EHRM, 19-05-2022, nr. 21574/16

At 1 a.m. on 18 October 2007, when she was around two weeks old, X was admitted to a hospital's accident and emergency department, to which she had been taken by her father and the applicant, who were married at the time. A physician diagnosed several fractures to her body and skull, bruises and cerebral haemorrhaging. Later that same day a consultant at a children's hospital reported the incident to the social services (stadsdelsnämnden), which opened an investigation and decided to place X and Y (the couple's one-year old son) in emergency care. X was placed in an emergency family home (jourhem) on 18 October 2007 and Y in the same home on the following day. Applications for care orders in respect of both children were consequently lodged. Both parents were remanded in custody from 18 to 20 October 2007 and again from 23 October to 19 November 2007.

X was examined on two occasions and the following injuries were found and documented: swelling and greenish-blue discolouration of the left upper and lower eyelids; a fresh fracture to the right upper-arm; an old fracture to the left clavicle; a complex (splinter) skull fracture on both sides of the head; severe swelling of the soft tissue outside the cranium on the left side of the crown and haemorrhaging on the corresponding part of the crown; an ankle fracture in the lower part of the tibia in both the right and left legs; fractures in the uppermost part of the right tibia; haemorrhaging in the retina of the right eye and fresh haemorrhaging under the dura mater in several places on both sides of the cranium as well as fresh haemorrhaging under the arachnoidea encephali under the fractures of the left parietal bone and also in adjacent grooves of the cerebrum. A medical opinion dated 9 November 2007 stated that the injuries presented by X had been inflicted through physical violence on at least two occasions and that most of the injuries could not be explained by normal care of a child. It also stated that all the documented injuries gave a picture of repeated blunt-force violence, possibly a mixture of severe shaking and direct violence. An indictment for abuse was lodged against the parents on 28 November 2007.

On 12 December 2007 the County Administrative Court (länsrätten, as of 15 February 2010 förvaltningsrätten) granted the social services' care-order applications, finding that an adult in X's family had caused X's injuries, more than likely in Y's presence. It concluded that by failing to protect X the parents had demonstrated that they lacked sufficient parenting skills, a fact which entailed concrete risks to the health and well-being of their children. The applicant and X's and Y's father appealed against the judgment in so far as it concerned the care order in respect of Y.

On 14 January 2008 the District Court (tingsrätten) acquitted the applicant on the criminal charges. X's and Y's father was convicted on several counts and sentenced to one year's imprisonment. He appealed against the judgment in so far as he had been found guilty. The prosecutor appealed against the applicant's acquittal and the partial acquittal of X's and Y's father.

On 15 January 2008 the social services decided to restrict the parents' contact rights with the children to two hours every month, in the presence of a contact supervisor, and telephone contact with Y once a week. The parents appealed against the decision. A meeting between the social services and the parents and their network, including a number of friends and relatives, was held on 29 February 2008. According to documents submitted to the Court, the social services informed during the meeting that whether the circumstances giving rise to the public care persisted was to be examined every six months. On 7 March 2008 the social services wrote to the parents, stating that they thought that there had been too many people present at the meeting in order for it to function well, and proposed a new meeting with the parents and only two persons to support them, in addition to their counsel. On 10 March 2008 the social services informed the applicant that they could not offer therapy, but social counselling (samtalskontakt).

On 28 March 2008 the Administrative Court of Appeal (kammarrätten), having held on the same day a hearing on the appeal against the care order issued in respect of Y (see paragraph 6 above), delivered an interim decision to lift the care order in respect of him. Its judgment on the merits was then delivered on 21 April 2008. It overturned the County Administrative Court's judgment, as it considered that even in the event that X had been a victim of violence at home, that circumstance did not necessarily imply a similar risk in respect of Y.

On 20 May 2008 the social services decided to move X from her emergency family home to a foster home (familjhem) as of 13 June 2008. The proposed ‘plan’ for the care arrangement (vårdplanen) stated that the social services had asserted that the placement would be long term and that a condition for its discontinuation was that it would have to be established that X's parents had not subjected her to violence and thereby caused her serious injuries or that if one of the parents had not done so, that parent could ensure that X would be protected from further abuse. X's and Y's father appealed against the decision, arguing that it would be better for X to remain where she was at that time, in particular as his criminal conviction would soon be examined on appeal (see paragraph 7 above). The applicant joined the appeal. X's and Y's father also requested that the decision not be implemented before it had become final.

On 30 May 2008 the County Administrative Court upheld the decision on contact rights of 15 January 2008 (see paragraph 8 above). It stated that the possibility to limit the contact between biological parents and children in public care should be used restrictively and that restrictions on contact should only be imposed where necessary in the light of the purpose of the public care. Furthermore, it emphasised that public care should not last longer than necessary and should be arranged so as to facilitate family reunification as soon as the child's well-being made it possible. In order to achieve that purpose, close and good contact between the child and his or her family during the care period was necessary. As to the case before it, the County Administrative Court took account of the circumstances as they had been when the social services had taken the decision under review and particularly the fact that it had been taken a very short time after the County Administrative Court had issued the care order (see paragraph 6 above). Furthermore, the County Administrative Court considered that, taking account of the particular circumstances relating to X's injuries, health and development as well as her extensive care needs and the short time she had been in public care, the purpose of the care order could be jeopardised if the applicant and X's and Y's father were permitted more contact than that which had been decided in the decision of 15 January 2008. It therefore found no reasons to set that decision aside. The parents appealed against the County Administrative Court's judgment to the Administrative Court of Appeal (see paragraph 14 below).

On 9 June 2008 the County Administrative Court granted the request that the decision of 20 May 2008 not be implemented before it had become final (see paragraph 10 above). The Social Welfare Committee appealed against the County Administrative Court's decision and, on 13 June 2008, the Administrative Court of Appeal set it aside.

On 18 June 2008 the County Administrative Court upheld the decision concerning the placement of X in a foster home (see paragraph 10 above). According to domestic law, special reasons had to be present for a child to remain in an emergency foster home for a period longer than two months after the Social Welfare Committee had completed their investigation and the County Administrative Court did not find any such special reasons to be present. Neither the applicant nor X's father appealed against the County Administrative Court's judgment, which thus became final.

On 10 November 2008 the Administrative Court of Appeal upheld the County Administrative Court's judgment of 30 May 2008 concerning the decision of 15 January 2008 to restrict contact rights (see paragraph 11 above). The Administrative Court of Appeal noted that X had been developing well in her foster home, despite her lasting injuries. In the light of that and other considerations, it found that more frequent contact would risk impeding the attachment process in the foster home and have a negative impact on the peace and security of which X was in need.

On 23 March 2009 the Court of Appeal (hovrätten) decided on the appeals against the District Court's judgment in the criminal case (see paragraph 7 above). X's and Y's father was convicted on all counts, including the aggravated assault of X, and sentenced to four years' imprisonment. The Court of Appeal found that X's and Y's father had assaulted X in the period from 3 to 17 October 2007, either on his own or jointly and in collusion with someone else, by subjecting her to physical violence through which pain and injuries including bruising, haemorrhages in her head and brain and fractures to her skull, leg(s) and foot joints had been inflicted on her. It also found that he had assaulted X on 17 or 18 October 2007 by subjecting her to physical violence that had inflicted pain on her and fractured one of her arms. The assault was classified as grievous since life-threatening cranial injuries had been inflicted on X and since her father had shown particular ruthlessness and brutality. The applicant's acquittal was upheld.

On 8 September 2009 the social services delivered a new decision on contact rights, in which it was decided to continue the arrangement of supervised monthly visits of two hours.

On 23 November 2009 the County Administrative Court, reviewing the social services' decision, increased the applicant's supervised contact rights to once every other week for two hours at a time. It noted that even though the care arrangement at that time appeared to be long term it was nonetheless important that the child and her parents maintain meaningful contact.

On 20 April 2010 the Supreme Court (Högsta Domstolen) refused X's and Y's father leave to appeal against the Court of Appeal's judgment in the criminal case (see paragraph 15 above).

On 13 July 2010 the applicant filed for divorce from X's and Y's father.

On 15 July 2010 X's and Y's father started serving his sentence (see paragraph 15 above).

On 19 July 2010 the social services received an application from the applicant to have the public care of X terminated. In the alternative, she applied for a decision that X be cared for in her home instead. She stated that the grounds for taking X into public care no longer existed, as she had applied for a divorce from X's and Y's father and for sole custody of the children, and that she was capable of protecting X from further abuse. On 29 October 2010 the social services referred X to an assessment at a unit for child psychiatry in order to assess her development as part of its examination of her possible return to the applicant's care. Several meetings between the applicant and the social services were also conducted as part of that same examination, including in her home.

On 17 February 2011 the District Court issued a divorce decree in respect of the applicant and the children's father.

On 22 March 2011 the social services opened an investigation under the Social Services Act (see paragraph 54 below). It was stated, among other things, that doubts had emerged regarding the applicant's ability to protect X based on how she had responded previously to the offences to which X had been subjected and on her present thinking about X's future needs. Furthermore, the social services considered that it had emerged that there were serious deficiencies in the applicant's caregiving skills regarding her ability to understand and meet X's needs. Those difficulties had emerged both in her contact with X and in assessments of their interaction. The investigation also referred to opinions from two child psychiatric and psychological services, which had found that X had a strong attachment to and dependence on her foster parents, and that removing her from her foster home would risk seriously harming X's health and development.

On 5 April 2011 the social services refused the applicant's application to have the care order in respect of X lifted (see paragraph 21 above). The child's appointed representative had filed written submissions on the matter.

On 8 July 2011 the County Administrative Court, reviewing the social services' decision of 5 April 2011, found that the care order could not be lifted. It based its judgment in part on findings concerning the applicant's attitude towards and behaviour in relation to the abuse of which it considered X to have been the victim, concluding that those factors meant that it was too early to conclude that the applicant would be capable of protecting X from abuse.

On 5 December 2011 the Administrative Court of Appeal reversed the Administrative Court's judgment of 8 July 2011, concluding that the care order could be lifted. It noted that X had been placed in care because she had been the victim of ill-treatment at home and that her father had been convicted on that account. However, her father was serving a lengthy prison sentence at the time, her parents had divorced and the applicant had sole custody of X (see paragraphs 15 and 18–22 above). There was therefore no longer any reason to uphold the care order.

On 21 May 2012 X's and Y's father lodged an application with the Supreme Court to have the criminal case reopened on the ground that substantial new evidence had been produced, notably medical information and opinions relevant to the question of X's injuries.

On 29 June 2012 the Supreme Administrative Court (Högsta förvaltningsdomstolen) upheld the Administrative Court of Appeal's judgment on lifting the care order (see paragraph 26 above).

The Supreme Administrative Court's judgment stated that the social services had emphasised that they had carried out examinations which demonstrated that X had particular care needs. She had a physical handicap which, together with the trauma that had been inflicted on her previously, had made her more fragile and sensitive than other children. It was furthermore stressed by the social services that X was very closely attached to her foster home and of an age at which breaking off her attachment would be very sensitive. In their assessment, it would entail a serious risk to X's health and development if she were separated from her foster family. They contended that the applicant had numerous deficiencies in her parenting capacities with regard to understanding and meeting X's particular needs. Moreover, X had no attachment to her. The child's own lawyer also opposed the application to have the care order lifted. On behalf of X he submitted that it would obviously be harmful to remove her from her foster parents, whom X perceived as her own parents. According to her lawyer, X felt safe in the foster home and was attached to her foster parents, whereas she had not formed an attachment to the applicant, who, the lawyer maintained, lacked parenting skills and did not understand her needs.

In its judgment, the Supreme Administrative Court emphasised that possible risks of harm to children in connection with being removed from their foster homes could not be taken into account to justify the continuation of a care order. The court set out that if such risks were present in a case they had instead to be countered by way of other legal measures, such as prohibitions on being removed or transfers of custody. As to whether the grounds for a care order were still present, the Supreme Administrative Court found that there was no longer any reason to believe that X's health and well-being were at risk owing to physical ill-treatment or to a lack of parenting skills on the applicant's part and held that the care order should therefore be lifted.

At a meeting on 12 July 2012, the applicant came with one of the child's grandparents, a friend and another person with a movie camera and a tripod. The social services presented a care ‘plan’ and the applicant was informed that they were considering applying for a transfer of custody, to which the applicant would not respond since her lawyer was not present. The social services proposed to follow up with another meeting the next day. It also reads in the social services' case file that the services during the meeting indicated to the applicant that it would be better for X if the applicant did not bring others when they met, to which the applicant had responded that she would continue to bring X's grandparent and by asking why the social services wanted to pressure her into being alone with X.

At a meeting with the social services on 22 August 2012, the applicant came with a psychologist, a friend, her lawyer and a person who intended to record the meeting as part of his making a film about X's life as a present to her. It emerged that the applicant did not consent to the plan presented — she demanded a plan that set out X's return to her care and that was limited in time until 31 October 2012. The social services stated that they could not consent to such a plan as they would apply for a transfer of custody (see the preceding paragraph). Furthermore, the applicant stated that she wanted to have her contact with X increased from every other week to every week. On 23 August 2012 it was decided to begin a new investigation under the Social Services Act (see paragraph 54 below) with a view to the Social Welfare Committee applying for a removal prohibition under section 24 of the Act with Special Provisions on the Care of Young Persons (see paragraph 56 below).

On 30 August 2012 the social services decided in the interim to prohibit the applicant from removing X from the foster home. The Government have maintained that that was decided against the background of Y, during a contact session in July 2012, telling X that she would soon be moving back in with him and the applicant, which, according to the social services, had made X sad, worried, afraid. She had started to cry and her foster parents had had to console her.

On 12 September 2012 the County Administrative Court confirmed the social services' interim decision, prohibiting X's removal from her foster home. It found it probable that a removal prohibition regarding X might be needed. Furthermore, it noted that X had been living in the foster home since she was eight months old and that she would soon turn five. She had formed an attachment to her foster parents and became worried and saddened by the idea of moving away from them. She had only met the applicant a limited number of times.

On 26 September 2012 the Social Welfare Committee decided to apply to the County Administrative Court for a removal prohibition, as it deemed there to be a clear risk of harm to X's health and development if she were removed from her foster home.

On 19 October 2012 the County Administrative Court granted the social services' application for a prohibition on X's removal. In its judgment, the County Administrative Court reiterated that the applicant's contact with X had initially been set at two hours per month with a contact person present, before later being increased to two hours every other week with a contact person present, and that contact had only taken place without a contact person present during the two months between the judgment of the Supreme Administrative Court of 29 June 2012, in which the care order was lifted (see paragraphs 28–30 above), and the decision of 30 August 2012 imposing a temporary removal prohibition (see paragraph 33 above). In the reasoning provided for its judgment, the County Administrative Court noted that X was five years old and that she had lived in the foster home since she was just over eight months old. Furthermore, it noted that X had had fairly limited contact with the applicant and that the investigation in the case showed that X had put down roots in her foster home and regarded her foster parents as her family. The County Administrative Court found that it was apparent that there was a clear risk that X's health and development would be harmed if she was uprooted from the foster home, and since it was her attachment to the foster family that was important to X, a gradual removal also entailed a risk of harm. The County Administrative Court found that it was obvious that no change should be made to X's residential circumstances pending the ruling of the general court on the question of custody.

In December 2012 the social services initiated proceedings before the District Court to transfer custody of X from the applicant to X's foster parents. They deemed it necessary to act since, after the care order had been lifted, the applicant had increased the frequency of her visits with X to an extent which had become harmful to her.

On 7 February 2013 the Administrative Court of Appeal reversed the County Administrative Court's judgment of 19 October 2012 concerning the prohibition on X's removal (see paragraph 36 above). It noted that X had been in continuous contact with the applicant throughout her placement in care and knew that she was her biological mother. In conclusion it found that it had not been established with sufficient clarity why a step-by-step return to the applicant would harm X and, if so, what the concrete risks to her were. However, in the course of the custody proceedings before it, the District Court, on 23 July 2013, decided in the interim to grant the social services' application, as it considered it important not to make changes to X's situation before the case had been examined on the merits.

On 25 October 2013, after holding an oral hearing at which several expert witnesses were heard, the District Court granted the social services' application to have custody of X transferred to her foster parents. The applicant was granted contact rights with X on a fortnightly basis and on certain holidays. The court noted that X had lived in the foster home for more than five years, since she was about eight months old; that she was developing very well there; that she had settled in very well and considered it her home; and that she had expressed the wish to remain there. Furthermore, it noted that the increased frequency of the applicant's visits after the lifting of the care order had become harmful to X. The court found that it was very important for X to know if she was to continue to live in the foster home or move in with the applicant. Moreover, it took into account that during the first weeks of her life, X had been abused in her home and had sustained lifelong injuries, and that this made it especially important for her to feel the safety she did with her foster parents.

On 27 December 2013 the Supreme Court reopened the criminal case against X's and Y's father and remitted it to the Court of Appeal for a fresh examination on the merits. It found that in the light of new evidence and expert statements, notably relating X's vitamin levels and the circumstances of her birth, the courts' prior conclusion that X's injuries could not have any explanation other than grave violence could be called into question.

On 17 March 2015 the Court of Appeal acquitted X's and Y's father on the charges of assault against X, finding that, in the light of the new evidence presented, the case had not included any examination capable of explaining what had caused X's injuries.

On 23 March 2015, on an appeal by the applicant in the transfer-of-custody proceedings, the Court of Appeal, after holding an oral hearing, slightly amended the applicant's contact rights, primarily by granting contact every second weekend, including an overnight stay, with effect from 10 October 2015, but upheld the lower court's judgment concerning the transfer of custody (see paragraph 39 above).

In its judgment, the Court of Appeal noted at the outset that the relevant provisions in the Parental Act (see paragraph 53 below) had to be applied in accordance with the case-law of the European Court of Human Rights, and referred in particular to the cases of Görgülü v. Germany (no. 74969/01, 26 February 2004), R. v. Finland (no. 34141/96, 30 May 2006) and Levin v. Sweden (no. 35141/06, 15 March 2012). It further stated that the case required a complex assessment weighing X's need for stability and continuity against the right to respect for private and family life. The critical issue was which solution would be best for X under the circumstances at the time of its judgment. The Court of Appeal went on to examine in detail different aspects of the case relevant to the question of the transfer of custody.

Firstly, the Court of Appeal examined X's ties to her foster parents. It noted that she had been placed in the emergency foster home when she was only 16 days old and had gone to her foster home at the age of eight months. She had accordingly in effect lived there almost her entire life (six years and ten months at that time). She had settled in well with her foster parents and felt such stability and security there that she regarded it as her home. Furthermore, it found that X had very strong bonds with her foster parents, considering them her real parents. They gave her the care and comfort that she needed and she was developing in a positive manner. The court concluded that X's strong bonds with her foster parents weighed heavily in favour of a transfer of custody.

Secondly, the court assessed the contact between X and the applicant. It noted that they had had regular contact since January 2008, although for short periods each time. Up until the District Court's judgment in October 2013 (see paragraph 39 above), there had been contact supervisors and foster parents present, but for approximately one and a half years thereafter their contact had not been subject to any type of supervision. X and the applicant had had good contact and interplay; they had enjoyed each other's company during the visits and their relationship had developed in a positive manner. The Court of Appeal also noted, however, that the applicant had been accompanied by other adults during practically every visit, she had not spent any longer periods of time alone with X and had usually video-recorded the visits. The Court of Appeal found that the extent and nature of X's and the applicant's contact had not been such that a transfer of custody was not viable for that reason in itself.

Thirdly, the court examined the risk of separating X and her biological parents. It noted that X and the applicant had had regular contact while the former had lived in the foster home; the foster parents agreed that this should continue in the future and X had also expressed that wish. In view of this, it concluded that there was no noteworthy risk that X would lose contact with the applicant or be prevented from establishing contact with her father if custody were to be transferred to the foster parents. Instead, it considered that a transfer of custody would ensure that X was given the opportunity to develop her relationship with her biological family at an appropriate pace (i lugn och ro).

Fourthly, regarding X's attitude towards a transfer of custody, the court noted that the issue was of a rather legal nature which a child would naturally not be able to fully understand. The child could however have an opinion as to with whom he or she wanted to live, and according to the examinations that had been carried out by the social services, X had expressed the desire to remain in the foster home and was worried about having to move in with the applicant. The applicant had argued that the examinations had not been carried out neutrally. The court found however that X, at the age she was then, was too young to form an opinion to which any noteworthy importance could be attached. It observed that X, who was seven and a half years old at the time, had lived in the foster home since she was eight months old and had developed strong emotional bonds with her foster parents and regarded their home as her own. In view of this, it concluded that moving in with the applicant would appear rather alien to X. In this connection, it held that she was torn between two families and her negative reaction to the increase in the frequency of visits during the first half of 2013 and thereafter had more than likely been caused by uncertainty as to where she was going to live and her unwillingness to disappoint anyone. Therefore, it was deemed of the utmost importance for X's well-being to know with whom she would live in the future.

Lastly, the court examined the likelihood of returning X to the applicant's care. It stated in that context that the European Court of Human Rights had in several cases emphasised that States were under the obligation to strive for reunification when children had been temporarily taken into public care, where that was deemed to be in the child's best interests. Moreover, it emphasised that the Court required long term and extensive efforts to have been made to achieve family reunification before transferring custody could become an option. The Court of Appeal also observed that, as the child's best interests were the paramount concern in custody cases, the child's need for continuity might prevail over the possibility of reuniting the child with his or her biological parents. In this connection it noted that the applicant had been deemed suitable to have custody of X and that she planned to introduce her daughter to her home in a gradual manner. However, owing to the rather short time that X had lived with her biological parents, she could not have experienced any family life or acquired a sense of belonging with them. She had developed strong emotional bonds with her foster parents and regarded them as her parents. The Court of Appeal noted in particular that two of the expert witnesses had been of the opinion that even a gradual transfer of X would entail risks for her health and development. In view of these circumstances, and with particular regard to X's best interests, the court concluded that reunification was not realistic in the foreseeable future.

Having concluded that it would be in X's best interests to transfer custody of her to her foster parents, the Court of Appeal went on to state that her keeping contact with her biological mother and brother was also in her best interests, and that close and good contact between the three of them would be beneficial to X's development. It decided that, following an initial transition period, X would thereafter stay with the applicant essentially every second weekend. It emphasised that it was too early to decide how exactly further increases in contact, such as to include school breaks or major holidays, were to be carried out and that therefore it would not at that time take any decisions in that respect. It also emphasised that the foster parents, in cooperation with the applicant, had a responsibility to strive for increased and flexible contact between X and the applicant.

On 22 October 2015 the Supreme Court refused the applicant leave to appeal against the Court of Appeal's judgment.

On 15 April 2016 the applicant lodged her application with the Court.

In a judgment of 3 October 2017, which became final, the Stockholm District Court decided that X should have the right to a certain amount of contact with her father.

The applicant complained that there had been a violation of both her and her children's right to respect for their family life as provided in Article 8 of the Convention, which reads as follows: