FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 25702/94
by K. and T.
against Finland
The European Court of Human Rights (Fourth Section) sitting on 8 June 1999 as a Chamber composed of
MrG. Ress, President,
MrM. Pellonpää,
MrI. Cabral Barreto,
MrV. Butkevych,
MrsN. Vajić,
MrJ. Hedigan,
MrsS. Botoucharova, Judges,
withMrV. Berger, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 October 1994 by K. and T. against Finland and registered on 17 November 1994 under file no. 25702/94;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 7 January 1997 and the observations in reply submitted by the applicants on 24 April 1997;
Having regard to the further information submitted by the applicants on 25 January 1999 and the observations in reply submitted by the Government on 9 March 1999;
Having regard to the parties’ oral submissions at the hearing on 8 June 1999;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Finnish nationals, born in 1964 and 1968 respectively. They are cohabitees residing in the municipality of S. Before the Court they are represented by Mr Juhani Kortteinen and Mr Sami Heikinheimo, lawyers practising in Helsinki, assisted by Ms Anu Suomela of the Association for Family Rights in Finland (Perheen Suojelun Keskusliitto PESUE r.y.).
The facts of the case, as submitted by the parties, may be summarised as follows.
A.Particular circumstances of the case
At the beginning of the events relevant to the application K. had a daughter, P., and a son, M., born in 1986 and 1988 respectively. P.’s father is J. and M.’s father is V.
From March to May 1989 K. was voluntarily hospitalised for about three months, having been diagnosed as suffering from schizophrenia. From August to November 1989 and from December 1989 to March 1990 she was again hospitalised for about three months on account of this illness. In 1991 she was hospitalised for less than a week, diagnosed as suffering from an atypical and undefinable psychosis.
The applicants were initially cohabiting from the summer of 1991 to July 1993. In 1991 both P. and M. were living with them. From 1991 to 1993 K. and V. were involved in a custody and access dispute concerning P. In May 1992 custody of P. was transferred to V. and she was ordered to live with him.
K. was again hospitalised from 22 April to 7 May 1992, from 13 May to 10 June 1992 as well as from 11 to 17 January 1993 on account of psychoses. On 24 March 1993 she was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care, having initially been diagnosed as suffering from psychosis. The conditions for compulsory care were not considered to be met but she remained in voluntary care until 5 May 1993.
Allegedly, V. did not allow K., P. and M. to meet. In the spring of 1993 K.’s access to P. was further limited by the courts. At the time she was pregnant.
On 3 May 1993 a social welfare official decided on behalf of the Social Welfare Board (perusturvalautakunta, grundtrygghetsnämnden) of S. to place M. in a children’s home of K. for a period of three months. This was to be regarded as a short-term support measure pursuant to the 1983 Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983; “the 1983 Act”). The applicants had been heard on 21 April 1993.
In an opinion, requested by the Social Welfare Board, doctors M.L. and K.R. on 12 May 1993 considered that K. was not at that time able to care for M., but that her mental state could not be regarded as permanently preventing her from caring for him. Doctors M.L. and K.R. served at the hospital of H., where the applicant had been cared for since 1991 during the periods indicated above.
On 18 June 1993 K.’s third child J. was born and immediately placed in provisional public care in pursuance of Section 18 of the 1983 Act. The Social Director, who decided on behalf of the Social Welfare Board, noted that K.’s mental state had been unstable during the end of her pregnancy. He assessed that the baby’s health would be endangered, since K. had found out about the plans to place the baby in public care. The Social Director finally considered that the baby’s father, T., could not guarantee its development and safety.
In addition the Social Director referred to the family’s long-lasting difficulties, i.e. K.’s serious illness and occasionally uncontrolled emotional reactions; her incapability of accepting her illness and her lack of interest in the substitute care; the changes in the family life (the transfer of P.’s custody and the conflicts between the applicants); the family’s financial difficulties; T.’s inability to care for both J. and K.; K.’s inability to receive guidance and the impossibility of placing the whole responsibility for J.’s development on T.; and the impossibility of providing support measures to the necessary extent. Reference was finally made to opinions submitted by the hospital of H. and the children’s home of K..
On 21 June 1993 the Social Director also placed M. in provisional public care, citing principally the same reasons as in his decision of 18 June 1993 concerning J.
It is unclear whether the applicants were heard prior to the Social Director’s decisions. K. was apparently notified of the decision of 18 June 1993 by a letter and a telefax sent to her on 24 June 1993.
On 21 June 1993 the Social Welfare Board took note of the provisional public care orders and prohibited all unsupervised access between, on the one hand, K. and, on the other hand, J. and M. respectively.
From 22 to 30 June 1993 K. was again hospitalised at the hospital of H. on account of psychosis.
In the beginning of July 1993 T. moved away from the applicants’ home, allegedly having been told by the social welfare officials that he had to break off his relationship with K. “if he wanted to keep” J. The applicants nevertheless continued their relationship.
On 15 July 1993 the Social Welfare Board upheld the provisional care orders concerning J. and M. and prolonged the access restriction until 15 September 1993. K. was allowed to see the children only in the company of her personal nurse. The Board essentially considered that K.’s state of health remained unstable; that she was suffering from aggressive and uncontrolled emotional moods; and that the public care proceedings were a mentally strenuous ordeal for a patient. As regards J., the Board therefore believed that her personal security could be jeopardised if access were to take place without supervision. As regards M., the Board feared that K.’s visits to the children’s home “could no longer be controlled by its staff, which would not be in his interest”.
From 20 to 21 July 1993 K. was again hospitalised at the hospital of H. on account of a psychosis. She was hospitalised on a further occasion on 26 July 1993.
On 12 August 1993 the Social Welfare Board referred both public care orders to the County Administrative Court (lääninoikeus, länsrätten) of Turku and Pori for confirmation, as the applicants had opposed them. In support of its referrals the Board submitted a statement by a social welfare official dated 25 August 1993. According to the statement, T. would not be able to care both for M. and the newborn J. alone, since K. was in the same home. K. had been psychotic “for the last four years”. T. had been in contact with J. at the children’s home three to four times a week. While staying in a flat attached to the children’s home of K., he had cared for J. for two whole weeks and had subsequently cared for her three days out of the week in his new home. The Board had therefore begun investigating whether it would be possible to entrust him with the responsibility for J. with the help of support measures taken by the Board.
In the course of the custody and access dispute concerning P., a social worker had, on 8 May 1992, testified before the District Court (kihlakunnanoikeus, häradsrätten) of S. that she had noticed nothing alarming in the applicants’ family situation, nor that the family conditions would have differed from those of “normal families” in any significant way. The social worker therefore considered K. suitable to bring up children, regardless of the fact that she had received treatment for mental illness. The social worker stated that K. had always kept her children “clean and healthy”. At least with the help of her mother and with some support measures it would be possible for K. to act as her children’s custodian.
On 9 September 1993 the County Administrative Court confirmed the care order concerning J., considering that K. had been mentally ill; that the applicants had had conflicts “as a result of which T. had moved away from their home in the beginning of July 1993”; that because of K.’s illness and the family’s other problems the applicants had been unable to provide adequate care to J.; that the care support provided to the family had not sufficiently improved the family’s situation and that the measures could not be expected to satisfy J.’s care needs. No hearing was held.
On 14 September 1993 the Social Welfare Board prolonged the access restriction until 15 December 1993.
The following notes of a social welfare official appear among those in the case records of the Social Welfare Board:
(translation from Finnish)
“14 September 1993:
...
2 ... In addition, the importance of future access between J. and T. has now been questioned, since J.’s placement in [public foster care] is under preparation. It will be difficult for T. to give J. up, ...
13 October 1993:
K. ... states that she is considering moving [back] together [with T.] when she is discharged from the hospital on 29 October. ...[Her] wish is that M. and J. would be placed in the same [foster] family. ...
18 October 1993:
... T. agrees to J.’s placement in a [foster] family. ...
25 October 1993:
... T. is slightly opposed to J.’s placement in a [foster] family. ... It is again explained [to him] why J. cannot live with him as long as [the applicants] continue their relationship. ...
26 October 1993:
... The essential issue from J.’s point of view is [the applicants’] internal relationship; if [it] continues, J. cannot stay at home with T. ... The alternatives are: J. comes back home to T. or is placed in [foster care]. ... [He] can provide the basic care and upbringing alone provided he receives certain support. ...
27 October 1993:
... The access between M. and K. have been successful now that T. has been attending [the visits]. ...”
On 27 October 1993 K. was discharged from the hospital of H.
On 11 November 1993 the County Administrative Court confirmed the care order concerning M., repeating the reasons put forward in its decision of 9 September concerning J. No hearing was held.
In their appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against the confirmation of the public care order concerning M., the applicants were represented by the Public Legal Adviser (yleinen oikeusavustaja, allmänna rättsbiträdet) of S.
By decision of 21 January 1994 the Social Welfare Board placed J. in a foster home at the City of K., some 120 kilometres away from the applicants’ home. M. joined her on 7 February 1994. The foster parents had no children of their own. Social welfare officials told both the applicants and the foster parents that J.’s and M.’s placement would last “for years”. The applicants proposed that the children’s public care be implemented in the home of relatives.
On 2 February 1994 the Social Welfare Board drew up a care plan concerning the implementation of the public care. The applicants’ alternative care plan was allegedly ignored. For instance, the children were not allowed to see one of their grandmothers, with whom M. had a particularly close relationship.
After the adoption of the care plan on 2 February 1994 the applicants requested that the access restriction be alleviated. For instance, T. had been permitted to see J. only once a month.
On 21 March 1994 the applicants requested, inter alia, that the Social Welfare 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.
On 17 May 1994 the Social Director restricted both applicants’ access to the children to one monthly visit to the foster home, where access was to take place under supervision during three hours. The Director considered that the grounds for the public care still existed. Although the applicants were dissatisfied with the visits set out in the care plan, affording the children an unlimited right to see their parents would create an obstacle to their positive placement. The applicants appealed and requested that they be granted cost-free proceedings.
On 26 May 1994 the applicants requested that the Social Welfare Board proceed to the revocation of the public care of M. and J.
On 18 September 1994 the Social Director allegedly told the applicants that any further children born to them would also be placed in public care.
In an opinion of 22 September 1994 submitted at the Social Welfare Board’s request Dr K.P., a specialist in psychiatry, commented on the possibility of revoking the public care orders. She concluded that K.’s mental state would not prevent her from acting as the children’s custodian. She noted, inter alia, that T. was K.’s closest support in their care and upbringing. Also K.’s mother, at the time her guardian ad litem, was ready to help in caring for them. Dr K.P.’s opinion was also based on a report submitted by Dr K.P., a psychologist, who had come to the same conclusion as regards K.’s ability to act as her children’s custodian.
On 23 September 1994 the Supreme Administrative Court extended the time for K.’s appeal against the confirmation of the care order issued in respect of J. On the same day the Court rejected the appeal against the confirmation of the care order concerning M. on 11 November 1993.
The Public Legal Adviser advised against lodging a request with a view to having the care orders revoked.
On 28 September 1994 the County Administrative Court held an oral hearing concerning the access restriction imposed on 17 May 1994. It took witness testimony from two psychiatrists, who had interviewed K. One of them, Dr T.I-E., did not know K. personally but commented on a diagnosis concerning her mental state by indicating that K. had a tendency to react in a psychotic manner to conflict situations. Dr K.P. stated that K.’s state of health did not prevent her from caring for her children. Consequently, if her illness had been the reason for the access restriction, that reason no longer existed.
In a written expert opinion, requested by the Social Welfare Board and submitted to the County Administrative Court, Dr E.V., a children’s psychiatrist, was of the opinion that the children should be permanently cared for by the foster home and that the applicants’ visits should, for the time being, be prohibited so as to protect the children and the foster home. According to the applicants, Dr E.V. had not met any of the applicants or children, nor had he consulted with the other psychiatrists before making his proposal.
According to the applicants, social welfare officials had provided Dr E.V. with K.’s hospital records and other pertinent files concerning the applicants’ family without obtaining their consent. For instance, medical reports concerning K. were repeatedly produced and obtained without her knowledge. Moreover, the notes of her personal nurse were passed on to other authorities. Finally, intimate details pertaining to, inter alia, the applicants’ sexual life were disclosed even to individuals not working within the social welfare administration. The applicants have submitted a significant number of annotations made by T. and social welfare officials in the Social Welfare Board’s case records.
On 11 October 1994 the County Administrative Court upheld the access restriction issued on 17 May 1994. It noted that neither of the witnesses who had been heard orally had been willing to state any opinion in regard to the children’s development. It reasoned, inter alia, as follows:
(translation from Finnish)
“... [By allowing] access to take place once a month and [by allowing contact by virtue of correspondence] it will be ensured that the children will retain knowledge about their biological parents. If the grounds for the public care later cease to exist, a reunification of the family will thus be possible. ...”
The County Administrative Court dismissed the applicants’ request for cost-free proceedings, since the relevant legislation did not cover disputes concerning access restrictions. At the Court’s hearing the applicants were nevertheless assisted by Ms Suomela.
On 18 October 1994 K. appealed against the care order in respect of J. as confirmed by the County Administrative Court on 9 September 1993.
On 17 November 1994 social welfare officials revised the public care plan, proposing that the children meet the applicants once a month on neutral premises at the Family Advice Centre of K., where the substitute parents were living. The applicants objected thereto, considering that this would have entailed a further restriction of their access to the children. Instead they requested two meetings a month, one of which was to take place at their place of residence. On 22 December 1994 they demanded an appealable decision upon their access request.
In a letter of 22 November 1994 the applicants requested that the Social Welfare Board obtain an explanation from the social welfare officials in charge of the applicants’ case concerning alleged breaches of confidentiality of K.’s hospital records and other pertinent files concerning the applicants’ family. They also requested that the Board admonish the officials and that they be replaced. The Board heard the officials and, on 9 May 1995, decided that they had not breached their duty of secrecy. The applicants appealed.
In a letter of 22 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 Social Welfare Board. The meetings would also be supervised.
In his decision of 11 January 1995 the Social Director confirmed that there were no longer grounds for the access restriction. On 31 January and 28 February 1995 the Social Welfare Board confirmed the decision of 11 January 1995. The applicants appealed.
K. was hospitalised from 15 to 24 February and from 11 April to 29 May 1995, apparently on account of psychosis.
On 14 March 1995 the Social Welfare Board rejected the applicants’ request of May 1994 that the care order be revoked. The applicants appealed on 5 April 1995, also requesting that they be granted cost-free proceedings and afforded free legal representation. They also requested an oral hearing.
On 7 April 1995 a further child, R., was born to the applicants. Having given birth, K. was treated at the hospital of H. for about two months, while R. was being cared for by T.
On 13 June 1995 the County Administrative Court quashed the Social Welfare Board’s decision of 9 May 1995 concerning the officials’ duty of secrecy, since it should not have contained any notice of appeal, it not being appealable. On 16 November 1995 the Supreme Administrative Court rejected the applicants’ further appeal.
On 15 June 1995 the County Administrative Court granted the applicants cost-free proceedings and appointed Ms Suomela as their representative. It decided not to hold a hearing in respect of the applicants’ request for a revocation of the care orders. It provided the parties with an opportunity to supplement their written observations.
On 15 June 1995 the County Administrative Court considered that the revised care plan drawn up on 17 November 1994 had entailed an access restriction. Therefore and since the applicants had not been properly heard in respect of their access request the matter was referred back to the Social Welfare Board for new consideration.
In the light of the County Administrative Court’s decision the Acting Social Director, on 28 June 1995, formally restricted the applicants’ access to the children to one meeting a month up to 31 May 1996. The meetings were to take place in the substitute home. In addition, the substitute parents were to visit the applicants with the children every six months. The Director considered, inter alia, that it was important that the children settle themselves in their growth environment in the substitute family. Closer contacts with their parents would mean a change and insecurity as well as create a new crisis in their development. The process of settling which had started well would be jeopardised. For the children’s progress it was therefore necessary that their situation remain stable and secure. The Director’s decision was confirmed by the Social Welfare Board on 22 August 1995. The applicants appealed.
In regard to the justification of the care order concerning J. the Supreme Administrative Court, on 21 August 1995, granted the applicants cost-free proceedings as from 1 March 1994 and appointed Ms Suomela as their representative. It upheld the County Administrative Court’s decision of 9 September 1993.
On 28 September 1995 the County Administrative Court rejected the applicants’ appeals of 5 April 1995 without holding an oral hearing. The Court noted, inter alia, that according to medical certificates K.’s state of health had improved but her emotional life was still unstable. She therefore continued to be in need of psychotherapy and medication. In addition, a further child had been born to the applicants and K. had again been treated at the hospital of H. These two factors had caused an additional strain militating against a revocation of the care orders.
On 3 November 1995 the County Administrative Court rejected the applicants’ appeal against the access restriction confirmed on 22 August 1995.
On 25 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. As the applicants were not present when the proposal was made, the care plan was again revised on 9 October 1996 insofar as the access restriction was concerned. The applicants then proposed that the children meet the applicants without supervision once a month. The public care plan was, however, revised as proposed by social welfare officials.
On 17 June 1996 the Social Director restricted both applicants’ access to the children, until 30 November 1997, to one monthly visit in the premises of a school at the children’s place of residence, where access was to take place under supervision during three hours. One of the foster parents was also ordered to be present at the time of the access. The Director’s decision was confirmed by the Social Welfare Board on 20 August 1996. The applicants’ appealed against the decision to the County Administrative Court, requesting an oral hearing. The court obtained a statement from child psychiatrist Dr J.P., who was also recommended by the applicants’ representative to the Social Welfare Board. Dr J.P. states, inter alia, as follows:
(translation from Finnish)
“The right of access of M. and J. to the persons close to them must primarily be examined in the light of their psychological growth and development and health. This point of view requires the examination of quality, permanency and continuance of their human relationships, because the psychological growth and development take place in interaction with human relationships. In my opinion the human relationships are to be examined from the children’s point of view. ...
... In conclusion I note that before M. was placed in the children’s home ... the mother had been in psychiatric hospital treatment 8 times, in total some 13 months. Thus M. had lived with his mother for 45 months, i.e. 3 years 9 months. The longest that they spent together was 2 years 1 month. ... T. has, as “stepfather”, helped to look after M. for at most 10 months. ... substitute parents have so far looked after M. for 3 years 3 months without interruption. ... In practice M. has not had any kind of relationship with his biological father ... .
In the light of the facts above, I note that the human relationships in the early childhood of M. have, due to the circumstances, been non-continuous, short-term and changing. The most stable and continuous relationships have been with the substitute parents ... . Therefore, these relationships are the most relevant and important ones for the psychological growth and development of M.
... J. was born in June 1993. She was taken into public care immediately after she was born. At first she stayed in the District Hospital for a short time, and later at a reception home for small children. T. as the biological father of J. looked after her for two weeks in June and August 1993. J. was placed in the substitute family, ..., in January 1994, when she was some 7 months old. So far J. has stayed with her substitute family for some 3 years 3 months without interruption. J. is now a little over 3 years 10 months old.
In the light of this, I note that, due to the circumstances, J. has not had any other significant and important relationships than those with her substitute parents. The relationship of J. with the substitute parents are of primary importance for her psychological growth and development. ...
...Especially from the point of view of the children but naturally also from the point of view of the substitute parents, the substitute family is a family to which the principles concerning family enshrined in the United Nations Convention on the Rights of the Child and in the European Convention for the Protection of Human Rights and Fundamental Freedoms can be applied in the same way as to biological families. This point of view is especially important when, due to the circumstances, the biological family has not lived together.
In the light of facts given above, I note that the arrangements helping and supporting the substitute parents of M. and J. are in the best interest of the children. The arrangement shall, in the first place, ensure the important, continuous and safe human relationships of M. and J. with the substitute parents... .
It is also important for the psychological growth and development of M. and J. that, in the safe and stable conditions offered by the substitute family, they are able to maintain and create a good internalised picture of their biological parents ... from whom they have been separated because of the circumstances.
In my opinion this can be made by complying with the decision of 20 August 1996 of the Social Welfare Board of S., concerning the right of access. At present an unrestricted right of access or a right of access of the extent suggested by the applicants is not in the interest of the children, because the capability of K. and T. to fulfil the emotional needs of M. and J. is deficient, ... Such arrangement concerning the right of access clearly endanger the health and development of M. and J. In my opinion the question of an unrestricted right of access should be evaluated when the children have attained the age of twelve.”
In the statement of 10 September 1996 Dr K.P. stated that in her opinion K.’s psychiatric state could not be regarded as an obstacle for K. to act as the custodian of her children.
On 2 April 1997 the care plan was again revised by the social welfare authorities. The applicants were not explicitly heard in this respect, but apparently their point of view was known to the authorities and was written down in the plan.
According to a statement made on 3 July 1998 by Dr K.M. (formerly Dr K.P.), K. has not been hospitalised since May 1995 and her health has been stable since the beginning of 1995. There have been no problems concerning the care of R. (who has lived with her parents all the time and has not been taken into care). It is recommended by Dr K.M. that social welfare authorities should reduce or finish control visits to the applicants’ home in order to give K. a possibility to settle down for normal life without constant supervision from the authorities.
On 2 April 1997 the care plan was again revised by the social welfare authorities. The applicants were not heard.
On 12 June 1997 the County Administrative Court rejected the applicants’ appeal against the Social Welfare Board’s decision of 20 August 1996 to restrict the applicants’ access right. The County Administrative Court refused the applicants’ request to have an oral hearing.
Although the applicants had stated only in their rejoinder that the appeal was also made on behalf of [R.], the County Administrative Court interpreted in its decision that it was in part made in her name. The court stated that a person on whom the decision is directed, or a person to whose right, duty or interest the decision has a direct effect, has the right of appeal. The court considered that the Board’s decision. which concerned R.’s siblings’ and parents’ right of access, was not such a decision.
On 28 November 1997 the Social Director restricted the applicants’, and consequently their youngest child R.’s, access to J. and M. to one monthly visit of three hours in the premises of a school at the children’s place of residence until the end of 1998. The applicants did not appeal.
The care plan was revised on 1 December 1998, as before.
The restriction orders were prolonged by the Social Director, on 11 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 was not in sight as the substitute family was now the children’s factual home; that the applicants’ access to the children once a month and through correspondence was enough to maintain the children’s awareness of their biological parents; and that closer contacts with the applicants would endanger the children’s development and bring a change and insecurity as well as create a new crisis in their development. The applicants appealed against this decision to the Social Welfare Board which, on 2 February 1999, rejected the appeal and upheld the Social Director’s decisions. in the reasoning of the decisions, the Board quotes both the County Administrative Court and Dr J.P.
According to the reports, written by the supervisor who attended the meetings of the children and the applicants during the period from 25 May 1996 to 10 January 1999, the adults get on quite well together during the meetings. J. often plays games with M. When R. was smaller, J. played by herself, but later it seems that the girls, J. and R., spend more time together. On the other hand, it seems that the first applicant takes very little contact with J. and M. According to the supervisor’s description, especially in the earlier reports, the first applicant seems to have concentrated on R.
B.Relevant domestic law and practice
(a)The principles of the Child Custody and Right of Access Act and
the Child Welfare Act
Section 1 of the Child Custody and Right of Access Act (laki lapsen huollosta ja tapaamisoikeudesta,lag ang. vårdnad om barn och umgängesrätt 361/1983) defines what is meant by child custody and what is required from the custodian:the objectives of custody are to ensure the well-being and the balanced development of a child according to its individual needs and wishes, and to ensure for a child close and affectionate relationships in particular with its parents;a child shall be ensured good care and upbringing as well as the supervision and protection appropriate for its age and stage of development; a child should be brought up in a secure and stimulating environment and receive an education that corresponds to its inclinations and wishes; anda child shall be brought up with understanding, security and gentleness. It shall not be subdued, corporally punished or otherwise humiliated. The growth of a child towards independence, responsibility and adulthood shall be supported and encouraged;
Section 4 of the Child Custody and Right of Access Act requires that the custodian of a child shall ensure its well-being and development, as provided for in Section 1. For this purpose it provides the custodian with the authority to make decisions on the care, upbringing and place of residence of a child and on other matters relating to the person of the child.
The Child Custody and Right of Access Act requires both the parents and authorities to ascertain the wishes and views of the child when making and executing a decision concerning the child, if this is possible in view of the age and stage of development of the child (Sections 4.2, 8, 9.4, 11, 34.1 point 3; and Sections 34,2. 39.1 and 2, 46.2). Court decisions concerning the custody of a child cannot be executed against the will of a child who has attained the age of 12.
Also according to the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 as amended on 9.2.1990/139), a child who has attained the age of 12 was given an independent right to be heard in most important child welfare decisions related to his or her person and to appeal.
In situations where the child does not live with its parents or where they are separated because of need of protection or other corresponding reason, the child has in principle the right to keep up personal relations and contacts with its parents. However, this right can be limited on specific grounds and by certain procedures prescribed by law, for example, because of a danger and threat caused by contacts or on the basis of the best interests of the child (Section 2 of the Child Custody and Right of Access Act; Sections 19.2, 24 and 25 of the Child Welfare Act; Articles 9 and 10.2 of the Convention on the Rights of the Child).
According to Section 1 of the Child Welfare Act, a child is entitled to a secure and stimulating growing environment and to a harmonious and well-balanced development, and has a special right to protection. The objective of the Child Welfare Act is that a child will in all circumstances get such care and upbringing as is required by the Child Custody and Right of Access Act.
(b)Assistance in open care
In case the parents or custodians of the child are not able to provide the child with sufficiently secure conditions for its growth and development, the Social Welfare Board and holders of its offices shall take the necessary measures in accordance with the Child Welfare Act. These measures include the assistance in open care referred to in Sections 12 to 14 and the duty to take a child into care and provide substitute care referred to in Section 16.
Section 13.1 of the Child Welfare Act (as amended by Act 139/1990) stipulates as follows:
“Sosiaalipalvelut ja muut tukitoimet. Kun lastensuojelun tarve oleelliselta osin johtuu riittämättömästä toimeentulosta, puutteellisista asumisoloista tai asunnon puuttumisesta tai kun mainitut seikat ovat oleellisena esteenä lapsen ja perheen tai sellaisen itsenäistymässä olevan nuoren kuntoutumiselle, joka ennen 18-vuottaan on ollut lastensuojelun asiakkaana, on kunnan viivytyksettä järjestettävä riittävä taloudellinen tuki sekä korjattava asumisoloihin liittyvät puutteet tai järjestettävä tarpeen mukainen asunto.”
(translation from Finnish)
“When the need for child welfare is caused primarily by inadequate income, deficient living conditions or lack of housing, or when these factors constitute a serious obstacle to the rehabilitation of a child and family, or a young person in the process of becoming independent who had been a social welfare client before attaining the age of 18, local authorities must provide adequate financial support without delay, and correct deficiencies in housing conditions or provide housing according to need.”
Assistance in open care referred to in Section 13.2 of the Child Welfare Act includes general assistance in accordance with the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982). In addition to general assistance, special forms of assistance are mentioned:lay helper or supporting family;adequate therapy;holiday and recreational activities; andassisting a child in his or her education and training, in job and home finding, and in his or her leisure activities and other personal needs, by providing financial and other support.
The assistance shall be provided in co-operation with the child or young person and its parents or other persons caring for them.
(c)Taking a child into care and substitute care
According to Section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her ifthe child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour,the measures of assistance in open care are not appropriate or have proved to be inadequate; andsubstitute care is considered to be in the best interests of the child.
According to Section 9.2 of the Child Welfare Act, substitute care shall be provided without delay where it is needed and is in the best interests of the child.
If a child is in imminent danger or otherwise in need of an immediate care order and substitute care, the Social Welfare Board may take him or her into care without submitting the decision to the County Administrative Court for approval (Child Welfare Act, Section 18).
An emergency care order shall expire within 14 days of the decision unless it is confirmed as a normal care order referred to in Section 17 during the said period. Such a care order must be made within 30 days, or on special grounds within 60 days of the emergency order. A decision on emergency care can be appealed in the normal way.
(d)The duration and termination of care
Care in accordance with Section 16 of the Child Welfare Act terminates when the child attains the age of 18 or concludes marriage. Public care shall be terminated earlier where the preconditions for the termination of care exist.
According to Section 20 of the Child Welfare Act, the Social Welfare Board shall discharge a child from care, when the need for care or substitute placement referred to in Section 16 no longer applies, unless such discharge is clearly contrary to the best interests of the child.
When an order to take a child into care is given, it is always valid until further notice and the termination of the order must always be considered separately taking into account the best interests of the child, in accordance with Sections 9 and 20 of the Child Welfare Act.
(e)Custodians and their rights
Taking into care differs from adoption in so far as the parents are able to keep limited custodial rights and guardianship responsibilities. Taking a child into care also maintains contact between the child and the parents as well as relationships under family law such as statutory succession, including the right to a family name and to inheritance.
When a child is in care, a court may decide, through a separate proceedings initiated upon application, who shall be given custody and guardianship of the child as stipulated in the Child Custody and Right of Access Act and the Guardianship Act (holhouslaki, lag angående förmynderskap). This refers to a civil procedure in a general court of first instance. The Social Welfare Board has the competence to initiate an application concerning the custody and right of access in a general court and the right to be heard in the matter. The court decision does not directly affect the administrative decision of taking a child into care nor its enforcement.
(f)The competence of the Social Welfare Board
On the custody of a child in care Section 19.1 of the Child Welfare Act stipulates as follows:
“Huostaanotetun lapsen huolto. Kun lapsi on otettu sosiaalilautakunnan huostaan, sosiaalilautakunnalla on huostaanoton tarkoituksen toteuttamiseksi oikeus päättää lapsen hoidosta, kasvatuksesta, valvonnasta ja muusta huolenpidosta sekä olinpaikasta. Sosiaalilautakunnan tulee kuitenkin pyrkiä yhteistoimintaan lapsen vanhempien ja muiden huoltajien kanssa.”
(translation from Finnish)
“When the Social Welfare Board takes a child into care, it shall be empowered to decide on the child’s care, upbringing, supervision, other welfare, and residence. The Board shall, however, make every effort to co-operate with the parents or other custodians of the child.”
(g)The right of access
Through a decision to take a child into care, the Social Welfare Board automatically takes over the competence to decide on the contacts between the child and its parents and other persons close to the child (Section 19.2 of the Child Welfare Act).
According to Section 24 of the Child Welfare Act a child who is in substitute care shall be ensured the continuous and secure human relations that are important for his or her development. The child is entitled to meet his or her parents and other persons close to him or her and to keep in touch with them. The Social Welfare Board shall support and facilitate the child’s access to his or her parents and to other persons close to him or her.
The right of access is a right of the child. Thus, this right cannot be enforced in a way that would harm the child or would be against the best interests of the child. The child has no obligation to keep in touch with its parents.
Section 25 of the Child Welfare Act stipulates the grounds on which a child’s access to its parents may be restricted. The Social Welfare Board or the director of a residential home may restrict the right of access of a child in substitute care to its parents or other persons close to him or her, as stipulated in Decree,if such access clearly endangers the development or safety of the child; orif such a restriction is necessary for the safety or security of the parents, or the children or staff in the residential home.
On the above-mentioned grounds, the Social Welfare Board may decide that a child’s whereabouts shall not be disclosed to its parents or custodians while the child is in care.
According to Section 25 of the Child Welfare Act and Section 9 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983), a decision concerning the restriction of the right of access shall be valid for a specified time, and it shall mention the persons whose rights are restricted. In addition, the decision shall mention what kind of contacts are restricted by the decision and to what extent the restriction is in force.
The manager of a child welfare institution may decide on a brief restriction, if the restriction is in force for a maximum of one month. When it is necessary to continue the restriction or when it is necessary to order it for a longer time than one month, the Social Welfare Board shall decide on the matter.
A decision to restrict the right of access restricts the child’s right to meet its parents and other parents close to the child. Such close persons to the child are the child’s custodian or other legal representative, members of family and those persons who have in reality kept in touch with the child before and when the child has been in care.
(h)Care plan
A care plan shall be made for each case of family-orientated and individual child welfare, unless the matter under consideration requires only temporary counselling or guidance. This plan must be adjusted when necessary.
In a case of a child taken into care (Section 16 of the Child Welfare Act) or a child placed in residential care as assistance in open care (Section 14 of the Child Welfare Act) the care plan shall mentionthe purpose and objectives of the placement;what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents;how the child’s right of access to its parents and other persons close to the child is going to be organised; andhow after-care is going to be organised.
According to Section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with the parties.
(i)Right to obtain information
The social welfare authorities have, in accordance with Section 56 of the Social Welfare Act, the right to get the necessary information from other authorities in the performance of their work, without prejudice to the obligation to confidentiality.
According to Section 40.1 of the Child Welfare Act, the authorities have the duty of notification as follows:
“Ilmoitusvelvollisuus. Jos sosiaali- ja terveydenhuollon, koulutoimen, poliisitoimen tai seurakunnan palveluksessa taikkaluottamustoimessa oleva henkilö on virkaa tai tointa hoitaessaan saanut tietää ilmeisestä perhe- ja yksilökohtaisen lapsensuojelun tarpeessa olevasta lapsesta, hänen on ilmoitettava asiasta viipymättä sosiaalilautakunnalle.”
(translation from Finnish)
“If, in the course of his or her activities, an employee or elected official in health care, social welfare, education, the Police or the Church of Finland gets to know about a child in evident need of family-oriented or individual child welfare, he or she shall notify the Social Welfare Board without delay.”
According to Section 40.2 of the Child Welfare Act, any other person may similarly notify the Social Welfare Board.
(j)Child welfare authorities
According to Section 4 of the Social Welfare Act, a Social Welfare Board, with several members elected by the municipality, shall be responsible for providing social welfare in its area, and shall be charged with the responsibilities assigned to social welfare boards in other Acts. The Social Welfare Board shall approve the general principles for the provision and development of child welfare under its supervision.
The Social Welfare Board shall also represent the municipality, secure its rights and speak on behalf of the municipality in the individual application of social welfare measures, and conclude agreements and other judicial acts on behalf of the municipality in this respect.
According to Section 12 of the Social Welfare Act, the decision-making authority of a municipal Social Welfare Board can be delegated to officials subordinate to such board, with the exception of decisions involving compulsory welfare for an individual. Thus, the social welfare director named by the Social Welfare Board may make decisions concerning emergency care (Section 18), decisions concerning orders to take a child into care or to provide substitute care (Section 16), and decisions to terminate care (Section 20) referred to in the Child Welfare Act, when the different parties have no objections to the decision.
(k)Appeal in accordance with the Child Welfare Act
According to Section 35 of the Child Welfare Act, the relevant provisions of Chapter 7 of the Social Welfare Act shall be applicable to any appeal against a decision made under this Act, unless otherwise stipulated in the Child Welfare Act. The special provisions of the Child Welfare Act have precedence over the general provisions in the following way.
According to Section 17.2 of the Child Welfare Act, a decision made by the Social Welfare Board on taking a child into care or placing him in substitute care, must be submitted within thirty days to the County Administrative Court for approval, if a child who has attained the age of 12 or his or her custodians oppose the measure or if the hearing required by Section 17.1 of the Act could not be arranged.
According to Section 36, decisions concerning taking into care or placement in substitute care can be appealed to the County Administrative Court within thirty days of notification of the decision. During that time, such an appeal may also be lodged with the local Social Welfare Board which shall forward it to the County Administrative Court together with its own statement within fourteen days. The submission and the appeal shall in this case be dealt with and decided at the same time.
Section 37.1 of the Child Welfare Act stipulates that appeals against a decision on care orders, on placement in substitute care, on termination of care, or on a matter concerning housing, as stated in Section 13.1 of the Act, made by the County Administrative Court in pursuance of this Act, may be lodged with the Supreme Administrative Court.
On the other hand, according to Section 37.2 of the Child Welfare Act, other decisions than those stated in subsection 1, relating to family-oriented and individual child welfare rendered by the County Administrative Court in pursuance of the Child Welfare Act, cannot be appealed.
According to Section 35.2 of the Child Welfare Act, a child who has attained the age of 12, his or her parents, his or her custodians, and the person responsible for his or her care and upbringing or who was responsible immediately prior to the case in question, may appeal in cases concerning the taking of a child into care, placement in substitute care or termination of the care. According to subsection 1, a child who has attained the age of 12 may also appeal in the cases referred to in Section 13.1 of the Child Welfare Act concerning financial support in open care and providing housing.
(l)Other provisions on appeal
A decision made by an official subordinate to a municipal Social Welfare Board shall not be subject to ordinary process of appeal, but a person challenging such a decision shall have under the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltnings förfarande) the right to have the decision reviewed by a municipal Social Welfare Board within fourteen days of having been informed of the decision. The Social Welfare Board shall deal with the matter as without delay. A decision made by the Social Welfare Board can be appealed to the County Administrative Court.
According to Section 46 of the Social Welfare Act, a decision made by the Social Welfare Board is subject to appeal to a County Administrative Court within thirty days of the service of the decision. Certain decisions by the County Administrative Court can be appealed to the Supreme Administrative Court. This is the case, for example, concerning the right of a social welfare client to obtain documentary information on himself or herself or his or her child. Other decisions than those relating to family-oriented and individual child welfare rendered by the County Administrative Court in pursuance of the Child Welfare Act can in general be appealed to the Supreme Administrative Court, although Section 49 of the Social Welfare Act restricts the right of appeal to some extent.
When a decision of an authority can be appealed, the authority in question shall attach to its decision the information and instructions concerning the right of appeal.
According to Section 47 of the Social Welfare Act, a decision made by a municipal Social Welfare Board is enforceable regardless of appeal if:the decision requires immediate implementation; orfor reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; andwhen the Social Welfare Board has ordered the decision to be enforced at once.
When an appeal has been lodged, the appellate authority can stay the enforcement of the decision, or order that the said enforcement be suspended.
(m)Interested parties and their rights
According to the Child Custody and Right of Access Act, a person under 18 years of age is legally incompetent (minor). A minor’s right to be heard in child welfare matters is regulated as a special provision by Section 10.2 of the Child Welfare Act, according to which besides custodians, a child who has attained the age of 15 is entitled to speak in child welfare cases concerning the child. A child who has attained the age of 12 is entitled to be heard in child welfare cases as stipulated in Section 15 of the Administrative Procedure Act; he or she is also entitled to demand the social services and other support mentioned in Section 13.
Section 17.1 of the Child Welfare Act determines the parties to be heard in matters concerning taking a child into care, placing a child in substitute care and termination of care. According to this Section, the following persons have the right to be heard in accordance with Section 15 of the Administrative Procedure Act:the custodian of the child,a biological parent who is not the custodian of the child,a person currently in charge of the child’s care and upbringing or who was in charge immediately prior to the case in question, anda child who has attained the age of 12.
They will also have to be notified of a decision concerning taking a child into care and termination of care following the procedure for special notification. The authorities also have, when necessary, an obligation to inform them of possibilities of appeal.
Section 15, subsection 1, of the Administrative Procedure Act lays down a general obligation to hear the parties. Before any decision is made the party shall be afforded an opportunity to reply to the claims put forward by others as well as to any evidence that may affect the decision.
(n)Publicity of documents concerning the parties
Section 40 of the Social Welfare Act provides for the right of a social welfare client and the client’s guardian to obtain information concerning the client. According to Section 40.3, a social welfare client shall have access to documented information and to other data, which relate to the matter concerned, in the possession of social welfare personnel or a social welfare organ referred to in Section 6.1 (municipal Social Welfare Board).
The exercise of this right, however, is subject to Section 19.2 of the Publicity of Official Documents Act (laki yleisten asiakirjain julkisuudesta, lag om allmänna handlingars offentlighet).
According to Section 19 of the Publicity of Official Documents Act, a party’s right to obtain information concerns also documents which are not public in the following manner: even if a document is not public, an applicant, appellant or other person whose interest, right or obligation the matter concerns (a party), shall have the right to information on the document if it may influence or may have influenced the consideration of the case (Section 19.1). According to Section 19.2, information on a document referred to in Subsection 1 may be withheld if informing the party about the document would be contrary to an especially important public or private interest and if the document is not part of the material of the proceedings in a civil or criminal case. The provision also names a few exceptions to the right to obtain information. For example, documents prepared in a pre-trial investigation may be withheld until the end of the investigation.
The right of a guardian to obtain information, concerning his or her child who is a social welfare and also a child welfare client, may be restricted in accordance with Section 19.2 of the Publicity of Official Documents Act and Section 40.4 of the Social Welfare Act. According to the latter provision, the guardian has the right to obtain information “when so justified”. In deciding whether it is justified to give information on a child to its guardian, the age, maturity and the best interests of the child have to be taken into account.
According to Section 57 of the Social Welfare Act, a guardian may decide on the protection of privacy of a child only if the child is incapable of evaluating the significance of such permission. The principle is that a child is an independent client of social welfare, and this child’s privacy is protected against the child’s parents or guardians, when necessary.
(o)Supervision of the activities of child welfare authorities
The County Administrative Board, in the capacity of a State authority on regional level, has the general competence to supervise the activities of municipalities. Also, following a procedural appeal, the County Administrative Board (lääninhallitus, länsstyrelsen) can investigate whether a local authority has acted in accordance with the current law.
In addition, the Ministry of Social Affairs and Health supervises and directs, in its capacity as the highest authority in social welfare and health matters, the activities of municipalities and, when necessary, also the activities of the County Administrative Board in child welfare. Appeals concerning individual cases addressed to the Ministry of Social Affairs and Health are sent to the County Administrative Board which decides on the matter as the first instance.
The Parliamentary Ombudsman and the Chancellor of Justice (oikeuskansleri, justitiekansler) have the competence to supervise the legality of the measures taken by any authorities. Also, complaints concerning activities of child welfare authorities can be addressed either to the Parliamentary Ombudsman or to the Chancellor of Justice. The Parliamentary Ombudsman also supervises, for example, the activities of child welfare institutions by initiating inspections.
COMPLAINTS
1.The applicants complain that their right to respect for their family life has been violated on account of the placement of M. and J. in public care. The children were also deprived of their liberty, since they were placed in public care away from their home. The authorities never gave the applicants a chance to work out their problems with the help of their relatives and by taking advantage of various support measures provided by the social and health care authorities. Such arrangements would, for instance, have enabled the children to stay with their relatives and the authorities could have avoided resorting to a public care order immediately. Instead J. was placed in public care without having been given an opportunity to bond with the applicants and obtain her mother’s milk and without entrusting to T. the responsibility for her care. The care order issued in respect of M. allegedly caused him serious mental traumas and unnecessary suffering. The Social Welfare Board and the courts failed to carry out a proper examination of the applicants’ request for a reunification of their family. The access restrictions were excessive, thereby distancing J. and M. both from their parents and other relatives. The County Administrative Court’s decision to uphold the access restriction issued on 17 May 1994 was principally based on an opinion submitted by the expert approached by the Social Welfare Board, Dr E.V., who had not interviewed the applicants. Most recently, the care orders have been upheld with reference to K.’s unstable state of health around the time when she gave birth to her fourth child in April 1995. In effect her state of health deteriorated because the social welfare officials had let her understand that this baby might also be placed in public care. The applicants invoke Articles 5 and 8 of the Convention.
2.The applicants furthermore complain of wholesale disclosure of confidential information concerning their private and family life. Apart form the above-mentioned disclosure of material to Dr E.V., various medical reports were produced and obtained without K.’s knowledge. Moreover, the notes of K.’s personal nurse were passed on to other authorities. Intimate details pertaining to, inter alia, the applicants’ sexual life were disclosed even to individuals not working within the social welfare administration. The applicants again invoke Article 8 of the Convention.
3.The applicants also complain that they were refused cost-free proceedings before the County Administrative Court concerning the access restriction issued on 17 May 1994. They could therefore not afford to call experts who might have refuted the expert opinion submitted at the Social Welfare Board’s request. They were also unable to obtain free legal assistance in the proceedings concerning the access restriction. The Public Legal Adviser did not wish to challenge this restriction. In addition, the Adviser’s office was situated next door to that of the social welfare officials in charge of the public care matter. The Adviser’s impartiality was therefore open to doubt. They invoke Article 6 §§ 3 (c) and (d) of the Convention.
4.The applicants also complain that the public care of M. and J. was confirmed by the County Administrative Court without any oral hearing having been held. They again invoke Article 6 §§ 3 (c) and (d) of the Convention.
5.The applicants complain that their children were deprived of their freedom of speech, since their opinion on the public care and its implementation has never been investigated. Article 10 of the Convention is invoked.
6.The applicants furthermore complain that they were pressured by the authorities to live apart in order to obtain permission to have their children live with one of them. The care orders effectively deprived the applicants of their right to found a family. Finally, they have been threatened with the issuing of further public care orders, should they decide to have more children. They invoke Article 12 of the Convention.
7.Finally, the applicants complain that they were deprived of an effective remedy, regarding their rights under Article 8 of the Convention, within the meaning of Article 13 of the Convention.
PROCEDURE
The application was introduced on 26 October 1994 before the European Commission Human Rights and registered on 17 November 1994.
On 27 June 1996, the Commission decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 7 January 1997, after four extensions of the time-limit fixed for that purpose. The applicants replied on 24 April 1997, also after an extension of the time-limit.
On 4 March 1997 the Commission granted the applicants legal aid.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
On 7 January 1999 the judge appointed as Rapporteur to the case decided, pursuant to Rule 49 § 2 (a) of the Rules of Procedure, to request the applicants to submit further information. The applicants submitted the information on 25 January 1999. The Government replied on 9 March 1999.
On 8 June 1999 an oral hearing was held in camera in Strasbourg. The Government were represented by Mr Holger Rotkirch, Agent, Mr Arto Kosonen, Co-Agent, Ms Camilla Busck-Nielsen, Ms Aulikki Liinamaa, Ms Piia-Liisa Heiliö and Mr Jorma Piha, Advisers. The applicants were represented by Mr Juhani Kortteinen and Mr Sami Heikinheimo, Counsel, and Ms Anu Suomela, Adviser.
THE LAW
1.The applicants complain that their right to respect for their family life has been violated on account of the placement of M. and J. in public care. The children were also deprived of their liberty, since they were placed in public care away from their home. The authorities never gave the applicants a chance to work out their problems with the help of their relatives and by taking advantage of various support measures provided by the social and health care authorities. Such arrangements would, for instance, have enabled the children to stay with their relatives and the authorities could have avoided resorting to a public care order immediately. Instead J. was placed in public care without having been given an opportunity to bond with the applicants and obtain her mother’s milk and without affording T. the responsibility for her care. The care order issued in respect of M. allegedly caused him serious mental traumas and unnecessary suffering. The Social Welfare Board and the courts failed to carry out a proper examination of the applicants’ request for a reunification of their family. The access restrictions were excessive, thereby distancing J. and M. both from their parents and other relatives. The County Administrative Court’s decision to uphold the access restriction issued on 17 May 1994 was principally based on an opinion submitted by the expert approached by the Social Welfare Board, Dr E.V., who had not interviewed the applicants. Most recently, the care orders have been upheld with reference to K.’s unstable state of health around the time when she gave birth to her fourth child in April 1995. In effect, her state of health deteriorated because the social welfare officials had let her understand that this baby might also be placed in public care. The applicants invoke Articles 5 and 8 of the Convention.
The Court has examined this part of the application under Articles 8 and 13 of the Convention, considering that Article 5 of the Convention is not applicable to the applicants’ situation as they have not been deprived of their liberty within the meaning of this provision.
Article 8 of the Convention reads as follows:
“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.”
Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government consider that the complaints are manifestly ill-founded.
The Government concede that the impugned measures referred to above amounted to interferences with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1 of the Convention. In the present case these interferences do not, however, constitute a violation of this provision as they are “in accordance with the law”, pursue legitimate aims under Article 8 § 2 of the Convention and are to be regarded as “necessary in a democratic society”.
The Government consider it indisputable that the measures in question had a basis in Finnish law, especially in various provisions of the Child Welfare Act and Child Welfare Decree. The Government note that the relevant domestic law is clearly intended to protect the interests of children and that it is not applied to any other purpose. The contested measures were aimed at protecting the “health and morals” and “rights and freedoms” of the applicants’ two children and thus pursued legitimate aims within the meaning of Article 8 § 2 of the Convention.
The Government stress that, taking into account all circumstances in the present case, the social welfare authorities do not foresee the physical reunification of the children and the applicants. However, the Government regard the interferences with the applicants’ right to respect for their private and family life as falling within the margin of appreciation of the State and therefore as “necessary in a democratic society”. The Government refer, inter alia, to the Johansen v. Norway judgment (Eur. Court H.R., judgment of 7 August 1996, § 64) in which the Court has stated that: 1) a wide margin of appreciation is recognised to the authorities in assessing the necessity of taking a child into care (and its continuation), whereas 2) a stricter scrutiny is called for both any further limitations, such as restrictions placed by the authorities on parental rights and access, and any legal safeguards designed to secure an effective protection of the right of the parents and children to respect for their family life. The Government consider it logical that that a wide margin of appreciation be accorded to the relevant authorities in both of the aforementioned categories. This is even more so as the termination of the substitute care presupposes not only the improvement or reversal, if at possible, of those family circumstances which led to the taking into care of a child, but also the fulfilment of appropriate stability in the child’s life in general.
The applicants argue that the Government’s aim is to alienate the children from their parents. Since the children were taken into care, there has not been any possibility for the applicants to create normal family ties. In the applicants’ opinion, it is not enough that the children have consciousness of their parents. The ultimate aim should, in any event, be the reunification of the family.
The Court considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that the complaint is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
2.The applicants furthermore complain of wholesale disclosure of confidential information concerning their private and family life. Apart from the above-mentioned disclosure of material to Dr E.V. various medical reports were produced and obtained without K.’s knowledge. Moreover, the notes of K.’s personal nurse were passed on to other authorities. Intimate details pertaining to, inter alia, the applicants’ sexual life were disclosed even to individuals not working within the social welfare administration. The applicants again invoke Article 8 of the Convention (cited above).
(a)Concerning the questions of exhausting domestic remedies and compliance with the six-month rule
The Government argue that this part of the application is for the most part unspecified not only in substance, but also in relation to the time of the alleged disclosure. According to the Government, the applicants cannot be considered to have complied with the six months’ rule. The Government also argue that the applicants have not exhausted the domestic remedies as they have not instituted any proceedings against the public officials responsible for the incidents.
The Court notes that the applicants requested that the Social Welfare Board obtain an explanation from the social welfare officials in charge of the applicants’ case concerning alleged breaches of confidentiality. The Board decided, on 9 May 1995, that the officials had not breached their duty of secrecy. The applicants’ appeal was quashed by the County Administrative Court on 13 June 1995 since there was no right to appeal against the decision. on 16 November 1995 the Supreme Administrative Court rejected the applicants’ further appeal. The application was introduced on 26 October 1994.
In the light of the above, the Court concludes that this part of the application cannot be rejected for failure to exhaust domestic remedies or to comply with the six-month rule.
(b)Concerning the substance of the complaint
The Government note that, according to the domestic legislation, the social welfare authorities have, in accordance with Section 56 of the Social Welfare Act, the right to obtain the necessary information from the authorities in the performance of their work, without prejudice to the obligation of confidentiality. This is relevant in child welfare situations, where it is necessary to take measures against the will of the child or the parents. In order to examine the need of child welfare measures, broad co-operation is often needed with other social welfare authorities as well as with health and school authorities. Thus, in cases where the consent cannot be requested or received, it is possible to obtain the information on the basis of Section 56 of the Social Welfare Act.
The Government state that when a decision to take a child into care or a decision on substitute care or restriction of right of access is made against the will of the child or parents, it has to be based on sufficient factual evidence. According to the Government, it is often possible to get the evidence only by requesting documents that contain delicate information or statements from authorities who have been in contact with the child, parents and family. The obligation of confidentiality shall not prevent the disclosure of a given matter to a party who shall have access ex officio to information on the matter. Other authorities, such as courts, the police and supervisory authorities, sometimes have to obtain delicate information from social welfare authorities. It may be necessary to disclose secret information to a limited extent also in situations where the social authorities need to consult experts. The Government are, therefore, of the opinion that in the present case the disclosure of information on the applicants’ private and family life matters, insofar as it can be considered an interference with the applicants’ rights under Article 8 of the Convention, was “in accordance with the law”, pursued legitimate aims under Article 8 § 2 of the Convention and is to be regarded as “necessary in a democratic society”.
The applicants submit that the documents including confidential information concerning their private and family life was disclosed to Dr E.V. without the applicants’ consent. The documents included intimate details concerning, inter alia, the applicants’ sexual life. The disclosure of such information violates their right to respect for their family and private life.
The Court concludes that the disclosure of the information was an interference with the applicants’ right to respect for their private life. The interference was, however, in accordance with the law. It also pursued legitimate aims under Article 8 § 2 of the Convention, that is, the protection of the health and morals of the applicants’ two children as well as their rights and freedoms. In view of the fact that Dr E.V. was also bound by the confidentiality rules as an expert of the social welfare authorities and as a medical doctor, and that the documents are not accessible to anyone else, the disclosure was also proportionate to the aims pursued. The Court finds that, in the circumstances of the present case, the disclosure of the delicate information concerning the applicants’ family and private life can be regarded as necessary in a democratic society. Therefore, there is no appearance of a violation of the applicants’ rights guaranteed under Article 8 of the Convention.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
3.The applicants also complain that they were refused cost-free proceedings before the County Administrative Court concerning the access restriction issued on 17 May 1994. They could therefore not afford to call experts, who might have refuted the expert opinion submitted at the Social Welfare Board’s request. They were also unable to obtain free legal assistance in the proceedings concerning the access restriction. The Public Legal Adviser did not wish to challenge this restriction. In addition, the Adviser’s office was situated next door to that of the social welfare officials in charge of the public care matter. The Adviser’s impartiality was therefore open to doubt. They invoke Article 6 § 3 (c) and (d) of the Convention.
The Court has examined this part of the application under Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ....”
The Government argue that the applicants have not exhausted the domestic remedies in this respect as they have not shown that they would have applied to be represented by the public Legal Aid Adviser also concerning the access restriction. In the Government’s view, this part of the application should thus be rejected.
The Government also argue that the present case is not comparable with the Airey case (Eur. Court H.R., judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26), as the matter at stake could not be considered complicated and as legal representation is not compulsory in Finland. In the present case the County Administrative Court, acting as an appellate body, rejected in its decision of 11 October 1994 the applicants’ appeal against the access restrictions. The Government recall that, despite the refusal by the County Administrative Court, the applicants were nevertheless assisted before the court by Ms Suomela, and that the access restrictions issued on 17 May 1994 remained unchanged. In the Government’s opinion, the refusal of the cost-free trial has not had any relevant significance for consideration of the access restrictions even in this connection.
In the light of the above-mentioned Airey case, the Court notes that the Convention does not guarantee legal aid in civil cases. Whilst Article 6 § 1 of the Convention guarantees litigants an effective right of access to the courts for the determination of their civil rights and obligations, it leaves to the State a free choice of the means to be used towards this end. The institution of a legal aid scheme constitutes one of those means, but there are others such as, for example, simplification of the procedure. However, Article 6 § 1 of the Convention may sometimes compel the State to provide for the assistance of a lawyer when such assistance provides indispensable for an effective access to the court either because legal representation is rendered compulsory or by reason of the complexity of the procedure or of the case.
In the present case, the Court notes that the procedure before the County Administrative Court was relatively simple and that legal representation was at the relevant time not compulsory before any courts in Finland. It is also noted that the applicants could have been represented by the Legal Aid Adviser as they had been before. Moreover, they were represented by Ms Suomela in the proceedings at issue before the County Administrative Court on 11 October 1994. Furthermore, the applicants’ witnesses were orally heard at the hearing.
The Court also notes that, on 15 June 1995, the County Administrative Court granted the applicants cost-free proceedings and appointed Ms Suomela as their representative in proceedings closely connected with those mentioned above. It decided not to hold a hearing in respect of the applicants’ request for the revocation of the care orders. The court did, however, provide the parties with an opportunity to supplement their written observations. The applicants could, if they so wished, have requested an expert opinion at this stage but they did not. The expenses of such an expert opinion, which would have been potentially relevant also with regard to the access restriction, could have been requested to be paid by the legal aid scheme.
The Court does not find it substantiated that the impartiality of the Legal Aid Adviser was open to doubt for the reasons invoked by the applicant.
It therefore concludes that the applicants were not denied an effective right of access to the County Administrative Court for the purpose of challenging the access restriction. The Court therefore finds this part of the application manifestly ill-founded and rejects it pursuant to Article 35 § 4 of the Convention.
4.The applicants also complain that the County Administrative Court held only one oral hearing and that the public care of M. and J. was confirmed by the court without any oral hearing having been held. They again invoke Article 6 § 3 (c) and (d) of the Convention.
The Court notes that the County Administrative Court rendered decisions in this case on 9 September and 11 November 1993, 11 October 1994, 15 May, 13 June, 28 September and 3 November 1995 and 12 July 1997. Only the decision on access restriction of 11 October 1994 was preceded by an oral hearing held on 28 September 1994.
The Court notes that the instrument of ratification of the Convention deposited by the Finnish Government on 10 May 1990 contained a reservation according to which Finland could not guarantee a right to an oral hearing before the courts mentioned in the reservation. The reservation was withdrawn insofar as concerns administrative courts as from 1 December 1996 subject to a transitional provision according to which the reservation applied to all proceedings instituted before that date. The Court has earlier held that reservation was in conformity with Article 64 (after the entry in force of Protocol No. 11 on 1 November 1998, Article 57) of the Convention (see Helle v. Finland judgment of 19 December 1996, Reports of Judgments and Decisions 1997-VIII, pp. 2925-2926, § 44).
The Court notes that having regard to the terms of the Finnish reservation and the instrument effecting its partial withdrawal as from 1 December 1996, Finland was under no Convention obligation to ensure the holding of an oral hearing by the County Administrative Court. This applies also to the proceedings which ended on 12 June 1997, since these proceedings had been introduced before 1 December 1996.
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3 of the Convention.
5.The applicants complain that their children were deprived of their freedom of speech, since their opinion on the public care and its implementation has never been investigated. Article 10 of the Convention is invoked.
Article 10 § 1 of the Convention reads as follows:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”
An examination by the Court of this complaint as it has been submitted by the applicants does not disclose any appearance of a violation of the rights and freedoms set out in Article 10 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
6.The applicants furthermore complain that they were pressured by the authorities to live apart in order to obtain permission to have their children live with one of them. The care orders effectively deprived the applicants of their right to found a family. Finally, they have been threatened with the issuing of further public care orders, should they decide to have more children. They invoke Article 12 of the Convention.
Article 12 reads as follows:
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
The Court notes that the applicants’ daughter J. was placed in public care on 18 June 1993 and her brother M. on 21 June 1993. The applicants have another daughter, R., who was born on 7 April 1995. R. has lived all her life with the applicants and has not been taken into public care. It is also noted that the applicants have lived together, with the exception of a short period in July 1993. They have not married.
In these circumstances, the Court cannot find any indication that the applicants have been denied the right to found a family.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
7.In so far as the applicants complain that they were deprived of an effective remedy within the meaning of Article 13 of the Convention in respect of the care orders and the access restrictions and their implementation.
This part of the application was examined in connection with Article 8 of the Convention. Therefore, the Court finds that it is not necessary to examine it as a separate issue.
For these reasons, the Court, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the applicants’ complaint under Articles 8 and 13 of the Convention concerning the taking of children into public care and related access regulations and their implementation;
DECLARES INADMISSIBLE the remainder of the application.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy