with the chief
physician, Dr.  J.K., in order to discuss the applicant's ability to take
care of the child herself.  The psychiatrist, Dr.  G.N., was also
informed.  There was a risk for a psychosis in connection with the
delivery.  The social authorities intended to make a close
investigation, since they found that there was a considerable risk to
the health and development of the child if she were to be left with the
applicant and Mr.  G.D.

        The day after the child was born the applicant was informed
that there was to be an investigation concerning the conditions of the
new-born child.  The social authorities suggested that a contact
should be established between the family and a social worker appointed
by the social authorities.  The applicant declared that she did not
wish to have any contact with the social authorities.  On the same
day Mr.  G.D. was arrested for having threatened, among others,
Dr.  J.K. Mr.  G.D. was also informed about the investigation.  He
declared that he was unwilling to collaborate with the social
authorities.

        After the care order had been revoked the Social District
Council suggested a meeting with the applicant on 22 October 1985 in
order to plan how the meetings between her and the child should be
arranged pending the decision of the Supreme Administrative Court.
When the day came, the applicant informed the Council that she was
unable to take part in the meeting.

        She did not wish to arrange another appointment.  Later she
told the Council that she did not want to meet any of its
representatives without her counsel, Mr.  Hane, being present.  Later
in October a meeting was held and a day was decided when the applicant
was to see her child in Stockholm.  The child was brought to Stockholm
by her foster parents from Skåne in the south of Sweden.  The
applicant however, did not turn up on this occasion.  None of the
parents could be found to see the child.

        On 11 December 1985 the child's former foster parents asked
the Parliamentary Ombudsman (justitieombudsmannen) to examine the way
in which the Administrative Court of Appeal had handled the case and
its decision of 8 October 1985.  On 14 April 1986 the Ombudsman stated
that he found no reason to take any action against the Administrative
Court of Appeal.  However, the Ombudsman subsequently started an
investigation ex officio to examine how the Social District Council
handled the matter.

2.      The Admissibility

        The applicant has alleged violations of Articles 3, 6, 8, 9, 12
and 13 of the Convention.  However, these allegations were made before
the final decision by the Supreme Administrative Court and the return
of the child to her parents.  In his letter to the Commission of 27
November 1985 the applicant's counsel seems to concentrate on the
effects of the decision to take the child into immediate care.

        The Government have no objection against the application with
regard to the six months' rule.  It thus remains to be examined whether
the complaint falls within the scope of the Convention, whether the
applicant has exhausted domestic remedies or whether the application
should be rejected as being manifestly ill-founded.

2.1     Article 3 of the Convention

        With respect to the complaint under Article 3 in relation to
the decision to take the child immediately into care domestic
remedies could be said to be exhausted.  That decision was a
preliminary measure which became surpassed by the judgment of the
Regional Administrative Court of 18 June 1985.  This also explains why
the Supreme Administrative Court struck the case off its list.
However, since the Parliamentary Ombudsman has started an
investigation of the measures taken by the Social District Council it
may be that further actions will be taken.  The Government must
therefore make an objection with reference to the domestic remedies'
rule.

        This objection applies even more in case the alleged violation
of Article 3 is related to the other meaures taken by the Swedish
authorities.

        In case the Commission does not share this view, the
Government maintain that the complaint is manifestly ill-founded
(cf. below).

2.2     Article 6 of the Convention

        The complaint with respect to Article 6 is based on the
allegation that "no fair and public hearing has been held for deciding
on the legality and justness of the provisional bereavement of the
child at the time when the mother was in the hospital".

        The Government have in other cases before the Commission
questioned whether decisions on care fall within the scope of Article
6 of the Convention.  Even if the Commission should not share this
view, the present complaint falls outside the scope of the Convention.
The complaint refers to preliminary measures pending a court ruling
on an application to submit the child to care under the 1980 Act.
However, Article 6 does not require that the guarantees laid down in
that Article should be observed in all details also with respect to
preliminary or provisional measures taken within the scope of a more
overriding matter.

        Even if the Commission should consider that the preliminary
matter decided by the competent authorities concerned the applicant's
civil rights, the question remains whether the decision concerned a
"determination" of these civil rights.  The Government are of the
opinion - in case the matter concerns civil rights at all - that a
"determination" was not made through the preliminary measure taken by
the Social District Council or the Regional Administrative Court on
3 May 1985.  If a "determination" was made at all, this determination
was made by the Regional Administrative Court after a hearing on
18 June 1985.

        The Government are thus of the opinion that the complaint
should be rejected as being incompatible ratione materiae with the
provisions of the Convention.

2.3     Article 8 of the Convention

        The Government maintain that domestic remedies have not
been exhausted.  Reference is made to the investigation by the
Parliamentary Ombudsman and to the fact that the applicant has not
tried to have the measures taken by the Social District Council
before 8 October 1985 or after that date examined by competent organs
with a view to assessing whether the measures taken amount to misuse
of public power or negligent exercise of public power.  It seems as if
the counsel for the applicant is aware of this, since he assumes that
the possibilities for mother and child to be granted compensation by
Swedish courts are very small.

        Under all circumstances the Government maintain that the
complaint under Article 8 is manifestly ill-founded (see below).

2.4     Article 9 of the Convention

        The Government contend that domestic remedies are not
exhausted, since the matters under Article 9 - as far as the
Government have been able to establish - were never raised before the
Swedish authorities.  In all events the complaint must be manifestly
ill-founded.

2.5     Article 12 of the Convention

        In the Government's opinion no separate issue arises under
Article 12.  The applicant has not been prevented from forming a
family.  A decision to take a child into care is in accordance with
the Strasbourg case-law considered to fall within the scope of
Article 8.  Since no other information is submitted to substantiate
the applicant's allegation, the complaint under Article 12 must be
considered manifestly ill-founded.

2.6     Article 13 of the Convention

        It appears that the complaint under Article 13 is based upon
the fact that the Supreme Administrative Court struck from its list
the case concerning the preliminary taking of the child into care.
However, this matter was by then consumed by the superseding decision
by the Regional Administrative Court to take the child into care.  The
complaint should therefore be rejected as being incompatible ratione
materiae with the provisions of the Convention.

        In any case the applicant did in fact have a remedy, since the
provisional decision was examined both by the Regional Administrative
Court and the Administrative Court of Appeal.  This should satisfy the
requirements of Article 13, in particular taking into consideration
that the decision appealed against was a preliminary measure.
Alternatively, this part of the application should therefore be
rejected as manifestly ill-founded.

3.      The Merits

3.1     Article 3 of the Convention

        The immediate decision as well as the judgment of the Regional
Administrative Court were made in order to prevent dangers to the
health and development of the child as prescribed in the 1980
Act.  The applicant's illness and behaviour gave the social
authorities reason to believe that such a danger might occur, if the
applicant left the hospital with the child.  She had in fact herself at
that stage questioned her own capacity to look after the child but
declared that Mr.  G.D. had this capacity.  It appears that it was at
that time impossible for the social authorities to establish a
trustful way of collaboration in order to assist the applicant.  Under
these circumstances the Government maintain that the decision to take
the child into care immediately was neither inhuman nor degrading
treatment within the meaning of Article 3 of the Convention.

3.2     Article 6 of the Convention

        The Government contend that this part of the application is
inadmissible and abstain at the present stage of the proceedings from
further comments.

3.3     Article 8 of the Convention

        The Commission has constantly held that decisions to take
children away from their parents, placing them under care, is an
interference with Article 8 of the Convention.  But in all previous
cases the Commission also held that the circumstances of the case, the
facts about the children's situation, and the investigations showed
that the authorities' decisions were justified under paragraph 2 of
Article 8, by the need to care for the health of the children.

        Against this legal background, and taking note of the facts
regarding the situation of the new-born child and of the reasons as
stated by the Regional Administrative Court, the Government maintain
that the actions taken by the Social District Council in May 1985 and
the Regional Administrative Court on 18 June 1985 were justified and
in accordance with the Convention as well as with Swedish law.

        The Government find it rather obvious that also when a court's
judgment or decision on matters of taking a child into care is
reversed by a higher court, this does not mean that the decision or
judgment of the lower court has been in violation of the Convention.
These questions are often very difficult to decide and it is natural
that different opinions can exist.  In the present case it is obvious
that the matter was of a complex nature.  To illustrate this the
Government refer to the fact that Dr.  N in a written statement on
24 October 1985 - a statement to which the Social District Council
referred in appealing against the judgment of the Administrative Court
of Appeal - said with reference to the applicant that it was so
difficult to assess her ability to look after a child that one assumes
responsibility for the child being handed over to the mother unless
guarantees were given that the authorities would make continuous
observations concerning the child's conditions.

        As far as the denial of contacts between the applicant and her
child is concerned the Government note that the original decision on
this matter was taken by the Social District Council on 14 May 1985.
This decision was upheld by the Regional Administrative Court on 27
August 1985 but quashed by the Administrative Court of Appeal on 8
October 1985.  The decision was thus valid for almost five months.

        In the Government's opinion the decision in question was based
on the same facts as the decision to take the child into care.  The
authorities feared that the applicant and, indeed, Mr.  G.D. could take
actions that would seriously jeopardise the aim of the care.  The
Government also emphasise that the Regional Administrative Court
expressly stated that the whereabouts of the child could not be
revealed to the mother "in any case not until the matter of taking the
child into care has been finally settled ... ".

        In view of the circumstances the Government maintain that the
decision to deny contacts between the applicant and her child and the
decision to take the child into care should be seen in the same
context and - from the Regional Administrative Court's point of view -
as quite logical.  As it turned out, the Administrative Court of
Appeal did not share the opinion of the lower court, but this is
another matter.

        With reference to these observations the Government submit
that the measures taken were in conformity with Article 8 of the
Convention.

        Since the Regional Administrative Court did not state that its
judgment should be enforced immediately it can be questioned whether
the keeping of the child in care after 18 June 1985 was in accordance
with Swedish law.  If the Social District Council from that date or
from the date of the judgment of the Administrative Court of Appeal,
ie. 8 October 1985, has acted contrary to the Swedish law it cannot be
said that the Convention has been violated until an internal
investigation is completed and all domestic remedies have been
exhausted.  As said before this is not the case.

        The Government add the following.  The interrelation between
the rules on care and the rules on provisional care orders has caused
some confusion.  Amendments have been made and a commission's proposal
for further amendments is considered within the Ministry for Health
and Social Welfare.  Even if an investigation leads to the conclusion
that in the present case the Social District Council has acted
contrary to the law, this does not automatically permit the conclusion
that the requirement "in accordance with the law" in Article 8 para. 2
is not fulfilled.  Member States have a considerable margin of
appreciation in designing their domestic system.

        To illustrate this idea, the Government give the
following hypothetical example.  It should be possible under the
Convention to prescribe e.g. that a child living with foster parents
under care should stay with them until a judgment restoring the
custody of the natural parents gains legal force in order to avoid
the risk that the child - after a possible reversal of the judgment by
a higher court - is sent back from the parents to the foster home.
Under such circumstances the expression "in accordance with the law"
should be recognised in a broader perspective, while the control of
the details of the system should be left to the Member States.

3.4     Article 9 of the Convention

        The Government maintain that there is no violation of
Article 9.  The facts presented by the applicant are not sufficient to
tell what efforts she has made to have the child baptized or in what way
this has been prevented by the authorities.  In fact, the files of the
case do not hold any information suggesting that questions related to
the rights under Article 9 were ever raised by the applicant.

3.5     Article 12 of the Convention

        The Government contend that there is no violation of
Article 12.

3.6     Article 13 of the Convention

        The Government contend that this part of the application should
be rejected as manifestly ill-founded.

4.      Conclusions

        The Government conclude:

     -  that the application is inadmissible for falling outside the scope
        of the Convention (Articles 6 and 13), alternatively for failure to
        observe the domestic remedies rule (Articles 3, 8 and 9),
        alternatively for being manifestly ill-founded, and

     -  that there is no violation of the Convention.


B.      The Applicant

1.      The Facts

        The applicant points out that when the child was taken away
from her on 24 April 1985 there was a factual separation between them
due to the fact that the applicant did not know where her child was
kept.  This was so in spite of the fact that it was not until 14 May
1985 that the Social District Council decided to prevent any contact
between the applicant and her child.  Such a decision had in practice
been applied as from 24 April.

        The applicant tried as much as possible to hide her pregnancy
from Dr.  K since she feared that the child would be taken away from
her.  This fear appears to be justified since already before the birth
of the child the staff of the social authorities had decided to take
it into care.  Dr.  G.N. was thus appointed behind the back of the
applicant as a psychiatric consultant.

        In their testimonies before both the Regional Administrative
Court and the Administrative Court of Appeal Dr.  K and Dr.  G.N.
stated that no-one had been asked or consulted as to the question
whether the child should be taken away from the mother but they were
only told this when the measures had been implemented by the social
workers.

        During her first six days together with the applicant and the
two following days at the children's hospital there were no requests
as to the need for an investigation of the physical status of the
newborn child.  It is true that Mr.  G.D., the child's father, was
arrested on the same day as the child was born as a result of his
expressing  severe dissatisfaction with the doctor K.  However,
subsequently, the Svea Court of Appeal (hovrätt) has acquitted Mr.
G.D. of the alleged criminal offence.

        When the Chairman of the Social District Council had considered
that there was a serious risk for the child's health this was an
allegation which had not been investigated and which the mother had
had no opportunity to refute.  According to Dr.  G.N. she was healthy
during the whole time he was in contact with her, that is to say during
the birth and also for a long time thereafter.

        The fact that the lawyer, Mr.  Drogell, as an official counsel
for the newly born child consented to the decision about immediate care
shows how treacherous the Swedish system is with a lawyer appointed
for the child.  Mr.  Drogell has for obvious reasons had no contacts or
connections with the newly born child but rather appears as a hostile
lawyer towards the parents allied with their counter party.  The unit
child-parent is thereby broken.

        As regards the Regional Administrative Court's judgment of 18
June 1985 the applicant invokes a medical certificate dated 2 June
1985 issued by Dr.  R. S.  His final assessment is that there are
insufficient reasons for separating the applicant from her child.
In the reasons of the Regional Administrative Court this is not
mentioned.  Neither is the fact that none of the two doctors heard by
the Regional Administrative Court wanted to disqualify the applicant
as custodian as a result of her mental illness.

        The decision of 15 November 1985 of the Deputy Chairman of the
Social District Board about immediate care of the child shows that the
parents are without legal rights.  It also shows how easily a judgment
by a court can be set aside without anything having happened in the
meantime apart from the dissatisfaction of the authorities with the
judgment of the court.

2.      The Admissibility

2.1     Article 3 of the Convention

        The taking into care of the child occurred when the mother and
the child were in the hospital.  There were other alternative ways of
helping and giving care to the mother and the child if this was
necessary.  The applicant had no chance to defend herself and her
child.  The examination of the Parliamentary Ombudsman is in no way a
remedy for the applicant.  The preliminary character of the decision
can in no way change the fact that it concerns a small baby who
completely and unnecessarily was deprived of the care of her mother
during the first seven months of her life and who was prevented from
being breast fed and thereby became ill and was harmed.

        What the Government have submitted rather shows that other
babies can run exactly the same risks as the applicant's child within
the framework of the Swedish hospitals.

        The importance of breast feeding for the newly born child, the
hormonial relations between mother and child and the system of signals
which is inherent therein must mean that every day or at least
every week not to say every month during which a newly born child is
separated from his or her natural mother unnecessarily is really an
extinction of civil rights.  The unnecessary and protracted separation
between the mother and the child cannot be explained.

        The fact that the mother and the child have small, not to say
very small, possibilities to receive compensation by turning to the
Swedish Courts does not have anything to do with the question whether
there is an abuse of power or a careless misuse of authority but
rather with the incredibly tolerant borders to the advantage of the
administration as practised in Sweden and in combination with the
possibilities of avoiding compensation through adjustments and in
other ways.

2.2     Article 12 of the Convention

        The prejudice to Mr.  G.D. not least as a result of his
appearance and linguistic problem has involved considerable
aggressivity towards him both from the social authorities and from the
court.  This is a violation of Article 12 as well as Article 8 of the
Convention.

3.      The Merits

3.1     Article 3 of the Convention

        The applicant was healthy and happy about her pregnancy during
the whole course of the pregnancy.  Nothing remarkable occurred during
the delivery and during the time in hospital up until the time the
child was taken away from her.  There was no reason to be anxious.
The applicant needed no help in order to take care of her child, a
fact which has been shown after the child was returned to her in
November and which Dr.  S. pointed out in his statement of June
1985.

3.2     Article 8 of the Convention

        The applicant finds it strange and repellent to invoke the
child's need of care for her health in the case where one has
deliberately taken the risk of damaging the child and actually also
done so.  The applicant again points out that the child and mother
were in perfect condition at the delivery and when the child was taken
away.  The mother has been healthy since then and is so still whereas
the child's unhealthy status appears to be the result of the harm
caused to her by the social authorities.  If the value of human rights
and the right for a newly born child to be together with her mother
had been respected in Sweden there would of course never have been a
case, if the child and the mother had been left alone.  There are thus
no complications in the case which are supposed to make this case a
complex one.

        It is obvious that the Social District Council, after
8 October 1985, acted in conflict with the Swedish law.  The legal
conditions for requesting leave to appeal (interest from a precedent
point of view or gross procedural errors as well as grounds for
re-opening the proceedings) were lacking.  The intention was to
obstruct the return of the child until further action could be set in
motion in order to avoid a reunification of the family.  That is the
reason for the decision of the Chairman on a new care order of
15 November 1985, Dr.  N's statement of 24 October 1985 and the
certificate of 23 October 1985 from the deputy chief doctor Mr.  M.V.
in which it is stressed that it is extremely inappropriate to separate
the child from the foster mother in order to place it with the natural
parents.  Apparently both the legal provisions and the decisions of the
courts have been set aside in a way which is devastating to human
rights.  And it is in no way an unfortunate expression of a particular
precision in domestic law.  The Government's example with the child in
the foster home is misleading, since the Court of Appeal always has
the right to immediately and temporarily stay the enforcement of a
judgment of a lower court if, for instance, it was feared that a
child would unnecessarily be moved from the foster home to the natural
home and from there back again to the foster home.

        In the applicant's view  the fact that the child was returned
to her mother so totally surprisingly and for Swedish circumstances
remarkably quickly is the exclusive result of the intervention of the
Commission in this matter.  The applicant refers to the statement of
19 November 1985 by the competent social workers.


THE LAW

1.      The applicant has complained that the taking into and keeping
in care of her child is a violation of Articles 3 and 8 (Art. 3, 8) of the
Convention.  She has also referred to Articles 9 and 12 (Art. 9, 12) of the
Convention.

        The Commission, in its examination of the application, has
first had regard to the development of the applicant's case before the
domestic courts after the introduction of the application on
13 August 1985.  It notes that, on 8 October 1985, the Administrative
Court of Appeal revoked the care order and the order not to permit any
contacts between the applicant and her child.  The Social District
Court then appealed to the Supreme Administrative Court and kept the
child in care.  But on 18 November 1985 the Supreme Administrative
Court refused leave to appeal and on 20 November 1985 the child was
returned to her mother, the applicant.

        The Commission observes that the applicant thus finally won
her case by making use of the remedies at her disposal in Sweden.  But
it finds that she can still claim to be a "victim", in the sense of
Article 25 (Art; 25) of the Convention, of the acts complained of, in that she
is still affected and aggrieved by the prolonged separation from her
daughter in the past.

2.      The Government have objected to the admissibility of the
applicant's complaints on the ground that she has not exhausted
domestic remedies as required by Article 26 (Art. 26) of the Convention.

        The Commission considers that the principal issue in the
present case arises under Article 8 (Art. 8) of the Convention, which reads:

"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 or morals, or for the protection of the rights and
freedoms of others."

        The applicant's child was in care from 24 April to
20 November 1985.  The provisional care order which was issued on
24 April 1985 was immediately enforceable according to  Section 21 of
the 1980 Act.  According to Section 8 of the Act the provisional care
order was valid until the Regional Administrative Court delivered its
judgment on 18 June 1985.  The judgment of this Court was quashed by
the Administrative Court of Appeal on 8 October 1985.

        The taking into care of the child constituted an interference
with the applicant's right to respect for her family life as protected by
Article 8 para. 1 (Art. 8-1) of the Convention.  The question which arises is
whether the taking and keeping of the child in care was justified under Article
8 para. 2 (Art. 8-2), in this context the first issue is whether the keeping of
the child in care after 18 June 1985 was "in accordance with the law" as
required by Article 8 para. 2 (Art. 8-2).

        In this respect the Government, with reference to Article 26
(Art. 26) of the Convention, have referred to the investigation initiated by the
Parliamentary Ombudsman and to the fact that the applicant has not
taken any measures with a view to having assessed by the competent
organs whether the Social District Council's measures amount to misuse
of public power or negligent exercise of public power.

        The Commission notes that the Parliamentary Ombudsman, on
his own motion, started an investigation of the matter.  He asked
the public prosecutor to make a first examination as to whether there
were reasons to institute criminal proceedings against the Deputy
Chairman of the Social District Council and the President of the
Regional Administrative Court.  After having concluded his examination
the public prosecutor recommended to the Ombudsman that criminal
proceedings be instituted against the Deputy Chairman on the charge of
misuse of public power, and against the President of the Court on the
charge of negligent exercise of public power.  On 8 July 1987 the
Parliamentary Ombudsman decided not to institute any criminal
proceedings.

        In these circumstances, the Commission considers that, even if
it would still be open to the applicant to institute proceedings against
the Deputy Chairman of the Social Council or the judge of the Regional
Administrative Court, such an action cannot be regarded as a remedy
within the meaning of Article 26 (Art. 26) of the Convention for the alleged
violation of Article 8 (Art. 8) of the Convention.

        The Government have not indicated any other effective remedy,
within the meaning of Article 26 (Art. 26) of the Convention.  Consequently in
this respect the application cannot be rejected for failure to exhaust
domestic remedies.

3.      The Government have also submitted that the application  is
inadmissible as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.

        The Commission considers that the question whether the
keeping of the child in care after 18 June 1985 was justified under
the terms of Article 8 para. 2 (Art. 8-2) of the Convention and in particular
whether it was "in accordance with the law" raises issues of fact and
law which are of such complexity that their determination should
depend upon an examination of the merits.  This part of the
application is therefore not manifestly ill-founded and must be
declared admissible, no other ground for declaring it inadmissible
having been established.

4.      The applicant has also complained that she was not given a fair
and public hearing in respect of the provisional care order and that
Article 6 (Art. 6) of the Convention has accordingly been violated.

        The Commission observes that, even assuming that Article 6 (Art. 6) of
the Convention was applicable to the determination of the provisional
care order, the applicant appealed to the Regional Administrative
Court and to the Administrative Court of Appeal in respect of the
provisional care order.  The Commission finds no appearance of a
violation of Article 6 (Art. 6) of the Convention in the proceedings before
these Courts.

        It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

5.      The applicant has finally complained that she had no effective
remedy in respect of the provisional care order since the Supreme
Administrative Court struck the case off its list without examining the
merits.  She alleges a violation of Article 13 (Art. 13) of the Convention.

        The Commission observes that the applicant could appeal
against the provisional care order first to the Regional
Administrative Court and then to the Administrative Court of Appeal. These
remedies were effective remedies within the meaning of Article 13 (Art. 13) of
the Convention.  Article 13 (Art. 13) did not require a further remedy to the
Supreme Administrative Court.

        It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

        For these reasons, the Commission

        DECLARES INADMISSIBLE the procedural complaints under
        Articles 6 and 13 (Art. 6, 13) of the Convention,

        DECLARES ADMISSIBLE, without prejudging the merits, the
        remainder of the application.



        Secretary to the Commission         President of the Commission



             (H. C. KRÜGER)                       (C. A. NØRGAARD)