| Applicant name | X. |
| Applicant type | Natural Person |
| Country | Sweden |
| Decision no. | 911/60 |
| Date | 10/04/1961 |
| Judges |
– |
| Institution | Commission (Plenary) |
| Type | Decision |
| Outcome Art. 8 | Inadmissible |
| Reason | Manifestly ill-founded |
| Type of privacy | Family Privacy |
| Keywords | Custody; right to access; health and morals |
| Facts of the case | See case no. Decision 172/56 and Decision 434/58. |
| Analysis | This case follows up on the case of 172/56 and 434/58, which was declared inadmissible, in part because the domestic remedies had not been exhausted. The Commission goes on to discuss the question of whether the interference into the right to private and family life is legitimate. Interestingly, whereas the Commission and the Court in later times primarily refers to the ‘rights and freedoms of others’ as a ground for legitimizing a limitation of the right to privacy, it now discusses the notion of ‘health and morals’ and makes clear that ‘term “the protection of health or morals” in this paragraph covers not only the protection of the general health or morals of the community as a whole but also the protection of the health or morals of individual members of the community; whereas, furthermore, it appears to the Commission that the term “health or morals” necessarily includes the psychological as well as physical well-being of individuals and, in the present case, a child’s mental stability and freedom from serious psychic disturbance’. The Commission makes clear that there is a ‘considerable measure of discretion to the domestic courts in taking into account factors in the case which may appear to them to be critical for the protection of the health and morals of a child ; whereas, however, in every case where a domestic court has refused to a parent a right of access to his or her child, it is ultimately for the Commission to judge whether such refusal is justifiable under the provisions of paragraph’. The Commission finds that the authorities make a right and just decision in this case and that there was consequently no violation of Article 8 ECHR, the case being declared inadmissible on this point. Inter alia, the Commission refers to the fact: – that the Swedish Courts took into account a considerable volume of evidence as to the personalities of the two parents; – that the Swedish Courts the nature of the relations between them and the possible impact on the child of granting the applicant a right of access; – it was clear that the applicant’s attitude to Sweden, his ex-wife and her family and to the national and religious milieu in which the child lives would create “heavy and serious mental conflicts”; – it could be reasonably expected that a right of access would be detrimental to the child; – that the guardian of the child and a doctor who had examined it both stressed the boy’s difficult age of puberty and his state of psychic tension. |
| Documents | Decision |