Page 17 of 30 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." This allegation was contested by the Government, but accepted by a majority of the Commission. 59. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life; furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care (see the W v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27, § 59). It follows - and this was not contested by the Government - that the measures at issue amounted to interferences with the applicants’ right to respect for their family life. Such an interference entails a violation of Article 8 (art. 8) unless it was "in accordance with the law", had an aim or aims that is or are legitimate under Article 8 § 2 (art. 8-2) and was "necessary in a democratic society" for the aforesaid aim or aims (ibid., p. 27, § 60 (a)). B. "In accordance with the law" 60. The applicants did not deny that the authorities had acted in accordance with Swedish law. However, they alleged that the measures taken were not "in accordance with the law" within the meaning of Article 8 (art. 8), notably because the relevant legislation set no limits on the discretion which it conferred and was drafted in terms so vague that its results were unforeseeable. The Government contested this claim, which was not accepted by the Commission. 61. Requirements which the Court has identified as flowing from the phrase "in accordance with the law" include the following. (a) A norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen - 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; however, experience shows that absolute precision is unattainable and the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (see, for example, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 31, § 49). (b) 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, inter alia, paragraph 1 of Article 8 (art. 8-1) (see the Malone judgment of 2 August 1984, Series A no. 82, p. 32, § 67). (c) A law which confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see the Gillow judgment of 24 November 1986, Series A no. 109, p. 21, § 51). 62. The Swedish legislation applied in the present case is admittedly rather general in terms and confers a wide measure of discretion, especially as regards the implementation of care decisions. In particular, it provides for intervention by the authorities where a child’s health or development is jeopardised or in danger, without requiring proof of actual harm to him (see paragraphs 35 and 37 above). On the other hand, the circumstances in which it may be necessary to take a child into public care and in which a care decision may fall to be implemented are so variable that it would scarcely be possible to formulate a law to cover every eventuality. To confine the authorities’ entitlement to act to cases where actual harm to the child has already occurred might well unduly reduce the effectiveness of the protection which he requires. Moreover, in interpreting and applying the legislation, the relevant preparatory work (see paragraphs 36 and 38 above) provides guidance as to the exercise of the discretion it confers. Again, safeguards against arbitrary interference are provided by the fact that the exercise of http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=60525252&skin=hudoc-en&a... 10/13/2010