THIRD SECTION
 
 
 
 
 
 
 
 
CASE OF S.J.P. AND E.S. v. SWEDEN
 
(Application no. 8610/11)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
 
28 August 2018
 
FINAL
 
28/11/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of S.J.P. and E.S. v. Sweden,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Branko Lubarda, President,
 Helena Jäderblom,
 Helen Keller,
 Pere Pastor Vilanova,
 Alena Poláčková,
 Georgios A. Serghides,
 María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 3 July 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 8610/11) 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, Ms S.J.P., and an Iranian national, Mr E.S. (“the applicants”), on 15 October 2010. The Chamber decided to grant the applicants anonymity (Rule 47 § 4 of the Rules of Court). 2. The applicants were represented by Ms J. Beltran, a lawyer practising in Gothenburg. The Swedish Government (“the Government”) were represented by their Agents, Ms H. Lindquist and Mr O. Widgren, of the Ministry for Foreign Affairs. 3. The applicants alleged that their right to family life under Article 8 of the Convention had been violated by the authorities’ decisions to take their children into public care and restrict their contact rights. 4. On 16 December 2014, the Court declared the application partly admissible and the remainder inadmissible. It further decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine),
5. The applicants and the Government each filed further written observations (Rule 59 § 1) on the merits. The parties replied in writing to each other’s observations. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants were born in 1969 and 1964 respectively and live in Sandnes, Norway. A. Background
7. The second applicant went to Sweden in the 1980s and met the first applicant in 1993. They have three children, A (born in December 2002), B (born in December 2003) and C (born in February 2007). The second applicant also has a son, D (born in 1989), from a previous relationship, who has lived with the applicants. The applicants lived in the city of Linköping until May 2007 when the first applicant travelled to Iran with the children. 8. In February 2007, staff at the Neonatal Unit at the University Hospital in Linköping, where C was treated after her birth, contacted the Linköping Social Council (socialnämnden) due to concerns about the family. The staff had observed that the first applicant had difficulties in understanding C’s needs and lacked ability to read her signals. Moreover, she was very withdrawn and took no initiative to feed C or change her nappy. The staff had suggested that she consult a psychiatrist, but the first applicant had refused. Furthermore, when the second applicant had visited the hospital with A and B, the children had been noisy and unruly and staff had had to intervene to calm them. When the staff had informed the applicants about their concern for the children and their intention to contact the social services, the second applicant had responded aggressively. 9. On the basis of the information from the hospital, the Social Council started an investigation into the family’s situation in accordance with Chapter 11, Section 1, of the Social Services Act (socialtjänstlagen, 2001:453). They contacted persons from the Neonatal Unit, the primary health care clinic for children and the women’s clinic, as well as A and B’s child-minder, all of whom expressed great concern about how the applicants were coping with their family situation and described how they had failed to provide A and B with the necessary structure and rules. The Social Council repeatedly offered the applicants placement in an investigation home, but the applicants refused. Instead, they agreed to have a team from the Social Council visit their home on a number of occasions. It was further decided that the whole family should undergo psychiatric examinations. 10. However, it would appear that the applicants repeatedly refused to let the Social Council team enter their home and, from mid-April, before the investigation was completed, the applicants stopped all contact with the team and informed them that they did not intend to undergo psychiatric examinations. The Social Council unsuccessfully tried to re-establish contact with the applicants. In late May 2007, the first applicant and the children left their home, allegedly to spend time with friends. Several persons who were normally in contact with the applicants expressed concern about the children’s situation and the fact that their whereabouts were unknown to them. 11. On 11 September 2007, the Social Council decided to take all three children into public care immediately, on a provisional basis, by virtue of Section 6 of the Special Provisions on the Care of Young Persons Act (lagen med särskilda bestämmelser om vård av unga, 1990:52; hereafter “the 1990 Act”). On 21 September 2007, the Administrative Court (länsrätten, as of 15 February 2010 förvaltningsrätten) confirmed the decision of the Social Council, as did the Administrative Court of Appeal (kammarrätten) and the Supreme Administrative Court (Högsta förvaltningsdomstolen) upon further appeal. However, the decision was never enforced since it turned out that the first applicant and the children were in Iran. Friends of the applicants informed the Social Council that the first applicant was afraid to return to Sweden since she feared that her children would be taken into public care. Thus, on 13 February 2008 the Social Council cancelled the care order since it could not be enforced. The first applicant and the children stayed in Iran until October 2008 when the whole family moved to Sandnes in Norway. B. Taking the children into public care
12. In May 2009, the local Norwegian Social Council was contacted by A’s school because he had told the school that both he and B had been beaten by the second applicant. The applicants denied the accusations. The Norwegian Social Council decided to initiate an investigation during which it was agreed that the second applicant would live away from the home and that a Social Council Unit would visit the family daily. On 16 May 2009, the applicants and their children disappeared. Subsequently, the second applicant telephoned, from a Swedish telephone number, the Norwegian Social Council, which in turn contacted the Swedish authorities as it suspected that the family might be in Sweden. Moreover, an anonymous person had telephoned the Swedish Social Council to express serious concerns about the children who, according to this person, were at an address in Linköping. When the Social Council staff went to the address given, the family was not there but their luggage was in the apartment. Consequently, on 25 May 2009, the Social Council decided to take A, B and C into immediate public care on the basis of its previous investigation and since it feared that the family would again leave for Iran. 13. On 28 May 2009, the applicants and their children were stopped at Stockholm Airport on their way to Iran and a team from a Social Council close to the airport assisted in the enforcement of the care order. The report made by the Social Council team which picked up the children at the airport described a chaotic situation. The first applicant and B and C had been apathetic while A had been hyperactive. The second applicant had mostly been on the telephone. Neither the first nor the second applicants had reacted when the team had taken the children away with them. A, B and C were all placed in a foster home (familjehem) together, but later A was moved to a separate foster home since he was hyperactive and required special attention. 14. On 10 June 2009, after holding an oral hearing, the Administrative Court confirmed the Social Council’s decision to take the children into immediate public care. 15. The applicants appealed against the judgment to the Administrative Court of Appeal which, on 6 August 2009, struck the case out since, in the meantime, the children had been taken into public care (see paragraph 20 below) and the immediate public care order thereby had lapsed. 16. On 25 June 2009, the Social Council applied to the Administrative Court for a public care order in respect of all three children, in accordance with Section 2 of the 1990 Act. The Council maintained that the applicants had shown a serious lack of ability to care for their children, that there was a clear risk of impairment of their health and development if they were not protected and that the applicants opposed the planned necessary care. It submitted a comprehensive investigation report into the family’s situation in support of its request. The report was based, inter alia, on submissions from the children’s temporary foster homes, the local health care service, reports based on psychiatric examinations of the children, notes from the Child and Youth Psychiatric Clinic (Barn- och ungdomspsykiatrin; hereafter “BUP”) and information from relatives and the Norwegian Social Council. 17. According to the report, none of the children had been accustomed to structure or routines. A maintained that he had been beaten by the second applicant and B had told her foster home that she, A and the first applicant had all been beaten by the second applicant. It was mainly the first applicant who had cared for the children. Hospital and Social Council staff, as well as relatives, had for a long time been worried about her psychological health and encouraged her to seek help. She had denied that she needed help and had refused all treatment. All of the children had lacked communication and emotional response from their parents, which had affected their psychosocial development and their ability to interact socially with other children as well as adults. A was hyperactive and had difficulties following rules and functioning in social situations. His behaviour corresponded to several of the symptoms of Attention Deficit Hyperactivity Disorder (ADHD). B was remarkably silent and withdrawn. Psychiatrists had assessed that she was traumatised and had recommended therapeutic treatment combined with a safe environment where she did not have to deny her experiences. Both she and C were behind in their language development and lacked the ability to express their emotions. Several instances had, over the years, emphasised the children’s need for emotional contact with the applicants. The second applicant had failed to compensate for the first applicant’s inability in this regard and neither of the applicants had managed to establish routines for the children’s basic needs such as food, hygiene, clothes and necessary medical care. Thus, the applicants’ ability to care for their children properly was questioned. The applicants’ impulsive behaviour had led to an unstable and insecure living situation for the children, such as when they had suddenly decided to move to Iran. There was an imminent risk that the applicants would again travel to Iran with their children. All of the children were in need of stability and an environment with clear rules and structure, including stable adults who could compensate for their previous lack of emotional care. 18. The applicants disputed that public care was needed. They submitted that they were capable parents who cared for and loved their children. They had cooperated with the Social Council in 2007 but had been treated inappropriately and disrespectfully by the authorities. They had not fled to Iran but had gone there to visit family, as they did every year. They submitted documentary evidence including medical certificates. According to a Chief Physician at Linköping University Hospital Women’s Clinic, the first applicant had accepted special assistance offered to her after the birth of all three children and had kept to this commitment. It had been noted that she felt great affection for her children. Moreover, according to a physician at the applicants’ local health centre, all the children had demonstrated the ability to make emotional contact and had behaved in a way appropriate for their age. 19. The legal representative assigned to defend the children’s best interests supported the Social Council’s stance. He had met all three children and, according to him, the information contained in the investigation gave reason for grave concern for the children’s situation. The parents’ lack of ability to understand their children’s needs, as well as the information about abuse, meant that it was necessary to take the children into public care to ensure that they received proper care. 20. On 20 July 2009, after holding an oral hearing where the applicants and several witnesses were heard, the Administrative Court granted a public care order in respect of each of the three children. It found that, on the basis of all the material in the case, it had been shown that the applicants lacked the ability to care for their children and to understand their needs. This inability had already impaired the children’s health and development in important areas. In the court’s view, there was a real risk of further damage unless the children were given proper care to meet their special needs. Since the applicants did not agree to voluntary care, it was necessary to take the children into public care. 21. The applicants appealed against the judgment to the Administrative Court of Appeal, maintaining that public care was not necessary for any of their children. They denied that either of them had ever hurt the children and stressed that the public prosecutor, in July 2009, had decided to discontinue a preliminary investigation against the second applicant concerning child abuse. Moreover, there was no medical evidence substantiating any accusations of physical violence. They emphasised that all three children were healthy and behaved in a manner appropriate for their age. They welcomed the fact that A’s condition had been diagnosed and were willing to accept appropriate help from the Social Council. The reasons for their decision to travel to Iran in May 2009 were that the second applicant’s father had fallen seriously ill and to spend their holidays there. They submitted, inter alia, further medical certificates and an assessment of the Social Council’s investigation issued by an associate professor. 22. The Social Council contested the appeal. It stated that A had been diagnosed with ADHD and Oppositional Defiant Disorder and emphasised that he was in need of a structured environment and appropriate help in order to develop in a positive way. B was still traumatised and communicated only by nodding or shaking her head. C was physically active, had become more independent and no longer feared daily sounds, such as the vacuum cleaner. The Council submitted a psychosocial investigation report from November 2009, a neuropsychological investigation report dated 26 October 2009 and a medical certificate dated 8 September 2009, all concerning A. 23. The children’s legal representative supported the Social Council’s stance. During a meeting with the children, A had declared that he wanted to live with his parents and siblings and that there were too many rules where he now lived. He had stated that the second applicant had sometimes beaten him and had sometimes been kind. B had told her foster home parents that the second applicant had beaten her. The representative emphasised the children’s need to see their parents but referred to the extensive material in the case-file which showed that the children had special needs. The investigations had also highlighted clear warning signals that the children had suffered at home. Moreover, the representative found it questionable whether the applicants would agree to voluntary care, since they had refused to cooperate with the Social Council on previous occasions. 24. On 11 December 2009, after holding an oral hearing where several witnesses were heard at the applicants’ request, the Administrative Court of Appeal upheld the lower court’s judgment in full. It found that the signs of lack of proper care which had appeared during the investigation in 2007 now appeared even more clearly. The investigations carried out after the decision on public care in June 2009 indicated that all of the children had special needs which had been neglected. Additionally, the court noted that both A and B had told various persons, in different situations, that they had been beaten by the second applicant. Although these accusations had not led to any charges against the second applicant, the court stressed that this information had to be taken seriously, since the main purpose of the 1990 Act was to protect the child. Moreover, the court observed that the Social Council had had difficulties carrying out the investigation correctly, mainly due to the applicants’ unwillingness or inability to cooperate with the authorities. The applicants’ unwillingness to cooperate had also manifested itself in their decision to move twice to another country, which had also jeopardised the security and stability of the children’s environment. Making an overall assessment, the appellate court found that the investigations strongly indicated that the applicants had failed to care for their children properly and that they lacked understanding of the children’s special needs and their own inability to care for them. Thus, there was a real risk of damage to the children’s health and development. Lastly, the court noted that both of the applicants had declared that they were willing to receive help from the Social Council while, at the same time, they had refuted the accuracy of the investigation and claimed that the information was fabricated or much exaggerated. They also opposed the care plan developed for the children. Accordingly, there were valid grounds to take the children into public care. 25. The applicants appealed to the Supreme Administrative Court which, on 15 April 2010, refused leave to appeal. C. Decision to keep the children in public care
26. On 22 September 2010, the Social Council decided that the children should remain in public care. 27. The applicants appealed against the decision to the Administrative Court. They stated that they were settled in Norway, both of them holding full-time jobs, and that they were in contact with the Norwegian Social Council. They insisted that they had fully cooperated with the Swedish Social Council and had done all that had been required of them, including travelling to Linköping for meetings with the Social Council and allowing the Norwegian authorities to visit them at home. Moreover, they were actively involved in an ADHD association and were attending courses to understand the condition better and be able to help A. With assistance from the Norwegian authorities and the school, they could take care of A and meet all of his needs. The applicants further questioned whether the Social Council really had a clear plan for how, in due time, to reunite them with their children and contested the Council’s view that they opposed the plan for visits with the children. In fact, the first applicant’s visit with the children had gone very well and the children had also reacted positively to photographs and letters from their parents. Taking into consideration the children’s very young age, they emphasised the importance of not waiting too long before starting the reunion process, and including more frequent visits, in order to avoid a sudden removal from the foster homes which could cause the children emotional harm. Furthermore, the applicants categorically denied that any violence had occurred in their home and they alleged that if any of the children showed signs of trauma, it was most likely due to the traumatic separation from their parents. They submitted, inter alia, medical and other certificates to substantiate their good psychological health. 28. The Social Council contested the appeal. It confirmed that the applicants had cooperated with the authorities and had come to planned meetings with the Council. It attached much importance to the fact that this cooperation needed to continue over time. However, it maintained its view that the applicants opposed the visiting plan since they had requested that the public care of their children be lifted and the children be returned home and since they opposed further care under the provisions of the Social Services Act. Although both of the applicants had demonstrated improvements in their capacity to assess the children’s needs, they still lacked basic understanding of how to care properly for their children. The Council stressed that A had been taken into care due to lack of care at home, not because he had been diagnosed with ADHD. Moreover, A repeatedly spoke about how he had been beaten by the second applicant and he had had to be reassured before the meeting with the first applicant that he would return to the foster home after the meeting. Thus, the decision on public care was partly based on the need to protect him, as well as B and C. The Council further observed that, as concerned B, a psychologist had stated that there were reasons to believe that she had been neglected or traumatised at a preverbal stage of her life and that, consequently, her problems were not linked to being taken into care. Lastly, turning to C, it was asserted that she needed to be protected from neglect in order to develop positively and have her needs met. The Council repeated that there had been concern for the children for a long time and that its findings were based on an overall evaluation of the children’s situation and their parents’ ability to care for them. It submitted various investigation and evaluation reports about the children which it had used as a basis for its decision to keep them in public care. 29. The children’s legal representative supported the Social Council’s stance. 30. On 20 January 2011, after having held an oral hearing, the Administrative Court rejected the applicants’ appeal and upheld the public care order. It first noted that the applicants demonstrated great affection for their children and wanted them to be well and that they were engaged in activities and receiving assistance to understand the problems. The visit between the first applicant and her children had gone well. However, the court observed that the applicants still denied that they had failed in the care of their children and it found that they continued to lack understanding of the children’s problems and their own ability to meet the children’s special needs. Thus, it found no basis for lifting the care order. Moreover, since the applicants had not agreed to the care plan developed for each child, which included their living in a foster home over a longer period of time, there was no basis for voluntary care. 31. The applicants appealed to the Administrative Court of Appeal, maintaining their claims and adding that they had never tried to intervene in the public care of their children but fully cooperated with the authorities in every way possible. They had fully understood that reunion with their children would have to be a gradual process, but it was important that their parent-child links did not disappear. In their view, there was no evidence of any risk that they would flee abroad with their children. Moreover, they considered that the Social Council had based its assessment on old investigations which were no longer relevant. They also questioned for how long the public care would continue, since that might jeopardise the connection between them and their children. They submitted, inter alia, medical certificates and a written observation dated 12 October 2009 and issued by an associate professor concerning the investigations carried out by the Social Council. 32. Both the Social Council and the children’s legal representative contested the appeal. They stressed that all three children had developed positively but that they were still in need of a stable environment. They were undergoing treatment at the BUP due to their special needs. The commitment shown by the applicants was positive for the future, but the deficiencies in care which had been evident when the children were taken into public care still existed. 33. On 15 April 2011, after holding an oral hearing, the Administrative Court of Appeal upheld the lower court’s judgment in full. It first found that the material in the case indicated that the children still had special needs but that they had developed well since being taken into public care. The court further considered that, although the applicants had participated in activities and improved their understanding of A’s special needs relating to his ADHD, they still lacked a more profound understanding of their daughters’ special needs and of their own shortcomings in caring properly for their children. Thus, it concluded that the applicants were not currently in a position to meet their children’s special needs and provide the care they required, for which reason the children had to remain in the foster homes. Since the applicants opposed such care, it was necessary to maintain the public care. 34. Upon further appeal by the applicants, the Supreme Administrative Court refused leave to appeal on 15 June 2011. D. Contact restrictions
35. On 25 May 2009, when the Social Council decided to take A, B and C into immediate public care, it also decided to keep secret the address of the children’s foster homes and not to grant the applicants contact rights to visit their children. These decisions were confirmed on 10 June 2009 by the Administrative Court. Upon appeal by the applicants, the Administrative Court of Appeal decided, on 6 August 2009, to strike the case out of its list of cases (see paragraph 15 above). 36. On 26 August 2009, the Social Council decided to continue to keep secret the address of the children’s foster homes and to limit the applicants’ contact rights by not allowing any visits. The applicants appealed to the Administrative Court, which quashed the Social Council’s decision and, as concerned the contact rights, referred the case back. Consequently, on 16 October 2009, the Social Council issued a new decision denying the applicants any contact rights. In accordance with Section 14, paragraph 3, of the 1990 Act, this decision was reassessed by the Social Council on 23 November 2009 but it found no reason to change the previous decision since it considered that there was still a risk that the applicants would intervene in the care of the children if granted contact rights. 37. The applicants appealed against the decision, demanding that it be reversed. They also requested that at least the first applicant be allowed to visit the children. The applicants pointed to the fact that the children had said that they missed them and they stressed that all allegations concerning any sort of abuse were groundless. They denied that they had previously tried to evade the social authorities and emphasised that, even if the authorities believed that there was such a risk, this should not prevent them from being granted contact rights in the presence of representatives of the Social Council. They were also willing to hand over their passports to the authorities. 38. The Social Council contested the appeal. It stated that there were strong reasons to believe that the applicants would intervene in the care of the children and stressed that it was necessary to decide on total restrictions in order to keep the children’s residences secret. If the children’s location was revealed, they would have to be moved to new foster homes. It submitted a document issued by the director of the treatment centre where A had been observed which, among other things, stated that A had said that he missed his mother but had also expressed a wish to be like other children and live in a family where he could feel safe. To the staff at the treatment centre, he had described occasions when he had felt unsafe, such as when he and his siblings had lived alone with the first applicant and when he had been beaten by the second applicant. Since A had been placed at the treatment centre, he had developed and his ability to follow routines had greatly improved. It was of utmost importance that this positive development continue. If A were to meet the applicants, the negative consequences would significantly outweigh the positive. A would suffer from a conflict of loyalty which would seriously impede his positive development. 39. On 10 December 2009, after holding an oral hearing, the Administrative Court upheld the Social Council’s decision. It noted that the applicants had been prohibited from visiting their children for six months and stressed that such extensive restrictions required exceptionally strong grounds. In the court’s view, the applicants were not willing to cooperate with the authorities and had repeatedly demonstrated a tendency to evade the Social Council’s investigations into their family situation. It further noted that all of the children were in need of special care and stability in order for their development to progress positively. On the basis of the investigation the court found that if the applicants were granted contact rights to visit the children, there was a real risk that the second applicant, in particular, would intervene in the public care of the children. Moreover, the court considered that since there was a risk that the children’s residence addresses would be disclosed even if the first applicant were to visit the children alone, she could not be allowed any contact rights alone either. In reaching this conclusion, the court had regard to the best interests of the children and Article 8 of the Convention. 40. The applicants appealed against the judgment to the Administrative Court of Appeal, maintaining their claims. They stressed that the allegation of violence at home was completely unsubstantiated and that the Social Council’s investigation was insufficient and could not form the basis for the complete prohibition of any contact between them and their children. All three children had said that they missed their parents, in particular their mother, for which reason a supervised visit of the first applicant with her children should be authorised. They had not seen their children for ten months and not even been allowed to talk to them on the telephone or write to them. Moreover, they were ready to hand in their passports and meet the children in a neutral location to eliminate any concerns that the authorities had about them “fleeing” with their children. In the applicants’ view, the prohibition on seeing their children violated Article 8 of the Convention. 41. The Social Council maintained that its decision was justified under the Convention and should be upheld. It was true that A and B had expressed the wish to meet their parents. C had not done so, but this was probably because of her late language development. Still, due to the risk that the applicants might escape with the children or obstruct their current care, and since the children had extensive care needs into which the applicants lacked insight, there was a need to prohibit contact rights. Moreover, currently there was no dialogue between the Social Council and the applicants and this would have to be re-established before contact rights could be granted. 42. On 8 April 2010, after holding an oral hearing, the Administrative Court of Appeal rejected the appeal. It first noted that, despite the applicants’ submissions, it did not appear that the second applicant had altered his negative attitude towards the Social Council and was prepared to cooperate. The appellate court further observed that Article 8 of the Convention did not contain a general prohibition on complete contact restrictions. Still, it shared the applicants’ concern that the complete contact restriction could harm the children and noted that the Social Council had a great responsibility to ensure that the children’s need for contact with their parents was met. However, for this to be possible, the parents had to cooperate. Moreover, the court had to evaluate whether the combined risks that contact rights would entail for the children’s health and development outweighed the corresponding risks if there were no contact. In the present case, the court considered that the only way to find suitable solutions to avoid the risks involved in contact rights between the applicants and the children was for the Social Council to plan the visits carefully together with the applicants and for the applicants to be willing to receive the help and support that they needed. As long as these conditions were not fulfilled, it would not be possible to arrange the contact. Furthermore, the appellate court had carefully considered the possibility of granting only the first applicant contact rights with the children. However, in view of its findings, and the first applicant’s passive attitude, it did not consider this a viable option. Thus, a complete prohibition on contact remained the sole solution in the current situation. 43. Upon further appeal, the Supreme Administrative Court refused leave to appeal on 4 June 2010. 44. On 22 September 2010 the Social Council decided that the first applicant should be allowed to meet the children on one occasion during the autumn of 2010 while the second applicant should not be allowed to meet them. Following an appeal by the applicants, the Administrative Court and the Administrative Court of Appeal upheld the decision in judgments delivered on 20 January 2011 and 15 May 2011 respectively. On 15 June 2011, the Supreme Administrative Court refused leave to appeal. 45. On 22 December 2010 the Social Council decided that the first applicant should be allowed contact rights with the children on two occasions between January and June 2011 and that, during the same period, the second applicant should be allowed to meet the children on one occasion. 46. On 29 June 2011 the Social Council decided that the applicants should be allowed contact rights with their children according to a contact plan. The plan specified that the applicants should meet with their children once every third month, for two hours each time, in a place decided by the Social Council and where staff from the Social Council would be present, as well as a counsellor and interpreter (to translate if the second applicant spoke Persian with the children). Moreover, telephone contact was allowed twice a year, for no more than 20 minutes, in a controlled setting. 47. The applicants appealed against the decision to the Administrative Court, requesting that the contact restrictions be lifted. They stressed that their meetings with their children had gone very well and that they had followed carefully all of the Social Council’s instructions. The children had been happy to see them and hugged them. The fact that they had later had a reaction in their foster home was normal since the meetings had been short and had taken place in an unnatural environment. Moreover, the children had been given negative information about their parents which had affected them and they probably felt a conflict of loyalty between their parents and their foster home. The applicants questioned how a reunion of the family would be possible if they were only allowed to meet their children so rarely and for a short time. They also repeated that they had never escaped with their children to Iran but that they had travelled there once every year to visit relatives. In fact, they had never tried to intervene or obstruct the public care of their children. Instead, they had cooperated and done all they had been asked to do. Both applicants had sessions with psychologists and the second applicant attended a programme called “alternatives to violence”. In this respect, he underlined that he had never been aggressive or violent toward his children. 48. The Social Council maintained its decision. It noted that reunion could only take place once the children’s need for care had ceased. So far the meetings between the parents and children had gone well. B and C had had no negative reactions to the last meeting with the applicants but A had had nightmares. The next meeting would take place in an apartment, to give a more natural environment. The children would also meet with their older half-brother. Moreover, the children saw each other on a regular basis, at least every third week, to play and be together. The Social Council also submitted reports of its investigations into the children’s current situation and development. 49. On 27 September 2011, after an oral hearing, the Administrative Court rejected the appeal. It noted from the outset that only contact restrictions which were necessary for the purpose of the care order were allowed, and that the best interests of the children should be paramount when making this evaluation. The court then observed that all three children were receiving extra help and assistance to develop and function in their social settings. They were developing well in their foster homes. It further noted that the applicants’ meetings with their children had gone well and that their contact rights had been extended. However, in the court’s view, the applicants had accepted various measures because the Social Council had told them to do so, not because they felt that they were necessary. Thus, having regard to all the circumstances of the case, the court found that the contact restrictions decided by the Social Council were necessary for the time being. It noted that the Council regularly had to re-evaluate the need for contact restrictions, which opened the way for fewer restrictions in time to come. 50. The applicants appealed against the judgment to the Administrative Court of Appeal and requested that their contact restrictions be eased to allow them to meet their children once every other month. They maintained their submissions as presented before the lower court. Moreover, the second applicant stated that he had realised during his therapy sessions that he had been “hard” towards the first applicant, which he realised must have affected the children negatively. However, he maintained that he had never been violent towards his children. 51. The Social Council opposed any changes to the contact restrictions. In its view, the current restrictions were necessary to ensure the children’s continued positive development. It acknowledged that the last two meetings between the applicants and their children had gone well, but stated that the telephone conversation had not been satisfactory since the second applicant had asked questions to try to find out where the children were living and A had felt pressured and sad afterwards. 52. On 20 March 2012 the Administrative Court of Appeal granted the appeal and ordered that the applicants should have contact rights with their children once every other month. In all other parts the contact plan was maintained. The court noted that the second applicant had begun to have better insight into his behaviour and could acknowledge that the way he had sometimes treated his wife could be considered as violence. This was a first step in a process of change with the goal of the children returning home. A part of this process was the contact between the parents and their children. The appellate court found that contact restrictions had been necessary in the instant case but considered that, having regard to the current situation, it should be possible to extend the contact rights as requested by the applicants. 53. Neither the applicants nor the Social Council appealed against this judgment to the Supreme Administrative Court. E. Further proceedings
54. The decisions to keep the children in public care and to limit the applicants’ contact rights have continued to be reconsidered on a regular basis as stipulated by domestic law (see the part on relevant domestic law, paragraph 68 below). Most of these decisions have not been submitted to the Court, but it appears from the parties’ submissions that, on 27 March 2013, the Social Council decided to keep the children in public care and rejected a request by the applicants to extend their contact rights. The Administrative Court rejected the applicants’ appeals against these decisions. 55. However, on 4 September 2013, the Social Council granted the applicants extended contact rights, allowing them to meet with the children for three hours every two months and to have telephone contact with them twice a year. 56. The applicants appealed against the decision to the Administrative Court which, on 20 January 2014, increased the applicants’ contact rights by one hour, that is to four hours in total, every other month. It considered that this was in the best interests of the children. 57. Upon further appeal by the applicants, the Administrative Court of Appeal upheld the lower court’s judgment on 23 April 2014. 58. On 10 December 2014 the Social Council decided to maintain the public care order and not to alter the contact rights. 59. The applicants appealed to the Administrative Court, demanding that the public care order be lifted or, at least, that they be granted increased contact rights. 60. The children’s legal representative supported the Social Council’s decisions as she considered that it was in the best interests of the children. They had expressed the wish to stay in their foster homes and, while they said that the meetings with their parents went well, they did not wish them to be increased. 61. On 24 February 2015, after having held an oral hearing, the court rejected the appeal. It noted that the second applicant had continued to show aggressive behaviour towards social workers and that he had been convicted, inter alia, of making unlawful threats (14 counts), threatening a public official (15 counts), slander and abusive conduct against a public official (5 counts) and sentenced to one year and six months in prison. Moreover, the first applicant had been unable to take an active part and be available to her children during their meetings. The applicants had also intervened in the public care of their children, in breach of the contact restrictions. They had, for example, waited outside B and C’s school and followed them to their foster homes, and they had also gone to A’s foster home, making the children afraid and anxious. They had also sent letters and cards directly to the foster homes, despite an agreement that such items should be sent via the social authorities, in order to avoid upsetting the children. The court found that there was therefore no possibility to terminate the public care or transform it into voluntary care. Furthermore, all the children wanted to stay in their foster homes and the current level of visits was working well for the children. Thus, there were no reasons, according to the court, to depart from the well-functioning scale of contact, which was also in line with the will of the children. 62. The applicants appealed against the judgment to the Administrative Court of Appeal. On 22 April 2015, after having held an oral hearing, the appellate court upheld the lower court’s judgment in so far as it concerned the continuation of the public care. It considered that the applicants still lacked insight into their inability to care of their children, which had led to the public care at the outset, since they continued to blame the social authorities. However, the court extended the contact rights to six hours every other month. It noted that there was nothing to indicate that the scale of contact could not be moderately extended without negatively affecting the children’s care. It was important for the well-being of the children that the time spent with their parents provided rewarding moments and had potential to develop their relationship. They should therefore be given enough time during each meeting to share activities and be together. 63. The Court has not been informed of further developments in the case at the domestic level. II. RELEVANT DOMESTIC LAW
64. According to Section 1 § 2 and Section 2 of the 1990 Act, compulsory public 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 guardian. The decision to place a young person in public care is made by the Administrative Court, following an application from the Social Council (Section 4). 65. Under Section 6 of the 1990 Act, the Social Council may order the immediate taking into care of a young person (“provisional care order”) if it is likely that he or she needs to be provided with care under this Act and a court decision in the matter cannot be awaited owing to the risks to the young person’s health or development or because the continuing investigation could be seriously impeded or further measures prevented. Section 7 provides that a provisional care order shall be put before the Administrative Court which shall rule on whether the order shall be upheld pending the court’s judgment regarding the application for public care. 66. Section 1, paragraph 5, of the 1990 Act states that the best interests of the young person shall be decisive when decisions are taken under the Act. Paragraph 5 was introduced in 2003 to strengthen the child perspective in the Act and to adapt the legislation to the Convention on the Rights of the Child. 67. According to Section 11 of the 1990 Act, the Social Council decides on the details of the care, in particular, how the care is to be arranged and where the young person is to live. Moreover, under Section 14, the council shall ensure that the young person’s need for contact with his or her parents or other guardians is met to the utmost possible extent. If necessary, the council may decide how this contact is to be arranged. In the preparatory works to the 1990 Act (Government Bill 1979/80:1, p. 602), it is noted that the provisions on access restrictions are to be applied restrictively. The Social Council must have strong reasons to decide on access restrictions between a young person and his or her parents. However, it can happen that the parents intervene in the care in an inappropriate manner. Their personal situation, for instance serious abuse or a grave mental illness, may be such that they should not see their child for a limited period of time. Moreover, Section 14 gives the Social Council the possibility to decide to keep a young person’s place of residence secret from his or her parents. This should only be done in very exceptional cases (Government Bill 1989/90:28, p. 74). 68. The care order shall be reviewed by the Social Council at least every six months and the access restrictions and secrecy of the child’s location at least every three months, pursuant to Sections 13 and 14 of the 1990 Act. Appeal against the council’s decisions lies to the administrative courts (Section 41). 69. Section 21 of the 1990 Act states that when public care is no longer needed, the Social Council shall order its termination and make careful preparations for the young person’s reunification with his or her custodians. 70. According to Chapter 6, Section 1, of the Social Services Act, care outside a young person’s home shall be provided either in a foster home or in a home for care or residence. Moreover, the care should be designed to promote the affinity between the young person and his or her relatives and others closely connected to him or her, as well as contact with his or her home surroundings. III. RELEVANT INTERNATIONAL LAW
71. The Convention on the Rights of the Child contains, in so far as relevant, the following provisions:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. THE LAW
I. SCOPE OF THE CASE
72. The Court notes that, in its decision on admissibility of 16 December 2014 (S.J.P. and E.S v. Sweden, (dec.), no. 8610/11) it declared admissible the complaints concerning the proceedings taking the children into public care, the proceedings to keep the children in public care and the proceedings relating to the continued complete prohibition on contact for the applicants with their children. The Court further declared the remainder of the application inadmissible for non‑exhaustion of domestic remedies. In particular, it found that the applicants had failed to exhaust domestic remedies in relation to the Administrative Court’s judgment of 10 June 2009 concerning the immediate public care order (paragraph 75 of the decision) and the Social Council’s decision of 22 September 2009 to maintain public care (paragraph 76 of the decision). 73. However, in their observations on the merits, the Government pointed out that the applicants had in fact exhausted domestic remedies as regards these two sets of proceedings. Thus, they had appealed against the Administrative Court’s judgment to the Administrative Court of Appeal which struck the case out on 6 August 2009. They had also appealed against the Social Council’s decision to the administrative courts, where the Supreme Administrative Court, as a last instance, had refused leave to appeal on 15 June 2011. The applicants, in their comments on the Government’s observations, asked for these proceedings to be included in the Court’s consideration of the case on the merits. 74. The Court observes that the applicants failed to submit to the Court copies of the relevant domestic decisions and judgments mentioned above, despite having been informed by letter dated 21 March 2011 that they must inform the Court about any major developments regarding their case and submit any further relevant decisions of the domestic authorities. They were further requested, in a letter from the Court dated 5 September 2012, to inform the Court of any developments in their case at the domestic level since 2 December 2010, when the Court last received a letter from them, and submit copies of all decisions and judgments rendered during this period. While the applicants replied to the letter, they did not mention the above decisions or submit copies of them. The applicants also had the opportunity to furnish the relevant documents when the application was communicated to the Government and the parties were invited to submit their observations. 75. In these circumstances the Court considers that the applicants, who were represented by a lawyer, have to bear the consequences of their failure to submit the necessary documents to the Court, thereby hindering it from carrying out its work properly. It will therefore continue its consideration of the application on the basis of the parts that were declared admissible on 16 December 2014. Still, in order to consider correctly the proceedings which have been declared admissible the Court has to put them into their context, which inevitably means to some extent having regard to the related proceedings. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
76. The applicants complained under Article 8 of the Convention that their right to family life had been violated through the Swedish authorities’ decision to take their children into public care and to keep them there, as well as through the authorities’ decisions to restrict their contact rights with their children. Article 8 reads insofar as relevant:
“1. Everyone has the right to respect for his private and family life ... . 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.”
77. The Government contested that argument. A. The parties’ submissions
1. The applicants
78. The applicants maintained that there had been no need to take their children into public care as they were, and always had been, capable of caring for their children. They stressed that they had never tried to flee to Iran, they had simply visited the second applicant’s father, as they did every year. Moreover, the social authorities’ investigations and reports contained incorrect information about them and were not objective. Thus, the national courts had reached their conclusions on incomplete and incorrect information. 79. Moreover, according to the applicants, it was the social authorities’ intervention at the airport to take the children from them which had created shock and chaos at the airport and caused the children great trauma, resulting in insecurity and anxiety. Thus, in their view, it was the authorities, not them, that had caused the children to show symptoms of post-traumatic stress disorder. 80. The applicants further argued that the social authorities had made no efforts to work towards reuniting the family. This continued to be the case, despite efforts by the applicants and positive changes, such as good cooperation with the social services, the applicants seeing a psychiatrist according to the programme requested by the Social Council, attending ADHD courses in order to better understand A’s needs, and positive feedback from the visits with the children. 81. Concerning their restricted contact rights, the applicants emphasised that it took two years from the immediate public care decision before they were both allowed to meet with their children. During this time, the Social Council based its decisions on the assumption that the applicants would intervene in the care of their children. However, they had no evidence to support that assumption and the applicants had cooperated in every way with the social authorities. Moreover, the continued contact restrictions were kept in place despite the fact that the visits went well and the social authorities are supposed to work towards a reunion of the family. In their case, the authorities had instead obstructed the possibilities for the family to reunite. Their right to family life had thus been violated. 2. The Government
82. The Government argued that the domestic decisions and judgments, while interfering with the applicant’s family life, were in accordance with the law, pursued a legitimate aim – the protection of the health and development of the children – and had been proportionate to the aim pursued. There had thus been no violation of the applicants’ rights under Article 8 of the Convention. 83. They emphasised the deficiencies in the applicants’ ability to care for A, B and C that had emerged from the investigation by social authorities, which included information that A and B had been subjected to physical abuse. Some of the other grounds relied on for taking the children into public care might appear less serious considered individually, but taken together they offered a clear picture of the applicants’ lack of ability to care for the children, which in turn had had a negative impact on the children’s development. They also submitted that regard must be had to the fact that the applicants had shown a lack of will to cooperate with the domestic authorities and that the second applicant, in particular, had interfered in the care of the children in an inappropriate way. 84. The Government observed that the Social Council had based their decisions on public care and contact restrictions on a thorough investigation. Moreover, throughout the domestic proceedings, the responsible courts had unanimously found that it was necessary to take the children into public care and to extend the care order. The domestic courts had also found that contact restrictions were necessary, although the scope of these restrictions was amended in later judgments to allow more contact between the applicants and their children. The applicants were represented by legal counsel throughout the proceedings, as were the children, who had their own legal counsel to protect their interests and who supported the protective measures. Furthermore, oral hearings were held where experts, including child psychologists, were heard. Against this background, the Government considered that the domestic authorities had had a very solid basis for their assessment of the necessity of the measures complained of. 85. Further, the Government stressed that the domestic legislation was in line with the Convention standards and that the national courts had assessed the proportionality and necessity of the measures each time they had considered the case. Their reasoning had been nuanced and well-justified and the conclusions reached had been both relevant and sufficient for the purpose of Article 8 § 2. The measures had been in the best interests of the children, which should always be a primary consideration. Having regard to the margin of appreciation, there had to be strong reasons for the Court to find that the measures complained of amounted to a violation of Article 8. 86. As concerned the contact restrictions, the Government argued that particular attention should be given to the fact that the applicants had failed to cooperate with the domestic authorities. For instance, the applicants had contacted the children in ways they were not supposed to, thereby interfering in the care of the children in an inappropriate manner and demonstrating a lack of ability to put the interests of the children before their own. Also, the second applicant had behaved in a threatening manner towards the social services on several occasions and the seriousness of this was reflected in the fact that he was sentenced to imprisonment for that behaviour. Moreover, A, B and C had developed in a positive manner since being placed in foster homes. It was therefore understandable that the domestic authorities were reluctant to allow more extended contact rights, as it could potentially have a detrimental effect on the children. Finally, the Government considered that it had to be taken into account that the contact restrictions had become less strict over time and that the relations between the applicant and their children had been preserved. 87. Having regard to all of the above, as well as to their margin of appreciation, the Government maintained that the relevant decisions and judgments of the domestic authorities regarding the public care, contact prohibition and contact restrictions had been proportionate to the aim pursued, which was the protection of the children’s health and development. The interferences in the family life of the applicants had therefore been necessary in terms of Article 8 § 2 and thus no violation of the Convention had occurred in the instant case. B. The Court’s assessment
88.

Outcome for Article 8: no_violation