X. v. DENMARK



THE FACTS

The facts of the case, as submitted by the applicant, may be summarised
as follows:

The applicant is a Danish citizen, born in 1921 and resident in
Copenhagen. She is a book-keeper by training.

Her application concerns the actions taken by the competent Danish
authorities with regard to the four children born in her first
marriage. The children were born in 1955, 1956, 1957 and 1958
respectively. The applicant obtained a decree of judicial separation
from her first husband in 1963 and a final divorce in 1966. At the
separation the applicant was given custody of her children. She married
again in 1968.

As a consequence of the separation and, apparently, after the applicant
had applied for financial assistance for help to look after the
children, she was approached by the local Child and Youth Welfare Board
(börne- od ungdomsvarenet i K. kommune). In January 1964 the Board
appointed a child welfare officer (tilsynsvaerge) to supervise the
children.

The applicant has submitted a very detailed account of their home
conditions during the following years and her relations with the
officers of the Board and her former husband and the alleged
persecution she was subjected to. In particular, her former husband
repeatedly broke into her house and inflicted damage on the building
itself.

In November 1966 the District Medical Officer (kredslaegen) visited the
home at the request of the Board to investigate reports of alleged
neglect of the children. He did not, however, consider that there were
reasons to remove the children. In March 1967, the District Medical
Officer made a new inspection and reported that the house was dirty and
disorderly. He did not recommend that the children should be removed
for good but only provisionally in order to enable the house to be
cleaned and attended to.

On .. March 1967, the Board decided that, according to Section 28 (1)
(2) of the Child and Youth Welfare Act (lov om börne- og
ungdomsforsorg), the three youngest children should be placed outside
their home. No decision was taken with regard to the eldest child who
was a boarder at a school for word-blind children. The three youngest
children were put into the care of a farmer at H.

On .. August 1967, the Board ordered that the children should be
returned to their mother on probation.

On .. July 1969, the Board decided, with the consent of the mother,
that all the children should be examined by a child psychiatrist. The
resulting report recommended that the three youngest children should
be taken into care outside their home for a longer period. The eldest
child should be allowed to continue her school education despite the
mother's objection.

On .. August 1969 the Board ordered that all the children should be
taken in charge outside their home with a view to placing the eldest
daughter in a school and the other three in an institution for child
care. After having been separated accordingly, all the children were,
from .. July 1970, placed in an institution for child care in M. A
psychiatrist's report in May 1970 stated that one of the children (born
in 1956), who had shown signs of psychiatric problems, was in need of
care in an institution with small groups where a man was in charge.
This was said to be more important than keeping all the four children
together.

The applicant appealed against the Board's decision of .. August 1970
which was upheld by the National Board (Landsnaevnet) on .. January
1969. The applicant then requested that the case should be referred to
the High Court for Eastern Denmark (Östre Landsret) for a decision. In
its judgment of .. September 1970 the Court recorded that the Head of
the institution where the children were placed had stated that all of
them were out of balance and need a period of rest and security. The
Court also noted that the mother had given evidence to the effect that
she had by then been forced to leave her former house, was living in
a two-room apartment and had refused to give more detailed information
concerning her living conditions. She was unable to work because of a
wrist injury.

The Court held that it was necessary, in order to protect the interests
of the children, that all four of them should be taken in charge for
care outside their own home since the conditions there were such that
their bodily and mental health and development was likely to be
endangered. The removal of the children from their home was therefore
in accordance with the law (1).
----------------------------------------
(1)  According to Section 59 of the Child and Youth Welfare Act an
appeal lies to the Supreme Court (Höjesteret) where exceptionally leave
to such appeal has been granted by the Minister of Justice.
----------------------------------------
It appears that the applicant and her present husband visited the
children regularly after they had been brought to the child care
institution in August 1969.

In January 1970 the applicant was allegedly refused permission to visit
the children and she was told that she would be reported to the police
if she tried to see them or find out where they were. According to her,
she only learned about their whereabouts at the hearing in the High
Court on .. September 1970. In a letter dated .. February 1972 the
applicant emphasised that by then more than two years had passed since
she last saw her children or received a word from them.

The applicant has not invoked any specific Article of the Convention
but indicated that her application concerns the "kidnapping" of her
four children and refusal of permission to see the children since
January 1970.

THE LAW

1.   The applicant has complained that she has been deprived of the
care of her four minor children and that she has been refused all
access to the children since January 1970. In examining these
complaints the Commission has had regard to Article 8 (1) (Art. 8-1)
of the Convention which provides, inter alia, that everyone has the
right to respect for his family life.

2.   The Commission has first considered the applicant's complaint
concerning the decision to place the children in care outside their own
home. It appears that the final decision with regard to this complaint
was taken by the High Court (for Eastern Denmark) on .. September 1970
and that the applicant did not apply to the Minister of Justice for
leave to appeal to the Supreme Court against that decision. Section 59
of the Child and Youth Welfare Act which governs such appeal provides
that leave to appeal may only be granted in exceptional circumstances.

The question therefore arises whether the applicant has complied with
Article 26 (Art. 26) of the Convention which provides that the
Commission may only deal with a matter after all domestic remedies have
been exhausted according to the generally recognised rules of
international law. In this connection the Commission recalls that it
has frequently stated that Article 26 (Art. 26) only imposes an
obligation on an applicant to exhaust domestic remedies which can be
considered "sufficient and effective". However, the Commission does not
find it necessary to determine whether or not an application for leave
to appeal would, in the circumstances of the present case, have
constituted such a sufficient and effective remedy for the purposes of
Article 26 (Art. 26), since the Commission finds that this complaint
is, in any event, inadmissible on other grounds.

It is true that paragraph (1) of Article 8 (Art. 8-1) recognises, in
general, everyone's right to respect for his family life, but paragraph
(2) of this Article (Art. 8-2) provides that "there shall be no
interference by a public authority with this right except such as is
in accordance with the law in a democratic society ... for the
protection of health and morals ...".

The decision to remove the children from the applicant's home
constitutes unquestionably an interference with her right to respect
for her family life under Article 8 (1) (Art. 8-1).

However, this decision was "in accordance with the law" as it was
provided for in Section 28 paragraph 1 (2) of the Child and Youth
Welfare Act. Furthermore, the High Court considered that it was
necessary to place the children in care outside their home in the
interest of their welfare and based this conclusion on recommendations
by psychiatrists and child welfare officers.

The Commission finds that this decision was reasonable in the
circumstances and that the consequent interference with the applicant's
family life therefore falls under Article 8 (2) (Art. 8-2) of the
Convention as a necessary measure for the protection of the "health an
morals" of the children. In this connection, the Commission refers,
mutatis mutandis, to its decisions on the admissibility of applications
nos. 2822/66, Yearbook, Vol. 11, pp. 406, 410 and No. 4396/70,
Collection of Decisions, Vol. 36, pp. 88, 89.

It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27, paragraph (2) (Art. 27-2), of the
Convention.

3.   The Commission has next examined the applicant's complaint that
she has been refused all access to the children since January 1970. The
Commission finds that an examination of the file at the present stage
does not, on certain points, give the information required for
determining the question of admissibility of this part of the
application. The Commission therefore decides, in accordance with Rule
45, 3 (b), of its Rules of Procedure, to give notice of this part of
the application to the respondent Government and to invite the
Government to submit its observations in writing on the question of
admissibility.

In the meanwhile the Commission adjourns its further examination of
this complaint.

For these reasons the Commission

1. Declares inadmissible the applicant's complaint relating to the
decision to place her children in care outside their home;

2. Adjourns its examination as to the admissibility of the applicant's
complaint concerning the alleged refusal of all access to her children
since January 1970.