Information Note on the Court’s case-law No. 17
April 2000
K. and T. v. Finland - 25702/94
Judgment 27.4.2000 [Section IV]
Article 8
Article 8-1
Respect for family life
Taking of child into care and refusal to terminate care: violation
Restrictions on access to child in care: no violation
[This case was referred to the Grand Chamber on 4 October 2000]
(Extract from press release)
Facts: The case concerned an application brought by a mother and her cohabitant (the applicant father), Finnish nationals. The identity of the applicants is confidential.
The applicant mother has four children; an older daughter, son (M.), younger daughter and the youngest daughter (J.). The children were born in 1986, 1988, 1993 and 1995 respectively. The applicant father is the father of the two youngest ones, but not of the older ones. The older daughter has lived with her father since 1992.
The applicant mother has been hospitalised on several occasions, having been diagnosed as suffering from schizophrenia.
In May 1993 the applicant mother’s son was placed in a children’s home by the Social Welfare Board’s decision. This was to be regarded as a short-term support measure as the mother was not at that time able to care for him.
In June 1993 the applicant mother’s third child, a daughter, was born and immediately placed in provisional public care with reference to the mother’s unstable mental state and the family’s long-lasting difficulties. A few days later the applicant mother’s son was also placed in public care for the same reasons as his sister. The applicant mother’s access to her children was prohibited by the Social Welfare Board’s decision of the same day. The mother was hospitalised the following day for eight days on account of psychosis.
In July 1993 the applicant father moved out of the applicant mother’s home, allegedly having been told by the social welfare officials that he had to break off his relationship with the applicant mother if he wished to keep his daughter. He later moved back.
Both public care orders were referred by the Board to the County Administrative Court for confirmation. The Court confirmed the care orders, without holding an oral hearing. The Supreme Administrative Court later rejected the applicants’ appeal.
The access restriction was prolonged by the Social Welfare Board in September 1993 and the children were placed in a foster home in 1994. Social welfare officials allegedly told both the applicants and the foster parents that the children’s placement would last for years. The applicants proposed that the children’s public care be implemented in the home of relatives. The Social Welfare Board drew up a care plan concerning the implementation of the public care, allegedly ignoring the applicants’ alternative care plan. One month later the applicants requested that the Board should draw up a public care plan aiming at the reunification of the family. They also objected to the allegedly unlawful disclosure of a large number of documents of a confidential character.
In May 1994 both applicants’ access to the children was restricted to one monthly visit to the foster home, where access was to take place under supervision during three hours. The grounds for the public care were considered to still exist. In October 1994 the County Administrative Court upheld the access restriction after an oral hearing. The court dismissed the request for cost-free proceedings made by the applicants since the relevant legislation did not cover disputes concerning access restrictions.
In December 1994 the Social Director informed the applicants that there were no longer any grounds for the access restriction. Meetings between the applicants and the children were nevertheless only authorised for three hours once a month on premises chosen by the Board. The meetings would also be supervised. The Board confirmed the decision in January 1995. The applicants appealed.
In May 1994 the applicants had also requested that the care order be revoked. The request was rejected by the Board in March 1995. The applicants appealed, requesting to be granted cost-free proceedings and afforded free legal representation. They also requested an oral hearing. The County Administrative Court granted the applicants cost-free proceedings and appointed a representative. No hearing was held. The care plan was considered to have entailed an access restriction and the matter was referred back to the Board. In the light of the court’s decision the Acting Social Director formally restricted the applicants’ access to the children to one meeting a month. This decision was confirmed by the Board and the applicants appealed again.
A further child was born to the applicants in April 1995. She has not been taken into care.
The rest of the appeal pending before the County Administrative Court when part of the matter was referred back to the Board was rejected by the County Administrative Court in September 1995, without a hearing. In November 1995 the County Administrative Court rejected the applicants’ appeal against the access restriction confirmed in August 1995 (the matter which had been referred back to the Board).
In May 1996 social welfare officials revised the public care plan, proposing that the children meet the applicants once a month in the premises of a school at the children’s place of residence. The care plan was again revised in October. In June the Social Director continued both applicants’ access restriction. One of the foster parents was also ordered to be present at the time of the access, in addition to a person appointed by the Board. The decision was confirmed by the Board. The applicants appealed to the County Administrative Court, requesting an oral hearing. The applicants’ appeal was rejected by the County Administrative Court, which had obtained a statement from a child psychiatrist, in June 1997 without an oral hearing. The care plan was revised in April 1997 and December 1998 as before.
The applicants’ access restriction was continued in November 1997. The applicants did not appeal. The restriction was prolonged by the Social Director in December 1998, to last until the end of 2000. The visits are to take place under supervision in the premises of a school at the children’s place of residence. However, one of the visits is to take place at the applicants’ home in the presence of the substitute parents. The Social Director considered, inter alia, that the reunification of the family is not in sight as the substitute family is now the children’s actual home. The applicants’ have appealed against the Board’s decision which confirmed the Social Director’s decision.
The applicants complained that their right to respect for their family life guaranteed under Article 8 of the European Convention on Human Rights had been violated, and that they had been deprived of an effective remedy under Article 13 of the Convention.
Law: Article 8 of the Convention - It was undisputed before the Court that impugned measures had a basis in national law and, to that extent, the Court was satisfied that such was the case. In the Court’s view the relevant Finnish law clearly aimed at protecting “health and morals” and “the rights and freedoms” of children. There was nothing to suggest that it was applied for any other purpose in the present case.
The Court then examined whether the impugned measures were “necessary in a democratic society” in the light of the case as a whole. In so far as the taking into care was concerned, the Court found that the reasons given and the methods used were arbitrary and unjustified in the circumstances. The Court noted that the applicants were not given any chance of even beginning their family life with the new-born J. and that the care order concerning M. could not be reasonably justified in a situation in which the child was already in a safe environment and faced none of the risks mentioned in the relevant law as a precondition for the care order. Despite the margin of appreciation enjoyed by the national authorities in assessing the necessity of taking a child into care, the Court considered, in the light of the case as a whole, that the reasons adduced to justify the care orders were not sufficient and that the methods used in implementing those decisions were excessive. The Court therefore concluded that the taking into public care constituted a violation of Article 8 of the Convention.
As regards the authorities’ refusal to terminate the care, the Court noted that it is not its task to substitute its view for that of the national authorities as to what should have been done. Nor did the Court suggest that public care should in all circumstances be a strictly temporary measure. Even so, in the circumstances of the case, it appeared that there was a lack of any effort seriously to consider the termination of public care, despite evidence of an improvement in the situation which had led to the care orders, and that this amounted to such a lack of fair balance between the various interests involved as to constitute a violation of Article 8 of the Convention. Therefore the Court concluded that there had been a violation of that Article on this ground also.
In so far as the access restrictions and prohibitions were concerned, the Court considered that it was not necessary to examine the access restrictions as a separate issue, except in so far as the present situation was concerned. In that respect, the Court accepted that the national authorities may consider such restrictions necessary in the light of the interests of the children. Therefore the Court concluded that there had been no violation of Article 8 of the Convention in that respect.
Conclusion: violation (unanimously).
Article 13 of the Convention - The Court noted that the applicants could apply to administrative courts against the care order, refusal to terminate the care and various access restrictions. There was no indication that the Finnish administrative courts would not, as a general matter, fulfil the requirements of Article 13. Therefore, the Court considered that there had been no violation of Article 13 of the Convention.
Conclusion: no violation (unanimously).
Article 41 of the Convention - The applicants claimed that they had suffered non-pecuniary loss resulting from a violation of Article 8. Taking into account the obvious frustration caused to the applicants by the breach of their right to their family life, the Court, making its evaluation on equitable basis, awarded the applicants 40,000 Finnish marks (FIM) each, i.e. FIM 80,000 in total, as just satisfaction for the applicants’ non-pecuniary damage in respect of the violation of Article 8 of the Convention. Having considered the costs and expenses claimed by the applicants, they were awarded FIM 5,190 less the amount received for legal fees from the Council of Europe in legal aid.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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