1 I. the PARTIES A. the Applicants 1A. Surname: Johansson 2A. First
I. THE PARTIES
A. The Applicants
1a. Surname: Johansson 2a. First Name: Christer
Sex: Male
3a. Nationality: Swedish 4a. Occupation: Eco engineer
5a. Date and Place of Birth: 15 June 1969
1b. Surname: Johansson 2b. First Name: Annie
Sex: Female
3b. Nationality: Indian 4b.Occupation: Housewife/mother, Master of Arts
5b. Date and Place of Birth: 17 September 1971
1c. Surname: Johansson 2c. First Name: Domenic
Sex: Male
3c. Nationality: Swedish 4c. Occupation: Child
5c. Date and Place of Birth: 09 September 2001
6. Permanent Address: Fam Christer and Annie Johansson; Gudings Alva, 62346 HEMSE, Sweden
7. Tel. no.: +46-498-480458
8. Present Address:
9. Name of Representative: Ruby Harrold-Claesson
10. Occupation of Representative: Lawyer
11. Address of Representative: Övre Ströms Väg 12, SE-424 71 Olofstorp, Sweden
12. Tel. No: + 46 31- 70 20 385 Fax No: + 46 31-70 25 242
1 9. Name of Representative: Roger Kiska
10. Occupation of Representative: Attorney at Law
11. Address of Representative: Landesgerichtsstraße 18/10, 1010 Wien, Austria
12. Tel. no.: +43 1 904 95 55 Fax no.: + 43 1 904 94 54
Co-Representatives:
9. Name of Representative: Michael Farris (Home School Legal Defense Association)
10. Occupation of Representative: Lawyer
11. Address of Representative: P.O. Box 3000, Purcellville, VA 20134-9000, USA
12. Tel. No: + (540) 338-5600 Fax No: + (540) 338-2733
9. Name of Representative: Michael Donnelly (Home School Legal Defense Association)
10. Occupation of Representative: Lawyer
11. Address of Representative: P.O. Box 3000, Purcellville, VA 20134-9000, USA
12. Tel. No: + (540) 338-5600 Fax No: + (540) 338-2733
B. The High Contracting Party
13. Kingdom of Sweden
2
II. STATEMENT OF THE FACTS
Introduction
The Applicants, Christer and Annie Johansson, are a married couple. Christer is a
Swedish citizen and Annie is an Indian citizen. Their only child, Domenic – a citizen of
Sweden– was born on 9 September 2001. For the first seven years of his life Domenic lived in the joint custody of his biological parents.
Separation of the Child from his Parents
On 25 June 2009, at the age of seven years old, Domenic sat with his parents on board an airplane destined for India. As the commercial jet waited to taxi onto the runway for takeoff, police officers boarded the plane without a court order or any kind of preliminary notification, the Swedish authorities physically removed Domenic from the custody of his parents. He remains separated from his parents to this day.
In the months leading up to 25 June 2009, the Applicants had ongoing disagreements with the local school board over the issue of education. The age for compulsory schooling in
Sweden is seven years old and the parents had been educating their child at home while taking administrative steps to work with the authorities as contemplated by Swedish law. The right of parents to educate their children was, and remains, legal in Sweden1 and the Applicants believed they had fulfilled the necessary procedures to legally do so.
On 11 February 2009 the Applicants were fined by the Child and Education
Department for failing to enroll Domenic in school. On 27 May 2009, however, the County
Court refused to impose the fines. During the hearing the First Applicant informed the court
1 A school-aged child shall be allowed to fulfill the school obligation in other ways than what is stated in this law, if it appears to be a fully satisfactory alternative to the education otherwise available to the child according to the law. Possibilities [for the authorities] to have an insight into the activities shall be provided. Permission can be given for up to one year at a time. During this time it shall be tried how the operation turns out. Permission shall immediately be withdrawn if necessary insight into the operation is not granted, or if for other reasons it can be assumed that necessary circumstances for permission no longer exits. (Svensk författningssamling (1985:1100); 10 kap. Särskilda utbildningsformer).
3 that the family would be moving to India on 25 June 2009. The judge acknowledged this fact and no court order was issued prohibiting the Johansson’s from moving to India as planned.
Placing in Compulsory Care
After being taken from the airliner on June 25, 2009, Domenic was placed in temporary residential care. He was placed in a foster home in Väskinde in the Gotland region in late summer 2009, where he remains to this day. The initial justification for removal was that the child was not in school, even though school was not in session. Subsequent reasons for keeping Domenic in compulsory care were “a lack of care in both physical and psychological terms.”
Regarding physical care, the courts focused on two issues – Domenic’s lack of recommended but non-compulsory vaccinations and some evidence of cavities in his milk- teeth, both of which were unknown to the authorities until after they had seized him.
Regarding psychological care, the courts relied mainly upon the Applicants’ original plans to home-school Domenic during the first year of his education, stating that this would harm the child by preventing social contact with peers even though there was no evidence to support this assertion and in fact evidence to the contrary. The Johansson family had planned on working with orphanages in India, an environment rich and unique in social opportunities for young Domenic to experience.
Limitation of visiting rights
The Applicants appealed the Swedish authorities’ decision on compulsory care through the domestic court system. On 13 August 2009 the County administrative court in
Gotland (Länsrätten), by a 3 to 1 vote, upheld the Gotland social workers’ decision to place
Domenic in foster care. On 17 December 2009 the Stockholm Administrative Court of
Appeals (Kammarrätten) upheld the decision of the Länsrätten. Finally, on 27 January 2010 the Swedish Supreme Administrative Court (Regeringsrätten) refused leave to appeal. On 25
4 June 2010 an application (no. 27370/10) – wholly separate to the present application – was launched with this Court but was declared inadmissible by Judge Nußberger of Germany, sitting in a single-judge formation on 22 March 2012.
After the exhaustion of domestic remedies, the situation became intensely worse for the Applicants.
Further Restrictions of Parental Rights
In January 2010 contact between the Applicants and Domenic was further restricted by the Social Council to one hour every five weeks in the presence of a family therapist, plus a 15-minute monitored phone conversation.
On 22 November 2010 the First Applicant took his son from a supervised visit to his parental home where Domenic enjoyed two days with his natural family. Although the First
Applicant informed the police of the whereabouts of Domenic right away, he was detained, prosecuted and convicted by the Gotland District Court (Case no. B 990-09, on 21 January
2011) of a misdemeanour of unlawful deprivation of liberty of his son, Domenic. He was fined and received a suspended sentence (a two month prison sentence covered by the time spent in pre-trial detention).
In December 2010, the social authorities imposed a complete prohibition of access to
Domenic on the First and Second Applicants,2 and in March 2011,3 the prosecutor imposed a complete prohibition of contact with Domenic on his parents, notwithstanding the fact that the
Second Applicant was not involved in what the social workers labeled the "kidnapping"4 of
Domenic. These prohibitions have been continually renewed. Thus, from November 2010 to the present day, Domenic has not seen his natural parents.
2 Appendix. Social council: Prohibition of visiting rights, Beslut om Umgängesförbud, November 2010. 3 Appendix. Prosecutor: Prohibition of access. Beslut om kontaktförbud, 2011-03-08. 4 Händelseförteckning inlägg 2012-05-09: "Hovrätten har fastställt domen mot Christer Johansson med anledningen av kidnappningen (Min fetstil) av Domenic, två månaders fängelse som anses verkställt under häktningstiden, skyddstillsyn samt skadestånd enligt TR:s dom. /Marie Kransberg"
5 Transferring of Custody
On 9 December 2010 the sub-committee of the social council decided to transfer the guardianship of Domenic Johansson from his parents to an appointed guardian.5 The decision was adopted by the social council on 11 January 2011 and the social council initiated the case in the Gotland District Court for the transfer of the custody of Domenic to a specially appointed custodian, pursuant to Chapter 6, Section 7 of the Swedish Parents and guardianship Code, which is equivalent to the termination of the Applicants’ parental rights.
In its judgment of 13 June 2012 (Case no. T 1058-11) the Gotland District Court – the chief fact-finding court for the purposes of the present application – dismissed the Social council’s request, finding that transferring guardianship was not in the best interests of
Domenic.
(i) Social Council’s Submissions
The Social council argued that custody of Domenic should be permanently transferred from his parents to a specially-appointed custodian. They recommend an attorney, Margaretha
Dufvenmark, who had no previous experience as a legal guardian.
The Council mostly cited the Applicants post seizure relations with them to support their position, arguing that visits between the Applicants and their child had not gone well, that the First Applicant’s “abduction” of Domenic violated his dignity and that the
Applicants were not able to encourage Domenic to like his foster home. The Council also complained about the publicity of the case on the internet.
(ii) Annie and Christer Johansson Submissions
The Applicants rebutted all of the arguments raised by the Social Council in the
Gotland District Court.
5 Soc beslut om v-överflyttn. Helen Ahlsten. Initially, the choice of guardian fell on the lawyer, Helen Ahlsten, who accepted the appointment, then declined.
6 Firstly, any claims of physical harm have been greatly exaggerated. The Applicants testified that as far as dental cavities were concerned, their intention was that Domenic would get dental care in India, where they were traveling. The dental care in question would have been done free of charge by Annie’s brother, who is a dentist. Moreover, it was not required to vaccinate before departure. The family also wished to vaccinate their son in India believing that local doctors in India were more astute to decide which vaccinations were necessary for that part of India than a Swedish doctor.
Secondly, as far as school attendance was concerned and the “psychological harm” this allegedly caused, the Applicants explained that they intended Domenic to start school in
India. In the meantime Domenic had been home-educated in his first school year as both of the Applicants had the required educational levels to teach him. Annie Johansson in fact has two Master’s degrees. When he was taken into care, his state of development was good. He was able to speak both Swedish and English and he also had good abilities in other areas.
The Applicants argued that they have provided Domenic, their only son, with the best of care as good, loving parents and it is the Social Council that has harmed Domenic by taking him into care and through subsequent decisions they have made.
Lastly, the Applicants explained to the District Court that they have told the story about what has happened to their family on the Internet but they have not disclosed all the materials and information.
(iii) Witness Testimonies
During the Gotland District Court hearing, family and friends testified extensively that the Applicants were good parents and provided more than adequate care to
Domenic. Family members who gave oral testimony in favour of the Applicants, included:
Rune Johansson, Domenic’s paternal grandfather; Mikael Johansson, Domenic’s uncle;
Therése Johansson, Domenic’s aunt, Bertil Johansson, Domenic’s great uncle and Inger
7 Johansson, Domenic’s great aunt. All of the family members insisted that the Applicants’ family life was completely normal and that Domenic was a well cared for and happy child.
The District Court found the oral testimonies to be credible and placed special weight on them.
Expert testimony included Professor Trevor Archer, Professor in Psychology at the
University of Gothenburg, who had examined Annie and Christer Johansson in August 2010 and again in the spring of 2011. Professor Archer testified that the parents were normal and had the skills and temperament to provide Domenic with adequate care and nurturing. During testimony he also opined that keeping Domenic from his parents was harmful to him and to them. Professor Archer told the Court that he was surprised that Annie Johansson was still alive because she was so traumatized when he examined her in August and even more so when he examined her in the Spring of 2011.
(iv) Decision of Gotland District Court
The legal disposition of the case was governed by Chapter 6, Section 7 of the
Swedish Parents and Guardianship Code, which read as follows:
If, when exercising custody of a child, a parent is guilty of abuse or neglect or is otherwise wanting in his or her care of the child in a manner which entails an enduring risk to the child’s health or development, the court shall make a decision changing the custody.
If both parents have custody of the child and what is said in the first paragraph applies to one of them, the court shall entrust custody to the other parent alone. If that parent is also wanting in his or her care of the child in the manner referred to in the first paragraph, the court shall transfer custody to one or two specially appointed custodians.
Moreover, in accordance with Chapter 6, section 2a, the best interests of the child shall be the primary consideration in the determination.
8 The District Court emphasized that compulsory care should only continue for so long as is absolutely necessary and it should cease thereafter. There is also an obligation for the
Social Council to work to enable the child to be reunited with its parents.
Based on the settled jurisprudence of the Swedish courts and an accepted doctrine cited by the Gotland District Court, the level of risk for the purpose of transferring custody should be higher than the one required for a child to be taken into compulsory care.
The reasoning behind this doctrine is inescapable – the “mere” taking into care does not mean that custody of the natural parents ceases, it only constitutes a temporary measure, whereas the aim of the cited provision on transfer of custody results in a more permanent separation of the child from the parents.
The statistics cited by the Gotland District Court reveal that the more permanent transfer of custody under Chapter 6 is very rare. The court noted that there are only ten cases or so per year in which transfer of custody is granted by the Swedish courts in all of Sweden.
Such a massive intrusion into the family life has to be offset by extraordinary circumstances in the family that cause very serious health concerns or an imminent danger to the child’s life.
But in this case there were no such concerns. Thus, based on the presented evidence and applying the domestic case-law, the Gotland District Court dismissed the Social Council’s bid for transfer of custody.
The District Court, as the fact-finding court, found that it “cannot, for its part, find that the investigation of the case provides unambiguous support for the conclusion that reuniting Dominic and his parents should be completely ruled out. On this point, the District
Court attaches crucial importance to what emerged in the questioning of Domenic’s paternal grandfather, paternal uncle, paternal aunt and other relatives as well as other friends of the family, who all stated that they have not seen any shortcomings in the way the parents cared for Domenic and that he should be reunited with his parents.”
9 According to the District Court “[t]he parents have expressed a great deal of anger and frustration over the fact that Domenic was separated from them. In the District Court’s view, there is every reason to assume that a final separation of Domenic from his parents, which a transfer of custody would entail, would further accentuate those feelings of frustration, desperation and sheer powerlessness.”
Based on these premises, on 13 June 2012 the District Court held that it “cannot find that it is now necessarily in Domenic's best interests for custody of him to be transferred from the parents.”
(v) Svea Court of Appeal Decision
Following the dismissal of the case by the District Court the Social Council appealed and the Svea Court of Appeal reversed the decision, even over a dissenting opinion of the presiding judge (10 December 2012, Case no. 6534/12). The Court transferred custody of
Domenic to the proposed guardian – lawyer Margaretha Dufvenmark.
The only new evidence allowed at the appellate level was an opinion of a child psychiatrist, Henrik Pelling, and a child psychologist, Anneli Sandqvist Wiklund6, dated 9
August 2012, who stated that children have the right to “change parents”.7 It is important to note that this child psychiatrist, Henrik Pelling, had previously been removed from his position as head of the Child Psychiatric department at Uppsala Hospital in June 2006.8 He
6 Anneli Sandqvist Wiklund is the wife of the psychiatrist Gunnar Wiklund, who performed psychiatric examinations on Christer Johansson during his incarceration in November 2010 - January 2011. 7 Fallet Dominic uppe i hovrätten Överläkare: Det går att byta föräldrar (The case of Dominic up in the Court of Appeal, chief doctor: You can replace the parents) http://www.varldenidag.se/nyhet/2012/11/26/Fallet-Dominic-uppe-i-hovratten/ 8 Uppskattad psykiatrichef avsätts (Popular head of psychiatry removed) Alexander Gagliano, Sveriges Radio, sverigesradio.se - 29 juni 2006 http://sverigesradio.se/sida/artikel.aspx?programid=114&artikel=888860.
10 has also been heavily criticized in newspapers9 on the island of Gotland where he was subsequently employed. An Internet search also reveals severe criticism of his views.10
For their part, the Applicants were not allowed to introduce any new evidence nor were they allowed the right to review documents in the possession of the social council.11
Although paying lip-service to Article 8 of the European Convention of Human
Rights, which grants – according to the Court of Appeal – “a parent both legal and actual family affinity with his/her biological children, and protection against the intervention of an authority that lacks acceptable grounds”, the appellate court totally reversed the conclusions reached by the fact-finding court of first instance.
This is all the more striking because the only new piece of evidence introduced at the appellate stage was inconclusive as far as the total termination of parental rights (permanent transfer of custody) was concerned. Besides, although the opinion of the child psychiatrist dated 9 August 2012 was the “new evidence” on which the appeal relied, the Court held that it was the report of 2 October 200912 that was “particularly important”.
The court noted that, “The shortcomings in psychological care as described in the psychiatric opinion of 2 October 2009 are particularly important, and resulted in Domenic being refused the opportunity of going to school and thereby being socially isolated from other children the same age.” However the court failed to explain how a three year old report could possibly be relevant to the current question of whether or not the parental rights of the
Applicants should be effectively terminated. Also, the reference to support the complete termination of parental rights when the Applicants had agreed to send the child to school is
9 Snart har var tionde pojke ADHD (Soon every tenth boy will have ADHD), Gotlands Tidningar Lars Lundström. Publicerad 2012-09-17 http://helagotland.se/ledare/artikel.aspx?articleid=7943342. 10 OPIUM ÅT FOLKET – läkemedelsindustrin exploaterar samhällskrisens effekter på individen, http://www.rodarummet.org/web/2012/04/05/opium-at-folket-%E2%80%93lakemedelsindustrin-exploaterar- samhallskrisens-effekter-pa-individen/. 11 Svea hovrätt, Protokoll, Mål nr T 6534-12, 2012-11-02. 12 The report of October 2, 2009 was produced by Chief psychiatrist Joakim Kramer and psychologist Anneli Sandqvist Wiklund
11 completely without bearing. In addition, the items that this report dealt with were allegations of neglect (vaccinations, cavities and homeschooling) and all of these issues had been rectified at the time of the Svea Court of Appeal hearing.
In its short and remarkably unsubstantiated decision, particularly given the serious nature of the issue it was deciding, the Court of Appeal stated that the Applicants “deny any shortcomings whatsoever regarding their care of Domenic” and that “[d]uring the hearing at the Court of Appeal, it has become apparent that Domenic’s parents put their own interests and rights before those of their son.” (Emphasis added).
The appellate court wholly failed to specify how it was apparent that the Applicants had prioritized their interests over the interests of their only child. Nor did the court explain how it came to the opposite conclusion in the face of the overwhelming testimony that the
Applicants were good parents and provided more than adequate care for Domenic, evidence that the District Court found to be of “crucial importance” (cited above).
In a dissenting opinion, the presiding judge Lars Borg clearly explained what the decision of the majority means: “Under the solution proposed, the parents will not have the right to influence decisions that affect Domenic. Nor will they have the right to any insight in
Domenic’s life, other than to the extent allowed by his guardian. Since the specially appointed guardian would probably not have the same responsibility as the Social Council in promoting visitation, there is a risk that the prospects of achieving visitation between Domenic and his parents will decrease … I do not believe that it is in Domenic’s best interest to transfer custody from his parents to a specially appointed guardian, whose role will only be that of a legal guardian.”
The verdict of the Court of Appeals was appealed to the Supreme Court. Alongside the appeal, one of the judges, the ad hoc judge, in the Court of Appeal, Richard Ljungqvist, was
12 recused13. The Court of Appeal presented him as "former Appellate judge Richard Ljungqvist, but information gathered from the Judges Committee14 and the Administrative Court in
Stockholm on February 22, 2013, stated that starting in February 2006, he was the chief judge of the General Division of the County Administrative Court in Stockholm, now the
Administrative Court in Stockholm, which was the court to which the Applicants appealed the
Gotland Social Council's decision on their application for the termination of the compulsary care of their son, Domenic Johansson, and his reunification with them in their home, case nr
27370-10, and the cases surrounding the said case, were decided on from March 30, 2010, to
September 21, 2010, when the verdict was finally delivered. The Supreme Court did not make a decision on the recusation. The Supreme Court even set aside the 26-page Amicus
Brief that the HSLDA had sent to the court on March 7, 2013, without communicating it ex officio to the Applicants' lawyer, who didn't receive the document until April 16, 2013,15 after inquiring after it. A close examination of the title page of the Amicus Brief shows that it had been stamped, and that the stamp had been deleted. The Supreme Court also disregarded – and withheld information about and claimed that they had no knowledge of – more than 3000 e-mails that concerned people from all over the world had sent to their office in support of the
Johansson family. We find that these actions of the Svea Court of Appeals and the Supreme
Court have violated the Applicants' rights to a fair trial before an impartial tribunal, which are protected under Article 6 of the Convention. On 24 April 2013, the Swedish Supreme Court decided not to grant leave to appeal the judgment of the Svea Court of Appeal, thus exhausting domestic remedies for the Applicants.
13 Domarjäv - Johansson 14 The Judges Committee, Domarnämnden, Ljungqvist, Richard 15 Amicus Brief inkommet fr HD and Dagboksblad - HD
13 III. STATEMENT OF ALLEGED VIOLATIONS OF THE CONVENTION AND PROTOCOLS AND OF RELEVANT ARGUMENTS
Introduction
Article 8 of the European Convention on Human Rights reads as follows:
Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The Swedish courts have extinguished the Applicants’ custody over their only child.
It is submitted that the decision of the Swedish courts does not come close to the necessary threshold required to make such a decision, and is therefore in gross violation of the
Applicants’ rights guaranteed by Article 8 of the Convention.
Interference
This Court has stated on numerous occasions that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life.16 Thus, any domestic measures that hinder the parent and child from each other’s company constitute an interference with the right protected by Article 8 of the Convention.17
In the present case, the Applicants have not merely been hindered from seeing their child; they have been completely cut off from their only son. The Applicants have been physically separated from their child for four years and four months. They have not had any contact at all with their only son for two years and eleven months. Their parental rights have
16 See Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, p. 29, § 59; Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156, p. 24, § 58; Margareta and Roger Andersson v. Sweden, judgment of 25 February 1992, Series A no. 226-A, p. 25, § 72 17 See K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001 VII) and Johansen v. Norway, judgment of 7 August 1996, Reports 1996-III, pp. 1001-02, § 52.
14 been entirely extinguished. This constitutes a prima facie interference with Article 8 of the
Convention.
Justification
An interference will result in a violation of Article 8 unless it is justified under the
Court’s well-established three part test: the interference must be “in accordance with the law”, in pursuit of a legitimate aim and “necessary in a democratic society”. The three conditions must be met concurrently for the interference to be justified.
With regard to Article 8, the Court has held that, “The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake.”18 In the present case the issues at stake could not be more serious. The Applicants have been denied all contact to their only child, and it was explained in the Gotland District Court hearing that a transfer of custody runs the risk that “the prospects of achieving visitation between Domenic and his parents will decrease.” As this Court has correctly noted, “It is in a child’s interest for its family ties to be maintained, as severing such ties means cutting a child off from its roots.”19 Thus, any State action that leads to a reduction in the currently suspended rights of access requires the strictest of scrutiny under Article 8.20
(i) In Accordance with the Law
While the Swedish authorities followed their national law, the test “in accordance with the law” within the meaning of Article 8 requires more than the mere presence of a statutory provision. This Court is also concerned with the “quality” of any given law. Thus, if the law in question does not fulfill the “quality” requirements laid down by the Court, there will be a
18 Görgülü v. Germany, App No. 74969/01, 26 February 2004, § 42. 19 Gnahoré v. France, App No. 40031/98, ECHR 2000‑IX, § 59. 20 Vojnity v. Hungary, App No. 29617/07, 12 February 2013 § 40.
15 violation of Article 8. In the seminal case of Sunday Times v. The United Kingdom, the Court held:
First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.21
The Court is also concerned with arbitrariness. Thus, even if a restriction has a basis in the domestic law of the country, if the application of that law is done in an arbitrary way, the Court will still find a violation of Article 8. In Olsson v. Sweden (no. 1) the Court stated:
“The phrase “in accordance with the law” does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law; it thus implies that there must be a measure of protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by [the Convention]”.22
Similarly, in Hasan & Chaush v. Bulgaria the Court held that the interference in question was not prescribed by law because “it was arbitrary and was based on legal provisions which allowed an unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability.”23 Thus, it is only when the law is of a sufficient “quality” and applied in a non-arbitrary way that the restriction, rooted in the domestic law of the Member
State, will be deemed to be “in accordance with the law”.
In the instant matter, the Swedish authorities’ basis for removing parental authority from the Applicants (Chapter 6, Section 7 of the Swedish Parents and Guardianship Code) confers far too much discretion on the part of the authorities and therefore fails to pass the
21 Sunday Times v. The United Kingdom (1979-80) 2 E.H.R.R. 245 § 49. 22 Olsson v. Sweden (No. 1), App No. 10465/83, judgment of 24 March 1988, § 61; Hentrich v. France, App No. 13616/88, judgment of 22 September 1994, § 42. 23 Hasan & Chaush v. Bulgaria, application no. 30985/96, judgment of 26 October 2000, § 86. See also, Herozegfalvy v. Austria (1992) 15 E.H.R.R. 437 §§ 91, 94.
16 first stage of the Article 8 test. Given the extremely rare usage of the statutory provision – invoked approximately ten times per year in the entire country – the State authorities’ insistence that it be applied in the instant case is remarkable. The authorities’ extraordinary flexibility in deciding under which circumstances the law should be invoked must therefore be seen as arbitrary and in violation of the Convention.
(ii) Legitimate aim
The legitimate aim or aims to which the High Contracting Party can point are limited.
Restrictions on rights guaranteed by the Convention must be narrowly tailored and the interference must pursue one or more of the legitimate aims listed in Article 8 § 2, namely: national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.
In this particular case the authority’s intervention into the family has not protected the health of Domenic Johansson and his rights but have severely harmed both his health and his rights under the Convention. Prior to the State intervention Domenic lived with his two loving parents and was being cared for by them. All of the eye-witnesses who testified before the
Gotland District Court agreed that Domenic Johansson lived in a perfectly normal, stable and happy family environment.
However, since police officers removed Domenic from his parents on 25 June 2009 and the social council has kept him in State foster care ever since, his family has been torn apart: the First Applicant has been imprisoned; the Second Applicant has been admitted to hospital over 30 times, suffering a cardiac arrest, depression and overwhelming anxiety; the
Applicants have been deprived of any contact with their only child for almost three years; extended family members have been deprived of any contact with Domenic since June 25
2009 – his paternal grandmother died during this period and he was not allowed to attend her
17 funeral – and Domenic himself remains unsettled to this day. Under such circumstances it cannot be accepted that the State pursued a legitimate aim in this case.
(iii) Necessary in a democratic society
Lastly, the interference in question must be “necessary in a democratic society”. The word “necessary” does not have the flexibility of such expressions as “useful” or
“desirable”.24 Instead, for an interference to be necessary it must meet a “pressing social need” while at the same time remaining proportionate to the legitimate aim pursued.25
Moreover, the reasons adduced to justify the interferences at issue must be both “relevant and sufficient.” In this case, the High Contracting Party fails on both grounds: its response was and is not proportionate to the aim it sought to achieve and the reasons given to justify its actions are neither relevant nor sufficient.
In the present case it is uncontested that the best interest of the child is of crucial importance.26 Principle 2 of the Declaration on the Rights of the Child 1959, states: “The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.” Article 3 § 1 of the Convention on the Rights of the Child 1989 states: “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.”
While it is clear that the primary concern for this Court, the High Contracting Party and the Applicants is the best interest of the child, it is equally clear that it is in the best
24 Case of Svyato-Mykhaylivska Parafiya v. Ukraine, App No. 77703/01, judgment of 14 June 2007, § 116. 25 Sunday Times v. the United Kingdom, op. cit., § 63 et seq. 26 Sommerfeld v. Germany, App No. 31871/96, judgment of 8 July 2003, § 62.
18 interest of the child to be free to enjoy the love, support and nurturing of his natural parents.
As this Court has stated: “There is no doubt that it is in the “best interest” of every child to grow up in an environment that allows him or her to maintain regular contact with both parents (see, in particular, the first paragraphs of Articles 7, 9 and 18 of the Convention on the Rights of the Child”. 27
Similarly, Article 24 § 3 of the European Union Charter of Fundamental Rights states:
“Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”
The assumption in both this Court’s case law and international law is that a child should grow up in an environment where his family ties are maintained. The State therefore has an extraordinarily heavy burden upon it to overturn this basic assumption. The more drastic the State measures, the more this burden increases. In the present case the State authorities have introduced more and more drastic measures on the Johansson family over a period of four years and have failed to provide even remotely sufficient evidence to justify its interference with this most basic right of a child to be with his parents.
The Swedish authorities first removed Domenic from his parents over the issue of homeschooling,28 a legal form of education in Sweden. According to the Swedish School Act
(at the material time Chapter 10, paragraph 4), a child is allowed to fulfil his compulsory school attendance by means other than those stated in the Act and home education is one of the acceptable means of alternative education. However, the Swedish authorities have maintained throughout Domenic Johansson’s case that homeschooling amounted to a lack of psychological care from the Applicants, without any evidence supporting this contention. The
Court of Appeal held that: “The shortcomings in psychological care as described in the psychiatric opinion of 2 October 2009 are particularly important, and resulted in Domenic
27 Neulinger and Shuruk v. Switzerland, App No. 41614/07, judgment of 6 July 2010, § 91. 28 Kompletterande inlaga, pages 7 - 10
19 being refused the opportunity of going to school and thereby being socially isolated from other children the same age.”
To reverse the District Court’s ruling and order the complete and total severing of parental rights because of alleged psychological deficiencies resulting from one year of homeschooling is not merely a disproportionate response, it is utterly irrational. Both psychiatric reports introduced as evidence and conducted on Domenic were made after he was forcibly removed from his family, which makes it impossible to determine whether or not his psychological wellbeing was affected by homeschooling. Indeed, it is far more likely that his psychological wellbeing was affected by the removal and forced separation from his loving parents.
Only after Domenic was removed from his parents did the State then point to minor medical concerns that they alleged amounted to “physical shortcomings”: dental cavities and a lack of some non-required vaccinations. As the Applicants have explained repeatedly, they intended Domenic to receive dental care in India, where they were travelling, and it was not necessary to vaccinate him before departure, and furthermore such vaccinations are not even compulsory in Sweden.
Moreover, even if the Applicants’ repeated and clear explanation was considered insufficient, both issues were “corrected” within weeks of the State taking Domenic into custody. The Applicants had also agreed to follow the social authority’s recommendations for
Domenic’s care but the authorities refused to return the child.
It is noteworthy that there has never been any allegation of physical abuse and
Domenic’s medical records show that he was an exceptionally healthy and well taken care of young child. The drastic measures taken by the State are wholly disproportionate to any physical concerns they may have had over four years ago in June 2009.
20 In this case, the State authorities have utterly failed in their obligation under both domestic law and under Article 8 of the Convention to “take measures to rehabilitate the child and parent”.29 In the period between the initial separation in June 2009 and the present day, the State authorities have consistently sought to reduce access and reduce and finally terminate the parental responsibility of the Applicants. As a result, with each passing month that goes by Domenic Johansson becomes further removed from his natural parents and further cut off from his roots. The High Contracting Party has an obligation to seek the opposite outcome.30
After the initial allegations regarding dental care, vaccinations and home education, the Swedish authorities have introduced increasingly remote justifications for their actions.
The State has pointed to the Applicants’ refusal to accept, or perversely, to support the separation of the family. The High Contracting Party takes the view that because they have decided to take the child from his parents, the parents should accept and even support the action as evidence of compliance that somehow demonstrates that they are suitable parents.31
The State also points to the Applicants’ desire to make others aware of their plight via the internet as evidence that they are not worthy parents. Not only is such an argument hardly persuasive, the reverse is more likely true. Any parent faced with such oppressive measures taken by the High Contracting Party should be expected to do whatever is in their power to reunite their family.32 To expect natural parents, who have had custody taken away
29 T.P. and K.M. v. the United Kingdom, App No. 28945/95, judgment of 10 May 2001, § 78. 30 In finding a violation of the Convention in T.P. and K.M. v. the United Kingdom, op. cit., the Court stated: “The Court reiterates that the seriousness of measures which separate parent and child requires that they should not last any longer than necessary for the pursuit of the child’s rights and that the State should take measures to rehabilitate the child and parent, where possible. During the separation, access between the applicants was severely restricted and there was no contact with the second applicant’s wider family. Her grandmother died during this period. Notwithstanding therefore that the initial measure was justified, the Court has examined whether the procedures which followed were compatible with the requirements of Article 8 in ensuring that they protected the interests of the first applicant and second applicant in this respect.” 31 Cf Antero Rieme v, Sweden, 16 EHRR 155 32 Olsson v. Sweden (No. 2), 17 EHRR 134, at 181 f. "(...) children should, in principle, be reunited with their natural parents. In cases like the present, Article 8 includes a right for the natural parents to have measures taken with a view to their being reunited with their children... and an obligation for the national authorities to take such measures."
21 under very traumatic circumstances and against their will, to encourage their child to feel comfortable in a foster home, is on the brink of absurdity.
Considering the effect that the State authorities’ decisions are having on the Johansson family – severing the family ties between the parents and their only child and cutting
Domenic from his roots – the reasons put forward by the State fall woefully short of anything approaching a proportionate response. On the contrary, the facts demonstrate that Swedish authorities acted on a subjective basis that Domenic would be better off “in care” than with his parents. This basis has been explicitly rejected by the court in Olsson v. Sweden (No. 1), where the Court held that, “It is an interference of a very serious order to split up a family.
Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child ... it is not enough that the child would be better off if placed in care.”33
Yet that is precisely what has happened here.
The effect of the Swedish authorities’ actions is to extinguish all rights and responsibilities of the natural parents in respect of their only child. A measure this radical can only be justified in exceptional circumstances and the High Contracting Party has failed to demonstrate such circumstances currently exist or have ever existed.34
The final decision of the Svea Court of Appeals to remove parental rights from the
Applicants rested mainly on: (1) the Applicants’ “lack of insight into their own shortcomings” and (2) the psychological opinion stating that Domenic is developing positively in his surrogate family. If the totality of parental rights would depend solely on the parents’ ability in self-criticism and on the possibility of finding a potentially better family than the natural one, the respect for family life enshrined in the Convention would become a dead letter. Article 8 of the Convention demands more.
The Applicants also list the following violation of their Human Rights:
33 Olsson v. Sweden (No. 1) App No. 10465/83, 24 March 1988, § 72. 34 C.f. Vojnity v. Hungary, App No. 29617/07, 12 February 2013, §§ 41-43.
22 Article 6 violation: As detailed above, the Applicants did not get a fair trial in the Svea Court of Appeal. The municipality could introduce new evidence, but they were not allowed to call new witnesses or gain access to vital documentation in the possession of the social council.
STATEMENT RELATIVE TO ARTICLE 35 § 1 OF THE CONVENTION
16. Final decision (date, court or authority and nature of decision)
25 April 2013 – Högsta Domstolen (Supreme Court), Case no. T 298/13; decision not to grant leave to appeal.
17. Other decisions (listed in chronological order)
13 June 2012 – Gotland District Court, Case no. T 1058-11 – judgment to dismiss the request of the Social Council.
10 December 2012 – Svea Court of Appeal, Case no. T 6534-12 – judgment reversing the District Court’s judgment, transferring custody and appointing a guardian.
18. Is there or was there any other appeal or other remedy available to you which you have not used?
All domestic remedies have been exhausted. No other remedy or possibility of appeal is available to the Applicants.
IV. STATEMENT OF THE OBJECT OF THE APPLICATION
19. Applicants seek just satisfaction, the return of their son, pecuniary and non-pecuniary damages, and full compensation for the costs as relates to the transfer of custody over their son Domenic and the destruction of their family. The Applicants request the right to complete this Application with regards to their claims for pecuniary damages and the costs incurred.
It is submitted that by transferring custody over their son to an appointed guardian – and thus permanently terminating their parental rights without adequate cause – the High Contracting party has violated their right to respect for family life under Article 8 of the Convention.
V. STATEMENT CONCERNING OTHER INTERNATIONAL PROCEEDINGS
20. No other submissions have been made to any other international tribunal or procedure.
23 VI. LIST OF DOCUMENTS
21. (a) Gotland District Court, judgment of 13 June 2012, Case no. T 1058-11 – judgment to dismiss the request of the Social Council [English];
(b) Svea Court of Appeal, judgment of 10 December 2012, Case no. T 6534-12 – judgment reversing the District Court’s judgment, transferring custody and appointing a guardian [English];
(c) Högsta Domstolen (Supreme Court), judgment of 25 April 2013, Case no. T 298/13; decision not to grant leave to appeal [Swedish];
(d) Svea hovrätt, Protokoll, Mål nr T 6534-12, 2012-11-02
(e) Child psych evaluation - 2009-10-02
(f) Child psych evaluation - 2012-08-09
(g) Gotland Social Council. Decision forbidding visiting rights (Beslut om Umgängesförbud), November 2010 (To come later)
(h) District Attorney of Gotland, Prosecutor's decision forbidding contact (Beslut om kontaktförbud), Kontaktförbud 2011-03-08
(i) Gotland Social Council. Decision for transfer of guardianship (Soc beslut om v- överflyttn. Helen Ahlsten.) Initially, the choice of guardian fell on the lawyer, Helen Ahlsten, who accepted the appointment, then declined.
(j) Recusation of the ad hoc appellate judge Richard Ljungqvist, 2013-03-04, (Domarjäv - Johansson)
(k) The Judges Committee, Domarnämnden, Ljungqvist, Richard
(l) HSLDA Amicus Brief (Amicus Brief inkommet fr HD); Dagboksblad - HD
(m) Fallet Dominic uppe i hovrätten Överläkare: Det går att byta föräldrar (The case of Dominic up in the Court of Appeal, chief doctor: You can replace the parents) http://www.varldenidag.se/nyhet/2012/11/26/Fallet-Dominic-uppe-i-hovratten
(n) - Uppskattad psykiatrichef avsätts (Popular head of psychiatry removed) Alexander Gagliano, Sveriges Radio, sverigesradio.se - 29 June 2006 http://sverigesradio.se/sida/artikel.aspx?programid=114&artikel=888860
(o) Snart har var tionde pojke ADHD (Soon every tenth boy will have ADHD), Gotlands Tidningar Lars Lundström. Publicerad 2012-09-17 http://helagotland.se/ledare/artikel.aspx?articleid=7943342
(p) OPIUM ÅT FOLKET – läkemedelsindustrin exploaterar samhällskrisens effekter på individen, http://www.rodarummet.org/web/2012/04/05/opium-at-folket- %E2%80%93lakemedelsindustrin-exploaterar-samhallskrisens-effekter-pa-individen/
24 VII. DECLARATION AND SIGNATURE
We hereby declare that to the best of our knowledge and belief, the information we have given in the present application form is correct.
Place: Olofstorp, Sweden Date: October 22, 2013
Ruby Harrold-Claesson Lawyer
Attachments: Power of Attorney for Annie Johansson and Christer Johansson, dated August 15, 2013
Place: Vienna, Austria Date: October 22, 2013
Dr. Roger Kiska Attorney at Law
Attachment: Authority
25