FOURTH SECTION
Application no. 59435/10
A.E.L. against Finland
lodged on 6 October 2010
STATEMENT OF FACTS
The applicant, Ms A.E.L., is a Finnish national who was born in 1982. She is represented before the Court by Ms Leeni Ikonen, a lawyer practising in Kerava.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s son was born on 10 December 2006. The applicant lived in a family support home before her son was born but moved into her own flat in March 2007 with her son. She has had mental problems and twice spent about a month in a mental hospital in 2000 and 2005. Thereafter, she successfully completed her studies and has been working, inter alia, in an old people’s home. She has been on medication since 2000 and in regular contact with the mental health services since 2007.
When the applicant and her son moved into their own flat, a child welfare officer started to visit them twice a week. In spring 2007 the child welfare officer became worried about the lack of interaction between the applicant and her son, and in summer 2007 they were examined in hospital. As a result, the applicant was advised to move back to the family support home with the child but she did not want to leave her flat.
1. First emergency care order
On 2 July 2007 the leading social worker decided to take the applicant’s son into emergency care. In this decision it was mentioned that the applicant suffered from paranoid schizophrenia and that she had been irritable, absent-minded and difficult to approach. She had stopped her regular visits to the mental health services in May 2007. The hospital examination had shown that the son had no strong bond with his mother and that even the family support home was not a sufficient measure to develop the mother-child relationship. The applicant had announced that she would not receive the child welfare officer at her home for at least five weeks. It was not safe to leave a 6-month old baby in a mentally ill mother’s care for more than a month as there was no guarantee of the baby’s safety. The care decision was to apply until 15 July 2007.
On the same day, 2 July 2007, the social workers came with the police to the applicant’s flat and took her son to the family support home. The applicant was taken to a doctor who found that she was calm and not psychotic or suicidal.
On 5 July 2007 the child welfare authorities and the applicant had a meeting. It was agreed to terminate the emergency care on the next day as the applicant was able to discuss the matter properly and to take care of things, and she showed no sign of mental instability. The applicant was ready to work with the social workers and to commit herself to the aid offered to her. She agreed to move with her son to the family support home as soon as there was a place available, to continue her visits to the mental health officer and to meet the child welfare officer on a regular basis.
On 23 July 2007 the applicant and her son moved to the family support home. It was decided that this measure would apply for at least two months until 23 September 2007.
The applicant did not appeal against any of these decisions.
2. Second emergency care order
On 7 September 2007 the applicant’s son was again taken into emergency public care. The decision stated that the purpose of the stay in the family support home had been to assess whether there was sufficient development in the interaction between the mother and the child. No such positive development was apparent. The applicant could not secure her son’s development due to her illness which prevented her from seeing her own shortcomings as a parent. The child’s situation had become worse as the applicant had become even more absent-minded and increasingly withdrawn from her child. The emergency care order was to last until 6 October 2007. The applicant’s son was temporarily placed in a family support home.
It is not known whether the applicant appealed against this decision.
3. Proceedings concerning the care order and the first decisions on visiting rights
On 2 October 2007 the municipal social welfare board decided to take the applicant’s son into public care. It found that the applicant was not able to take care of her son and that their interaction was lacking. Even though their interaction was considered mechanical and insufficient, the applicant herself had not been worried about the situation at all or understood the worries expressed by the social workers. She had no strong social network except her own mother who had not understood either the worries expressed by the social workers. It was in the best interest of the child to be taken into public care and placed outside the home. His development might already have been endangered for which reason it was necessary to secure his normal development in the future. This decision was to be confirmed by the Administrative Court (hallinto-oikeus, förvaltnings-domstolen).
The applicant appealed against this decision to the Hämeenlinna Administrative Court claiming, inter alia, that all the observations made about her were negative and one-sided.
On 1 December 2007 the applicant’s son was transferred to a foster home where he is currently living.
Apparently, the applicant could meet her son once a month for two and a half to three hours at a time in the foster family.
On 22 April 2008 the Hämeenlinna Administrative Court confirmed the decision by the social welfare board and rejected the applicant’s appeal without holding an oral hearing. It found that the applicant had tried her best to take care of her son and that there were no such deficiencies in securing his basic care which could not have been remedied by guidance from the social workers. The applicant had been motivated to receive guidance from the social workers. It had not been shown that the applicant had neglected her son’s basic physical needs or intentionally neglected any other needs either. According to the medical personnel, the son had developed within the normal boundaries. It had not been shown either that the applicant’s paranoid schizophrenia compromised her ability to take care of her child. The fact that she was working showed that, despite her illness, she had resources and the ability to manage her life. However, the court found that the major problem was the lack of positive interaction between the applicant and her son. There were thus grounds for the taking into public care and foster care was in the best interest of the child.
The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that an oral hearing be held.
On 3 December 2008 the child welfare authorities made the first appealable decision concerning the applicant’s visiting rights. The applicant could meet her son in the foster family for two and a half to three hours once a month. The contacts between the applicant and her son were restricted in order for the child to become attached to his foster family and to repair the damage he had already suffered. Another ground for restricting the visiting rights was the applicant’s passiveness during visits. This decision applied until 31 May 2009.
By letter dated 18 December 2008 the applicant appealed against the decision of 3 December 2008 to the Hämeenlinna Administrative Court, requesting visits every other weekend and during the holidays, and that the meetings take place at her home.
On 20 February 2009 the Supreme Administrative Court quashed the Administrative Court’s decision of 22 April 2008 and referred the matter back to it for a new examination due to lack of an oral hearing.
On 13 March 2009 it was again decided that the applicant could meet her son once a month for two and a half to three hours at a time in the foster home. This decision applied until 13 March 2010.
By letter dated 19 March 2009 the applicant appealed against the decision of 13 March 2009 to the Administrative Court, requesting increased visiting rights and meetings at her home.
On 15 September 2009, after having held an oral hearing on 24 March 2009, the Administrative Court confirmed the decision by the social welfare board to take the applicant’s son into public care and rejected the applicant’s appeal. It also rejected the appeals lodged by the applicant against the decisions to restrict her visiting rights. The court found, inter alia, that there had been significant problems in the interaction between the applicant and her son. Her care was of a routine and mechanical nature and lacked feeling, gestures and affection. Positive interaction was of the utmost importance for the healthy development of a small child. The lack of interaction had been of a type which had seriously endangered the applicant’s son’s health and development and less intrusive measures had proved to be insufficient. The situation had not changed since the decision to take the child into public care. As to the contact rights, the court found that it was not in the best interest of the child for the applicant to meet her son at her home. Otherwise the extent of the applicant’s visiting rights was sufficient as it was important that her son bond with his foster family without interference.
By letter dated 14 October 2009 the applicant appealed to the Supreme Administrative Court requesting, inter alia, that an oral hearing be held. She claimed, inter alia, that the proceedings had lasted too long.
On 21 May 2010 the Supreme Administrative Court upheld the Administrative Court’s decision of 15 September 2009 without holding an oral hearing. It found that holding an oral hearing was not necessary as it would not have brought anything new to the case file. As to the length of proceedings, the court found it irrelevant when assessing the material lawfulness of the decision subject to appeal.
4. Subsequent decision on visiting rights
On 24 July 2009 the applicant’s visiting rights were restricted in such a manner that she could meet her son once a month for two and a half to three hours at a time in a family support unit in the presence of a social worker. This restriction was to remain in force until 24 July 2010.
By letter dated 26 August 2009 the applicant appealed against the decision of 24 July 2009 to the Hämeenlinna Administrative Court requesting, inter alia, that the decision be quashed, meetings with her son be increased and that an oral hearing be held.
On 14 January 2010 the Hämeenlinna Administrative Court rejected the request for an oral hearing and rejected the appeal. It found that as in essence only the meeting place had changed, it was manifestly unnecessary to hold an oral hearing. As to the merits, there was a reason to change the meetings from the foster home to the family support unit as the foster family had experienced negative feelings between them and the applicant. As the interaction problems still persisted, it was not in the best interest of the child to have the meetings without any supervision, or at the applicant’s home. The family support unit was situated close to the foster home and it was known to the child as the meetings between him and his father took place there. It was not relevant that the applicant found it more difficult to meet her son at the family support unit than in the foster family. The foster family and the social workers had promised to help the applicant with the trips to the family support unit. As the appealed decision only concerned the change of the meeting place, the restrictions on visiting rights could not go beyond 13 March 2010. Therefore the decision was quashed as far as it concerned the period between 14 March and 24 July 2010.
It is not known whether the applicant has appealed against this decision.
During this period the applicant met her son at least five times under supervision. It was reported that in these meetings the applicant’s and her son’s interaction had improved, and that she was present and affectionate towards her son, who responded.
5. Administrative complaint
On 21 October 2009 the applicant complained to the National Supervisory Authority for Welfare and Health (Sosiaali- ja terveysalan lupa- ja valvontavirasto, Tillstånds- och tillsynsverket för social- och hälsovården) about the content of the medical information submitted to the Administrative Court. On 2 November 2009 her complaint was transferred to the competent Regional State Administrative Agency (aluehallintovirasto, regionförvaltningsverket).
On 23 March 2010 the Regional State Administrative Agency decided not to take any measures on the basis of the complaint. It found that the medical information collected by the medical personnel involved in the applicant’s case was in accordance with law and that it had been collected due to a request by the social services. It was for the Administrative Court to assess what emphasis it was to give to the medical statements submitted to it.
B. Relevant domestic law and practice
Section 47 of the Child Welfare Act (lastensuojelulaki, barnskyddslagen, Act no. 417/2007) stipulates, as regards the duration and termination of care, as follows:
“Taking into care is valid indefinitely. When the need for care and substitute care under section 40 no longer exists, the municipal officeholder determined under section 13(1) must make a decision on terminating the care when the social worker responsible for the child’s affairs has prepared the case. Care must not be terminated even if the conditions for taking a child into care no longer exist if termination is manifestly not in the interests of the child in the manner referred to in subsection 3.
The social worker responsible for the child’s affairs must assess the conditions for continuing care when the client plan is reviewed, when a child or custodian applies for termination of care or when it otherwise proves necessary.
When a child’s interests are being considered in a case concerning termination of care, in addition to what is said in section 4(2), the following must be taken into account: the duration of substitute care, the quality of the affection between the child and the party providing substitute care, interaction between the child and the parents and the child’s views.
Care is terminated when the child concerned reaches 18 years of age.”
COMPLAINTS
The applicant and her son complain under Article 8 of the Convention that their family life was violated by the unnecessary emergency taking into public care on 2 July 2007. Their family life was also violated by the emergency taking into public care on 7 September 2007 as at that moment they were living in the family support home and there was no imminent danger. Moreover, the authorities have heavily restricted the applicant’s visiting rights to her son and the visits have been supervised. These decisions were issued only after a considerable delay, the first being only on 3 December 2008. The authorities have not at any point considered reuniting the applicant and her son even though her situation has stabilised and she has been able to study and work.
The applicant complains under Article 6 of the Convention that she did not have a fair trial as the Supreme Administrative Court’s decision was not reasoned. Moreover, the Administrative Court and the Supreme Administrative Court did not hold an oral hearing and the proceedings lasted too long.
She complains under Article 13 of the Convention about the lack of an effective remedy.
Lastly, the applicant complains under Article 14 of the Convention that she has been discriminated against due to her health.
QUESTION AUX PARTIES
Has there been an interference with the applicant’s and her son’s right to respect for their family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2, in particular on account of the lawfulness of the various contact restrictions imposed on the applicant and her son, and the alleged failure to take effective measures with a view to reuniting the applicant with her son?
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