PROCEDURE

The case originated in an application (no. 3684/07) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swedish national, Mr Einar Strömblad (“the applicant”), on 15 January 2007.

The applicant was represented by R. Harrold-Claesson, a lawyer practising in Olofstorp. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, of the Ministry for Foreign Affairs.

The applicant complained that the Swedish courts’ protracted custody proceedings, including their handling of his request for the return of his daughter under the Hague Convention, and the Tax Authority’s decision to remove his daughter from the population register, violated Articles 6, 8 and 13 of the Convention.

On 26 June 2008 the President of the Third Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1 of the Rules of Court) and the above application was assigned to the newly composed Fifth Section.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1950 and lives in Kristianstad.

In 1999 the applicant married L., a Ukrainian national holding permanent residence permits in the Czech Republic and in Sweden. In February 2004 she obtained Swedish nationality. In August 2003 their daughter, N., was born. She is also a Swedish national.

Between May and August 2005 L. visited her parents in Prague together with N. Upon their return, the applicant’s relationship with L. quickly deteriorated and, in September 2005, she returned to her parents’ home in Prague with N. They have remained there ever since.

A. The proceedings relating to custody and rights of contact

In September 2005 the applicant submitted an application for divorce from L. to the District Court (tingsrätten) in Kristianstad. He further requested sole custody of N. or, if the court decided that the parties should have joint custody, that N. should live with him. In any event, if the court were to decide that N. should live with her mother, he wanted contact rights to be exercised on a regular basis according to a specific schedule.

L. agreed to the divorce but opposed the applicant’s requests in relation to their daughter. She wanted sole custody of N. but agreed, pending the final outcome of the proceedings, that the applicant could visit N. in Prague for a few hours every other weekend with her or her mother (N.’s maternal grandmother) present.

On 14 November 2005, after having held an oral hearing, the District Court decided that, pending the final outcome of the proceedings, the applicant and L. should have continued joint custody of N. but that she should live with her mother and see her father for four hours every other weekend in the presence of L. or a person of her choice. The court further ordered the Kristianstad Social Council to carry out an investigation into the custody of N., her place of residence and contact to her. In its interim decision, the court noted that neither the applicant nor L. appeared to be unsuitable as guardians for N. Therefore, despite their difficulties in co-operating and the distance between their places of residence, there were not enough reasons to dissolve the joint custody of N. Moreover, having regard to N.’s young age and the fact that the main responsibility for her daily care had rested with L., the court found it to be in the child’s best interest to live with L. even though L., by moving to Prague, had made it more difficult for N. to see her father. In this respect, the court emphasised that L. had a great responsibility to ensure that N. would be able to see the applicant. The parties were left to agree on where it would be best for N. and the applicant to meet.

The applicant appealed against the decision to the Court of Appeal (hovrätten) of Skåne and Blekinge, maintaining his requests for sole custody of N. and for her to live with him. In the alternative, he wanted his right of contact with N. to be exercised in southern Sweden.

L. opposed any changes to the District Court’s decision.

On 13 December 2005 the Court of Appeal upheld the lower court’s decision in full. It found that no circumstances had been presented which indicated that the District Court’s decision was not in the best interests of the child. This decision was final.

Subsequently, the applicant requested the District Court to change its interim decision, inter alia, in respect of N.’s place of residence and the contact rights. He claimed that the interim decision in force had made it impossible for him to create meaningful contact with N., since it was too expensive for him to travel to Prague every other weekend. Moreover, he wanted to be able to spend time with his daughter alone.

As L. opposed any changes to the interim decision, the District Court held an oral hearing, at which the applicant, his representative and L.’s representative were present. L. did not attend.

In an interim decision of 23 January 2006, the District Court altered its previous decision by granting the applicant a right of contact to N. every other weekend for four hours on both Saturday and Sunday. For the rest, the court found it to be in the best interests of N. to keep the interim arrangements until final judgment was delivered in the case.

The applicant appealed to the Court of Appeal, demanding that N.’s permanent place of residence should be in Sweden.

On 28 February 2006 the Court of Appeal rejected the appeal, noting that it was not legally possible for it to decide where a child should live; it could only decide with whom. No appeal lay against the decision.

In 2006 the Social Council made an investigation concerning the custody of N., her place of residence and contact to her, but the District Court did not find the results satisfactory. Thus, by decision of 2 July 2007, the District Court mandated a company, Access Borders SE, to investigate N.’s living conditions in the Czech Republic. The report was to be submitted to the court at the latest on 15 October 2007. Moreover, the court decided that N. should meet with the applicant for four hours on 8 December 2007 and for four hours on 9 December 2007 in Sweden. Furthermore, the date for the main hearing in the case was fixed for 11 and 12 December 2007.

The hearing was cancelled and, apparently, the applicant and N. did not therefore meet as scheduled in Sweden.

In a report faxed to the District Court on 18 December 2007, Access Borders SE informed the court of its efforts to carry out an investigation into N.’s living conditions in Prague but stated that this had not been possible because L.’s representative in Prague had acted in a manner which obstructed the impartial investigation.

On 13 March 2008 the District Court took a number of procedural decisions, inter alia, rejecting L.’s request to have all documents in the case-file translated into Czech and deciding that the parties should finalise their pleadings by 21 April 2008 so that the main hearing could take place. Moreover, it rejected a request by the applicant to order further investigations into N.’s situation in the Czech Republic while maintaining the assignment given to Access Borders SE. In this respect, the District Court noted that a new investigation would be very time-consuming and therefore not appropriate but that it would take into consideration when deciding the case that L. had refused to co-operate in the investigation by Access Borders SE ordered by the court.

On 2 March 2010 the District Court took further procedural decisions, inter alia, rejecting a request by the applicant to hear a new witness. Moreover, it rejected the applicant’s request for edition of certain documents.

On 27 July 2010 the District Court, after having held an oral hearing, delivered its judgment. The court decided that L. should have the sole custody of N. and granted the applicant a right of contact with N. four days in a row on a monthly basis, which should gradually be increased. The District Court held that both the applicant and L. were suitable parents. It further concluded that the fact that N. had not seen her father for the last five years was to a large extent caused by L.’s behaviour and that it was to be feared that N. would not have any future contact with the applicant if she stayed with L. in Prague. However, the court held that, despite invitations from L., the applicant had not even once gone to Prague. In the court’s view he had thus not made sufficient efforts to enforce his rights of contact in respect of N. Lastly, the court concluded that the advantages of a change of N.’s domicile would not outweigh the drawbacks, inter alia, since N. had not seen the applicant for several years and no longer spoke Swedish.

The applicant appealed against the judgment to the Court of Appeal, which refused leave to appeal on 29 September 2010.

On 8 December 2010 the Supreme Court refused leave to appeal.

B. Proceedings relating to the Hague Convention

In December 2005 the applicant applied to the Swedish Ministry for Foreign Affairs for assistance for the return of N. to Sweden in accordance with the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The Ministry for Foreign Affairs, which is the Swedish Central Authority in charge of matters falling under the Hague Convention, forwarded the applicant’s request to its Czech counterpart.

As there was no real progress in the case, the applicant contacted the Ministry for Foreign Affairs in May 2006 expressing his concern and requesting that the Ministry put some pressure on the Czech Central Authority.

Following correspondence between the authorities, the Czech Central Authority requested, in accordance with Article 15 of the Hague Convention, that the applicant obtain a decision from the Swedish courts to the effect that the removal of N. by her mother had been wrongful within the meaning of Article 3 of the Hague Convention. In June 2006 the Ministry for Foreign Affairs forwarded this request to the District Court in Kristianstad since the latter was dealing with the custody case.

By judgment of 10 October 2006 the District Court declared that L.’s retention of N. in the Czech Republic was not unlawful within the meaning of Article 3 of the Hague Convention. In reaching this conclusion, it had regard to the fact that, in November 2005 when it had taken its interim decision that N. should live with her mother, it had known that they were staying in Prague. Thus, it had accepted that N. was not in Sweden but in Prague with L. for which reason the retention was not unlawful.

The applicant appealed to the Court of Appeal, claiming that the District Court should have focused on the actual removal of N. from Sweden by L. and not on the retention. In his view, the removal had been unlawful and the Hague Convention was therefore applicable. Later decisions by the Swedish courts could not justify the removal retroactively.

On 19 December 2006 the Court of Appeal rejected the applicant’s appeal, finding that neither the removal nor the retention of N. by L. was unlawful. This judgment was final.

However, the applicant applied to the Supreme Court (Högsta domstolen) for re-opening of the case as he considered that he had suffered a miscarriage of justice. On 1 February 2007 the Supreme Court rejected the application.

C. Proceedings relating to N.’s removal from the population register

In June 2006 L. sent a notification of change of address to the Swedish Tax Authority (Skatteverket) on N.’s behalf. Since parents who have joint custody of a child need to agree on a change of address for the child, the Tax Authority forwarded the notification to the applicant for comments. The applicant opposed the change of N.’s place of residence in the Swedish population register (folkbokföringen) since he considered the removal of N. to be unlawful and the custody proceedings were still ongoing.

On 11 September 2006 the Tax Authority dismissed L.’s notification of N.’s change of address because notification had to be made jointly by both guardians. However, at the same time it decided, on its own initiative, to remove N. from the population register as having emigrated, since it was clear that N., since 10 September 2005, had no longer lived at the registered address in Sweden but with L. in Prague. In reaching this conclusion, it had regard to the District Court’s interim decision of 14 November 2005 that N. should be living with her mother.

The applicant appealed against the decision to the County Administrative Court (länsrätten) of the County of Skåne, demanding that the Tax Authority’s decision be repealed and that N.’s registered place of residence should not be changed until a final decision in the custody case had been reached.

On 10 October 2006 the County Administrative Court dismissed the appeal on the ground that both parents, since they had joint custody, had to agree on the appeal. Thus, since L. did not support the applicant’s appeal, the court could not consider it on the merits.

Upon further appeal by the applicant, the Administrative Court of Appeal (kammarrätten) in Gothenburg refused leave to appeal. However, the applicant lodged a further appeal to the Supreme Administrative Court (Regeringsrätten), maintaining his claims and invoking Articles 8 and 13 of the Convention. He considered that since the custody case and the proceedings relating to his demand under the Hague Convention were still pending, the Tax Authority should not prejudge those proceedings by removing N. from the population register as having emigrated. This was a violation of his rights under Article 8 and, consequently, he had a right under Article 13 of the Convention to have an effective remedy, that is, the national courts were under an obligation to try his appeal on the merits.

On 18 December 2006 the Supreme Administrative Court refused leave to appeal.