L. AND H. v. FINLAND

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25651/94

by L.

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 7 September 1994 by L.  against Finland and registered on 14 November 1994 under file no. 25651/94;

Having regard to the reports 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 citizens, born in 1965 and 1928 respectively and resident at the municipality of M., Finland The first applicant (“the applicant father”) is the adopted son of the second applicant (“the applicant grandfather”). 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

The applicant father has two daughters, P., born in 1985, and S., born in 1991. The applicant father married the mother of his children, E., on 21 September 1991. E. became mentally ill after the birth of their second child, S., and was hospitalised for several times.

In the beginning of 1992 the parents were planning a divorce. On 20 January 1992 the Social Director of the City of K. placed the children in provisional public care, principally suspecting that P. had been sexually abused and supposing that S. was in serious danger of being subjected to similar abuse. P. was admitted for observation in a child psychiatric clinic and S. was placed in a substitute family. The applicant father and E. were opposed to the public care order.

On 30 January 1992 the Social Welfare Board (sosiaalilautakunta, socialnämnden) of K. upheld the provisional public care orders. It also restricted the parents’ right of access to P. to two weekly visits at the hospital and decided not to disclose S.’s whereabouts.

The parents, represented by the Public Legal Adviser (yleinen oikeusavustaja, allmänna rättsbiträdet) of K., appealed to the County Administrative Court (lääninoikeus, länsrätten) of Vaasa.

On 9 March 1992 the social authorities informed the applicant father and E. that the child psychiatric investigation did not result in any finding that P. had been subjected to sexual abuse.

On 19 March 1992 the Social Welfare Board formally decided to place the children in public care. The Board considered that the parents were incapable of providing them with the stimulation necessary for their growth and development as well as with basic security. It noted that the mother was suffering from a mental illness and that there were problems in the parents’ relationship. P. had been used as an instrument in conflicts arising between the parents and the applicant father’s adoptive parents. Her development did not correspond to that of the average for her age.

The parents appealed, again represented by the Public Legal Adviser.

P. was later placed in the same substitute home as S.

On 19 May 1992 the parents lodged a complaint with the police concerning the children’s placement in public care and the implementation of the care orders. They accused both the officials and the members of the Social Welfare Board of having violated domestic law. Meanwhile, the Social Welfare Board also lodged a complaint with the police, accusing the applicants and their representative of threats and violent resistance against its officials.

On 28 June 1992 the parents were allowed to see their children for the first time after their placement in the substitute home.

On 17 August 1992 the County Administrative Court rejected the parents’ appeal against the public care order of 19 March 1992. The Court rejected their request for an oral hearing. The parents had stated that they had given up their plans to divorce and would be more motivated to co-operate with the Social Welfare Board. The Court nevertheless found that the deficiencies in the children’s care and the other home conditions risked jeopardising their development seriously.

On 17 August 1992 the County Administrative Court also rejected the parents’ appeal against the Social Welfare Board’s decision of 30 January 1992 to restrict their access to P. and not to disclose S.’s whereabouts.

The parents, still represented by the Public Legal Adviser, appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against the County Administrative Court’s confirmation of the care orders. No further appeal lay open to them in respect of the access restriction and the non-disclosure of whereabouts.

On 31 August 1992 the Police District of the City of K. decided not to bring the parents’ complaint of 19 May 1992 to the attention of the Public Prosecutor as the matters complained of concerned the Social Welfare Board’s decision, which could be appealed against to the County Administrative Court, and did not appear to be a criminal matter.

On 3 December 1992 the Social Welfare Board prolonged the access restriction until 31 May 1993. It agreed to three two-hour long supervised meetings between the children and the parents. The Board prohibited all access between the children and their grandparents until 30 April 1993, considering that these contacts had been disturbing the children’s life in their substitute family as well as P.’s schooling.

The Public Legal Adviser advised the applicants not to challenge the access restriction and prohibition.

On 8 January 1993 the Supreme Administrative Court found no reason to amend the County Administrative Court’s decision of 17 August 1992.

The Public Legal Adviser advised against lodging a request with a view to having the care orders revoked.

On 4 May 1993 the Social Welfare Board prolonged the prohibition on access between the children and the grandparents until 31 December 1993. The Board again considered that the grandparents’ behaviour had disturbed the children’s life in the substitute home. It also noted their strong resistance against the children’s placement in public care.

On 8 June 1993 the Social Welfare Board prolonged the restrictions on access between the children and their parents until 31 May 1994. The children and their parents were to meet four times in supervised conditions in the substitute home. The Board again referred to the need to guarantee the children a peaceful growth environment and the need to ensure the substitute parents’ work peace.

On 9 September 1993 the Public Prosecutor brought charges against, inter alia, the applicant grandfather for having violently resisted social welfare officials H. and S. by verbally threatening them on 13 February 1992 as well as having verbally threatened K. on 31 July 1992, in September 1992 and on 18 December 1992. Similar charges were brought against the applicant father for threats expressed to K. on 27 July 1992 and on 15 January 1993. Further charges were brought against, inter alia, both applicants for false denunciation committed by the lodging of the complaint to the police on 19 May 1992. Finally, charges were brought against the applicant grandfather for defamation of public authority on account of a letter published in a daily and for certain counts of telephone disturbance directed against, inter alia, the Social Director. The applicants were later convicted on at least some counts and sentenced to fines. The applicant grandfather appealed to the Court of Appeal which, on 12 May 1995, upheld the District Court judgment.

On 25 October 1993 the parents requested permission that the access restriction be alleviated and that they be allowed to keep the children over Christmas 1993.

On 24 November 1993 the Social Welfare Board maintained the access restriction imposed on 8 June 1993 and prolonged it until 31 December 1994. From June to December 1994 the children and their parents were to meet three times in supervised conditions.

The applicant father appealed to the County Administrative Court, requesting (1) that he be granted cost-free proceedings and free legal assistance; (2) that an oral hearing and an inspection be held; (3) that the social welfare authorities should be considered as biased in dealing with the case; (4) that the Court should obtain P.’s own opinion in regard to the access arrangements, either indirectly or through a child psychiatrist; (5) that the access restriction be revoked; (6) that the Social Welfare Board be ordered to draw up a public care plan aiming at a reunification of their family; (7) that the Board be ordered to state clearly which concrete conditions in his home needed to be changed and to order the Board to support his efforts to change those conditions; and (8) that the Board be ordered to co-operate with an objective child psychiatrist. In support of his first request the applicant apparently adduced a certificate of indigence.

The Social Welfare Board submitted that the access restrictions had been necessary. It referred to, inter alia, an incident in August 1993, when the applicant father had forced P. to read statements written by the grandparents and which had mentioned the substitute family in negative terms. The substitute parents had told P. to call her parents but the telephone number of the substitute family had had to be changed after they had received certain inappropriate calls.

On 14 December 1993 the Social Welfare Board prolonged the prohibition of access between the children and the grandparents until 31 December 1994. The grandmother fell seriously ill and was exceptionally allowed to visit the children in their substitute home for three hours on 23 December 1993 in supervised conditions.

The grandparents appealed to the County Administrative Court, requesting (1) that they be granted cost-free proceedings and free legal assistance; (2) that an oral hearing be held; (3) that unlawfully obtained correspondence from them to the children should be ignored by the Court; (4) that the social welfare authorities should be considered biased to deal with the case; (5) that the Court should obtain P.’s own opinion in regard to the access arrangements; and (6) that the access restrictions be revoked.

In its submissions of 28 February 1994 the Social Welfare Board maintained that the access prohibition had been necessary on account of the grandparents’ resistance both against the public care and the activities of the officials of the Board. The Board annexed copies of letters and cards which the grandparents had sent to the children and which had mentioned the substitute family in negative terms. According to the Government, P. had herself opened the letters and given them to her substitute parents who in turn had forwarded them to the social authorities. In the Board’s opinion, the grandparents’ resistance had influenced the children and was capable of jeopardising their positive development. Other close relatives as well as friends of the children had pursued the children’s interests and these contacts had been in accordance with the children’s own opinion.

In their further submissions in reply of 5 March 1994 the grandparents stressed, inter alia, that the correspondence invoked by the Social Welfare Board was of an exclusively private character and had thus been unlawfully obtained and introduced in the proceedings.

In the beginning of 1994 the parents moved apart and the applicant father moved back to his adoptive parents’ home.

After an oral hearing on 17 February 1994 the District Court (käräjäoikeus, tingsrätten) rejected the applicant father’s request that his parents be appointed as the children’s supplementary custodians. Both their mother and the Social Welfare Board had objected to the request. The District Court’s judgment was later upheld on appeal.

On 7 June 1994 the County Administrative Court rejected the applicant father’s requests nos. 1-5. The Court noted that under the law a cost-free trial could not be granted in a case concerning access restrictions; there was no need for a hearing or an inspection; none of the officials or members of the Social Welfare Board who had decided in the case could be considered biased; P.’s opinion had already been obtained; and the applicant father’s negative feelings towards the public care situation and the children’s placement in a substitute home had been transmitted to the children during his visits, thereby clearly jeopardising their development and rendering the access restrictions necessary. The Court finally dismissed requests nos. 6-8 for lack of competence without an examination of their merits. No appeal lay against the decision in so far as the applicant’s requests had been rejected.

On 7 June 1994 the County Administrative Court also rejected the grandparents’ requests in their entirety. It again noted that a cost-free trial could not be granted in a case concerning access restrictions; there was no need for a hearing or an inspection; there was no obstacle to accepting the correspondence as forming part of the court documents in the case; none of the officials or members of the Social Welfare Board who had decided in the case could be considered biased; P.’s opinion had already been obtained; and the grandparents’ negative feelings towards the public care situation and the children’s placement in a substitute home had been transmitted to the children, thereby clearly jeopardising their development and rendering the access prohibition necessary. No appeal lay against the decision.

In response to a petition lodged by the parents the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman), on 17 June 1994, found that the children’s placement in public care had been justified. In general terms, she nevertheless underlined that the grounds relied upon in a public care order should be factual and not speculative. For instance, sexual abuse of the child could not be relied upon as a fact in the absence of any expert findings corroborating such a statement. Although the issuing of a public care order could well be justified already on the basis of such suspicions, the grounds relied upon should refer to the symptoms from which the child had been found to suffer.

As for the access restrictions, the Deputy Ombudsman stressed, again in general terms, that the Social Welfare Board must actively support access arrangements between the children and both their parents and others who are close to them. Such access should not hamper the substitute family’s daily work. The access arrangements should normally be agreed upon when the public care plan was being drawn up. If an agreement could not be reached, an appealable decision was to be made and any restrictions were to be limited in time.

On 5 September 1994 the applicant father again requested that the Social Welfare Board revoke the public care orders. Alternatively, both applicants requested that the access restriction and prohibition be alleviated. On 29 November 1994 the requests were rejected. The Social Welfare Board ordered that the parents could see the children in their substitute family on five occasions during 1995. It prolonged the prohibition of access between the children and the grandparents until 31 December 1995.

In his respective appeals the applicant father requested, inter alia, that he be granted cost-free proceedings and free legal assistance. He also requested an oral hearing before the County Administrative Court.

In their own appeal the grandparents equally requested that they be granted cost-free proceedings and free legal assistance. They also requested an oral hearing.

In the case concerning the justification of the care order the County Administrative Court, on 25 April 1995, granted the applicant father cost-free proceedings and appointed Ms Suomela as his representative. It rejected his appeal without holding an oral hearing. As for the access restriction, the Court ordered that from 1 May to 31 December 1995 he could see the children once a month in their substitute home. It rejected the remainder of that appeal without holding an oral hearing. Finally, the Court rejected the grandparents’ legal aid request and appeal.

On 8 December 1995 the Supreme Administrative Court rejected the applicant father’s request for an oral hearing and upheld the County Administrative Court’s decision in regard to the justification of the care order. It declined to examine his appeals in regard to the access restriction and prohibition.

On 19 December 1995 the Social Welfare Board rejected the grandparents’ further request for a revocation of the access prohibition and prolonged the prohibition until 30 April 1996. The grandparents appealed, requesting, inter alia, an oral hearing. On 16 April 1996 the County Administrative Court rejected the appeal without holding an oral hearing.

On 21 February 1996 two social welfare officials drew up a public care plan. The applicant father objected to the plan, considering that it did not comply with domestic law. It did not, for instance, specify the conditions in his home which should be improved before the care orders could be revoked. Instead, it stated that the public care order should be kept in force for the time being as there were no grounds to revoke the order.

In the spring of 1996 the parents divorced.

On 7 May 1996 the Social Welfare Board restricted the grandfather’s access to the children.

P. was psychologically examined by Dr L. between 12 August and 6 September 1996. The doctor’s statement, dated 29 October 1996, stated, inter alia, that P. had clearly expressed that she was not willing to meet her biological parents as often as the visits took place at that time. According to the doctor’s statement, P. felt especially nervous about the applicant father and the possibility that he might loose his temper. She did not feel nervous about her mother and she could meet her mother in accordance with the practice applied at that time. It was also stated that P. was not at all willing to meet the parents of the applicant father, because they wrote her letters, which she was not able to understand, and they criticised the substitute parents. According to the statement, the examination confirmed the suspicions of sexual abuse.

In 1996 the applicant father met the children once a month.

On 3 December 1996 the Social Welfare Board prohibited the grandparents’ access to the children until the end of 1998 and ordered that the applicant father could see the children in their substitute family four times a year in 1997 and 1998. The applicants appealed to the County Administrative Court which, on 17 March 1997, upheld the Social Welfare Board’s decisions, without holding an oral hearing requested by the applicants. The County Administrative Court’s decision not to hold an oral hearing was reasoned as follows:

(translation from Finnish)

“The County Administrative Court has earlier - 17 August 1992, 7 June 1994, 25 April 1995, 16 April 1996 and 26 September 1996 - considered the public care and restriction of the right of access in respect of the children. Later P. had requested that the meetings be made less frequent. The meetings take place under supervision, and a closer examination of the suspected sexual abuse, which possibly took place before P. was taken into care, is not necessary in this connection. An oral hearing would most likely not bring to light any new evidence affecting the matter, which is why an oral hearing is manifestly unnecessary.”

On 2 January 1997 the applicants’ representative Ms Suomela made a complaint to the National Authority for Medicolegal Affairs (terveydenhuollon oikeusturvakeskus, rättskyddscentralen för hälsovården), concerning the examinations of P. made by child psychiatrist  H.L. and psychologist P.L. in the Central Hospital of S.

The question concerning the access restriction was discussed with the children on 26 November  1998 during a home visit at the substitute family’s home in the presence of two psychologists and two social workers. According to the Government, P. clearly expressed her wish that the meetings of the children with the applicants be organised in the same way and at the same frequency as previously.

On 16 December 1998 the Social Welfare Board again ordered that the applicant father could see the children in their substitute family four times a year until 31 December 2001. This decision was reasoned as follows:

(translation from Finnish)

“P. and S., who are placed in a substitute family, must be ensured a peaceful living environment.

The medical examination carried out in the child psychiatric clinic in the summer of 1996 revealed that [the applicant father] had abused P. sexually before she was taken into care. [He] has himself denied the accusations and thus tried to discredit the information given by his child. P. has said that she is nervous about the meetings and that she is happy with the present practice concerning the meetings, taking place four times a year under supervision in the home of the substitute family. She has also told that she is not willing to visit her father at his present home. More frequent meetings, making the child nervous, endanger her development.”

On 16 December 1998 the Social Welfare Board also again prohibited the grandparents’ access to the children until the end of year 2001. The decision is reasoned as follows:

“P. and S., who are placed in substitute family, must be ensured a peaceful living environment, and the substitute family must be able to look after them without disturbance.

More frequent meetings will not be in the best interest of the children, because the grandparents still strongly object to the placement of the children in a substitute family, and have expressed this in their letters to the children. The grandmother has also scared the children during an occasional meeting on 7 November 1998 by saying that the children had been kidnapped. The behaviour of the grandparents make the children confused and thus endangers their development.

P. told, in the child psychiatric clinic of the Central Hospital of S. in the summer of 1996 that [the second applicant] had abused her sexually before she was taken into care, and had also otherwise made her scared. P. has told that she does not want to see [the grandmother] and [the second applicant] at all.”

The applicants have not appealed against the Social Welfare Board’s decisions of 16 December 1998.

On 25 February 1999 the National Authority for Medicolegal Affairs, having obtained experts’ statements in this matter, rejected the applicants’ representative’s complaint of 2 January 1997. The conclusions of the Authority concerning the examinations in 1992 and, respectively, in 1996, are as follows:

(translation from Finnish)

“As regards the medical examination of [P.] which took place in the Central Hospital of S. in 1992, the National Authority of Medicolegal Affairs finds, in the light of the evidence available, that the examination in the hospital was justified. The child psychiatric examination since January 1992 was justified and the examination was mainly well organised.

The child psychiatric examination of [P.] both in the ward and in the clinic was to a large extent carried out with the usual methods of assessing extensively and profoundly the overall psychological development of the child.

On the whole the psychological examination of [P.] carried out by P.L. was extensive and carried out professionally. The methods used were appropriate. The investigation carried out does not show that the examination would not have been based on the null hypothesis.

However, the special question of possible sexual abuse of the child was not sufficiently taken into account in the examination of [P.] between 27 January and 5 March 1992, which is shown by the fact that there are relatively few patient documents concerning the examination in the ward and by the psychologist.

In the light of the evidence, the recommendation and the conclusions, in the opinion given by Senior Physician H.L. on 12 March 1992 to the Social Welfare Board of K., can be considered appropriate. ...

... In the light of the evidence, the National Authority for Medicolegal Affairs firstly notes that observations had been made on the meetings between [P.] and her parents already in 1992 when she was examined in the ward. In the opinion of Senior Physician H.L. the finding of sexual abuse is not based on the symptoms of [P.] but on the information given by her. However, in this respect the reasons given in the opinion of H.L. could have been expressed somewhat more clearly.

It was not possible to video-tape or record in some other way the interview of [P.] concerning sexual abuse, because such information was in no way expected beforehand. ...

... The child psychiatric examination of [P.] was initiated in 1996 because of reasons other than suspicion of sexual abuse, as has been mentioned above. Therefore the examination was a usual psychological examination. Because it was impossible to predict in what direction the examination would turn to, it was not possible at an early stage to take into account her rights or the consequences of information given by her, as regards the examination of sexual abuse. The observations given by the Psychologist P.L. to the National Authority of Medicolegal Affairs reveal that she had later informed [P.] in detail of what kind of measures would be taken as a result of the information given by her.

In the light of the evidence the National Authority for Medicolegal Affairs in the first place notes that the clinical examination of [P.] carried out by a doctor on 5 September 1997 was justified and adequately documented.

The psychological examination of [P.] carried out by Psychologist P.L. was extensive and on the whole professional. The methods of examination used were appropriate.

According to the evidence the examinations were carried out by Senior Physician H.L. and Psychologist P.L. objectively, and there are no indications of pressure by child welfare authorities in respect of the results of examination.

[P.] has been examined for a long time in the ward of the Central Hospital of S., and the examination included a very profound child psychiatric examination on the basis of which it can be concluded that the recommendations and conclusions made by Senior Physician H.L. were also appropriate.

On these grounds the National Authority for Medicolegal Affairs finds that the complaint by Anu Suomela, Master of Social Sciences, does not give reason for further measures.”

The decision of the National Authority of Medicolegal Affairs cannot be appealed against.

S. was heard on 17 March, 21 April and 4 May 1999 by a psychologist in the presence of a social welfare official. According to a statement, given on 24 May 1999, by the psychologist and social welfare official S. was a happy little girl who openly talks about her life. She was found to be at normal development level of her age. She seemed to be attached to her substitute parents and did not remember the time when she lived with her biological family. She found her mother’s visits to be pleasant but felt nervous about his father’s visits.         

The care plan was reviewed on 25 May 1999 by the social welfare authorities. No changes were made to the access regulations.

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: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 taken up as a normal care order referred to in Section 17 during the said period. Such a care order must be handled 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 separate civil 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). Such proceedings take place 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 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 of 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 taikka luottamustoimessa oleva henkilö on virkaa tai tointa hoitaessaan saanut tietää ilmeisestä perhe- ja yksilökohtaisen lastensuojelun 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 Local 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 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 block the enforcement of the decision, or order that the said enforcement be suspended.

According to Section 38.1 of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslag;26.7.1996/586, which entered into force on 1 December 1996), a County Administrative Court shall conduct an oral hearing if a private party so requests. The same applies to the Supreme Administrative Court where it is considering an appeal against the decision of an administrative authority. The oral hearing requested by a party need not be conducted if the claim is dismissed without considering its merits or immediately rejected or if an oral hearing is manifestly unnecessary in view of the nature of the matter or for another reason.  

(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.

(p)Supervision of the activities of health care authorities

According to the Act on National Authority for Medicolegal Affairs (laki terveydenhuollon oikeusturvakeskuksesta, lagen om rättskyddscentralen för hälsovården 1992/1074), the National Authority for Medicolegal Affairs is subordinate to the Ministry of Social Affairs and Health. Its tasks is to see to the appropriateness of citizens’ health care services by, inter alia, monitoring the activities of health care professionals, according to the Act on Health Care Professionals (laki terveydenhuollon ammattihenkilöistä, lagen om yrkesutbildade personer inom hälso- och sjukvården 1994/559). The Authority receives information about inadequacies observed in professional practice for example from patients’ notifications and complaints, the authorities, the Social Insurance Institution, pharmacies, employers, ans courts of law. The Authority has at its disposal approximately 250 permanent specialists who represent expertise in the various fields of medicine.

The Authority gives administrative guidance to the health care professionals in the form of calling  a health care professional’s attention to some feature in his actions, or presenting him or her with a caution. These reactions are not forms of sanctioning and consequently there is no right of appeal from the Authority’s decisions of this kind. However, the Authority can also sanction a professional by issuing him or her with a written warning. It has also precautionary measures at its disposal; it can restrict a person’s right to practise the profession, or entirely revoke the right to practise.

COMPLAINTS

1.The applicants complain under Article 8 of the Convention that the measures taken by the authorities have not been aimed at effectively reuniting the family. They refer, in particular, to the County Administrative Court’s decisions of 7 June 1994 upholding the severe access restriction and prohibition issued on 24 November and 14 December 1993, respectively. The applicants furthermore stress that no public care plan has been drawn up which could comply with domestic law.

2.The applicants also complain that the Social Welfare Board breached the confidentiality of the grandparents’ correspondence with the children by introducing this material in the proceedings before the County Administrative Court. They again invoke Article 8 of the Convention.

3.The applicants furthermore complain that by decision of the County Administrative Court of 7 June 1994 the applicant father was refused cost-free proceedings and free legal assistance. They stress that the Public Legal Adviser had advised against challenging the access restriction and prohibition and had refused to challenge the care orders a second time. In addition, the Adviser’s office was situated next door to that of the social welfare officials in charge of the public care matter. Her impartiality was therefore open to doubt. In any case, she later accepted to represent the children’s mother in other matters and the applicant father could therefore no longer be advised by her. The applicants invoke Article 6 §§ 3 (c) and (d) of the Convention.

4.The applicants further complain that the County Administrative Court refused to hold an oral hearing or otherwise accept further evidence of relevance to the case. They again invoke Article 6 §§ 3 (c) and (d) of the Convention.

5.The applicants furthermore complain that their freedom of expression as guaranteed by Article 10 of the Convention was violated. The opinions which they expressed in regard to the public care orders and the children’s placement in substitute homes were used as a justification for the access restriction and prohibition.

6.The applicants finally complain that they were deprived of an effective remedy whereby they could have challenged the public care orders and the access restriction and prohibition. First, the suspicions that the applicant grandfather had sexually abused P. were never corroborated by expert findings; no police investigation was carried out; and the care orders should not have been based on such suspicions. Second, the Social Welfare Board reported the applicants to the police in order to counter their request that the lawfulness of the public care orders be investigated. The Social Welfare Board thus become biased to represent the children during the proceedings concerning the access restriction and prohibition. They invoke Article 13 of the Convention.

PROCEDURE

The application was introduced on 7 September 1994 before the European Commission of Human Rights and registered on 14 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 15 April 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 Korttinen and Mr Sami Heikinheimo, Counsel, and Ms Anu Suomela, Adviser.

THE LAW

1.The applicants first complain under Article 8 of the Convention that the measures taken by the authorities have not been aimed at effectively reuniting the family. They refer, in particular, to the County Administrative Court’s decision of 7 June 1994 upholding the severe access restriction and prohibition issued on 24 November and 14 December 1993, respectively. The applicants furthermore stress that no public care plan has been drawn up which could comply with domestic law.

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.”

The Court has examined this complaint together with the complaints concerning Article 13 of the Convention which 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.”

(a)Concerning the question of exhausting domestic remedies

The Government argue that the applicant grandfather has failed to exhaust domestic remedies referred to in Article 26 (Article 35 § 1 since the entry into force of Protocol No. 11) of the Convention as he has not appealed against the decision of 7 May 1996 by the Social Welfare Board to restrict his access to the children.

The Court notes that the applicant grandfather appealed against the Social Welfare Board’s decisions of 14 December 1993, 29 November 1994, 19 December 1995 and 3 December 1996 to the County Administrative Court, requesting that the access restriction be revoked. The appeals were rejected. No appeal lay against these decisions. The Court considers that these appeals are sufficient for the finding that the applicant grandfather has raised equivalent arguments before the national courts as are now before the Court.

In the light of above the Court concludes that this part of the applicant grandfather’s application cannot be rejected for failure to exhaust domestic remedies.    

(b)Concerning the substance of the complaint

The Government consider that the complaints are manifestly ill-founded.

The Government concede that the impugned measures referred to amounted to interferences with the applicants’ right for their family life as guaranteed by Article 8 § 1 of the Convention. The Government, however, considers that these interferences do not constitute a violation of this Article as they are “in accordance with the law”, pursue legitimate aims under Article 8 § 2 of the Convention and are 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 applicant father’s 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’ rights 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 parents and children to respect for their family life. The Government consider it logical 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 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. In the present case, the children have never had a chance to spend Christmas or any other holidays or anniversaries with their family or those related to them. Since the children were taken into care, there has not been any possibility to create normal family ties. According to the applicants, the authorities do not aim to reunite the family.

The applicants also submit that the applicant father is allowed to visit the children only four times a year under supervision in the substitute parents’ home. It is also stressed by the applicants that the grandfather is not allowed to visit the children at all, not even in their substitute home. The children are not allowed to visit the applicants’ home. The applicants deny all the accusations concerning the alleged sexual abuse.

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 also complain that the Social Welfare Board breached the confidentiality of the grandparents’ correspondence with the children by introducing this material in the proceedings before the County Administrative Court. They again invoke Article 8 of the Convention in this respect (cited above).

The Government argue that the applicant grandfather has failed to exhaust remedies referred to in Article 26 (Article 35 § 1 since the entry into force of Protocol No. 11) of the Convention.

The Government note that as regards the alleged breach of confidentiality resulting from the Social Welfare Board’s submission to the County Administrative Court of private correspondence from the applicant grandfather to the children, the applicant grandfather has not exhausted the domestic remedies at all. He could have instituted, in pursuance of paragraph 2 of Section 93 of the Constitution Act and the Penal Code, proceedings against the public officials responsible for the incidents. According to the said provision of the Constitution, anyone who has suffered an infringement of his rights, or damage, through an illegal act or negligence on the part of a civil servant, is entitled to demand that the civil servant be convicted and held liable for damages, or to report him for the purpose of having charges brought against him. The applicant grandfather could also have instituted proceedings for damages against the State for actions taken by civil servants under chapters 3 and 4 of the Tort Liability Act.

The Government also note that the grandparents have sent letters to P. who has herself opened the letters and given them to her substitute parents who have then given the letters to the Social Welfare Board. The Board, on its part, has presented these documents before the County Administrative Court. The Government underlines that P. has herself wanted to provide the Social Welfare Board with the said letters, being aware of that they will be used as support to her own wishes concerning the right of access. She has disliked the negative contents of the letters and has felt anguished after having read them.

The Government observe that the Social Welfare Board has acted in accordance with chapter 17, Section 12, of the Code of Procedure which provides that the person possessing the document is under the obligation to bring it to the court when the document can be deemed to constitute an important part of evidence in the case. The Government note that the said letters have been of such significance when the question of restrictions to access has been dealt with. Also the County Administrative Court has considered in its decision of 7 June 1994 that there has been no obstacle for including the letters in the court hearing material. At any rate, the Government regard the inclusion of the letters in the court hearing material to be in accordance with law and necessary in a democratic society for the protection of health and morals as well as the rights and freedoms of others, i.e. the children, and also clearly proportionate for achieving these aims. Accordingly, the Government is of the opinion that there is no violation of Article 8 of the Convention.

The applicants argue that the claim that a young child, in order to oppose access and the termination of the care, has independently handed over letters, which she has received from her grandparents, to the legal proceedings as a demonstration of her wishes, is unsound. The importance of the letters is also disputed as no analysis of their contents has ever been demonstrated. Including these letters in the court material was not lawful, nor was it necessary in a democratic society.

Leaving aside the question of the exhaustion of the domestic remedies, the Court first examines whether there has been an interference with the applicant grandfather’s right to respect for his correspondence. In this respect, the Court recalls that the Convention organs have previously held that the protection of “correspondence” provided by Article 8 of the Convention cannot be invoked if the documents referred to had already reached their addressee and did no longer constitute “correspondence” within the technical meaning of the term (see, No. 9614/81, G., S. and M. v. Austria, Dec. 12.10.1983, D.R. 34, p. 122-123; and No. 21962/93, A.D. v. the Netherlands, Dec. 11.1.1994, D.R. 76-A, pp. 161-162). The fact that others than the addressee took cognizance of the letters does not therefore necessarily constitute an interference with the applicant’s right to correspondence.    

In any event, the Court also notes that, according to the Finnish law, the Social Welfare Authorities could bring the letters before the court as the letters could be deemed to constitute an important part of evidence in the case. It is irrelevant in this respect whether the letters actually affected the assessment of evidence before the domestic courts as it was a matter for the appreciation of the domestic courts. Moreover, it is undisputed that the letters are inaccessible to the public. In these circumstances the Court finds that the interference, if any, with the applicant’s right to respect for his correspondence fulfilled the requirements of Article 8 § 2 of the Convention in that it was in accordance with the law, pursued legitimate aims and could be regarded as necessary in a democratic society.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicants furthermore complain that by decision of the County Administrative Court of 7 June 1994 the applicant father was refused cost-free proceedings and free legal assistance. They stress that the Public Legal Adviser had advised against challenging the access restriction and prohibition and had refused to challenge the care orders a second time. In addition, the Adviser’s office was situated next door to that of the social welfare officials in charge of the public care matter. Her impartiality was therefore open to doubt. In any case, she later accepted to represent the children’s mother in other matters and the applicant father could therefore no longer be advised by her. The applicants invoke Article 6 § 3 (c) and (d) of the Convention, which read as follows:

“3.  Everyone charged with a criminal offence has the following minimum rights: ...

c.  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

d.  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; “

The Court has examined this complaint under Article 6 § 1 of the Convention which reads, in so far as relevant, 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 applicant father has failed to exhaust remedies referred to in former Article 26 (Article 35 § 1 since the entry into force of Protocol No. 11) of the Convention as he has not shown that he would have applied to be represented by the Public Legal Adviser also concerning the access restrictions.

The Government recall that in the case of Airey v. Ireland ( Eur. Court H.R., judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26), a wife, who was indigent , was refused legal aid to bring proceedings in the Irish High Court for an order of judicial separation. Given the particular nature of the proceedings, the European Court held that for the applicant’s access to the court to be effective, she required legal representation. The Court emphasised the complexity of the proceedings, the need to examine expert witnesses and the emotional involvement of the parties. For the applicant, an indigent person, the effective access to court required legal aid. However, according to the Government, the present case is not comparable with the Airey case. In the present case the County Administrative Court, which was only an appeal court, rejected in its decision of 7 November 1994 many of the applicant father’s requests more or less on factual or procedural grounds, but maintained the access restrictions referring to the applicant father’s negative feelings towards the public care situation and the children’s placement in a substitute home, a simple fact which the applicant father necessarily knew. In these circumstances the matter at stake could not be considered complicated. The insignificance of the refusal of the cost-free trial for the present domestic case is also evident in the fact that the same County Administrative Court, when it next time considered the case, doubled the applicant father’s access to his children.

The applicants argue that it would have been possible to examine child development experts if the applicants were granted cost-free proceedings. The examination of such experts would have helped the applicants to challenge the decision of the Social Welfare Board. The applicants state that a precondition of a fair trial is to be represented by a legal counsel chosen by a party himself, and to obtain statements given by experts of the parties’ own choice. According to the applicants, the opportunity to use the services of a public Legal Aid Adviser does not fulfil these preconditions and is, therefore, contrary to the provisions of the Convention.

  The Court first notes that the Finnish legal aid system is based on the possibility of choosing between private advocates, which are paid by the legal aid scheme financed by the State, and Legal Aid Advisers, which were at the time of the proceedings in question  civil servants of the local municipality. The person seeking for free legal assistance without necessary means to pay for his or her own legal representation has, in most cases, the freedom of choice. However, if it is not possible to be represented by a private advocate paid by the legal aid scheme in some type of procedures (for example such as proceedings concerning merely access restriction), there is always a possibility of being represented by a public Legal Aid Adviser also in such cases. In the present case, the applicant was present with the Legal Aid Adviser in the Social Welfare Board’s meeting on 30 January 1992, and he was also represented by the Legal Aid Adviser before the County Administrative Board and the Supreme Administrative Court at least until January 1993. It is also noted that the applicant father was represented by Ms Suomela before the County Administrative Court. He could have turned to the Legal Aid Adviser, but he did not. 

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 to 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, a 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 a relatively simple written procedure and that legal representation was at the relevant time not compulsory before any courts in Finland. It is also noted that the applicant could have been represented by the Legal Aid Adviser as he was before. The applicant has not substantiated his doubts about the impartiality of the public legal adviser. Moreover, the applicant was represented by Ms Suomela in the proceedings at issue before the County Administrative Court.

In these circumstances, the Court finds that the applicant father was not denied an effective right of access to the County Administrative Court for the purpose of challenging the access restriction. The Court finds, therefore, this part of the application to be manifestly ill-founded. It follows that this part of the application must be rejected under Article 35 § 3 of the Convention.              

4. The applicants further complain that the County Administrative Court did not on any occasion hold an oral hearing, although this was regularly requested by the applicants. Nor did it otherwise accept further evidence of relevance to the case. They again invoke Article 6 § 3 (c) and (d) of the Convention (cited above).

The parties have in particular addressed the decision of the County Administrative Court of 17 March 1997 not to hold an oral hearing.

The Government note that according to the Court’s case-law in proceedings before a court of first and only instance the right to a “public hearing” under Article 6 § 1 of the Convention entails an entitlement to an oral hearing unless there are exceptional circumstances that justify dispensing with such a hearing. The Government refer to the judgments of the European Court of Human Rights in the cases of Fredin v. Sweden (no. 2) (Eur. Court H.R., judgment of 23 February 1994, Series A no. 283-A, pp. 10-11, §§ 21-22), Fischer v. Austria (judgment of 26 April 1995, Series A no. 312, pp. 20-21, § 44), Stallinger and Kuso v. Austria (judgment of 23 April 1997, Reports of Judgments and Decisions 1997-III, pp. 679-680, § 51) and Allan Jacobsson v. Sweden (no. 2) (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 168, § 46).

The Government do not dispute that the applicants have exhausted the domestic remedies in this respect and that the County Administrative Court has to provide an oral hearing if a private interested party so requests. However, the Government argue that the court has discretionary power in the matter not to arrange an oral hearing, inter alia, if it considers such a hearing manifestly unnecessary considering the nature of the case or for some other reason.

The Government recall that the County Administrative Court rejected the applicants’ request by concluding that an oral hearing would most likely not bring to light any new evidence affecting the matter, and thus considered its arrangement manifestly unnecessary. In its detailed reasoning the court referred to the fact that it has dealt with the issues of public care and restriction of the right of access in respect of the same children already six times, and that P. had requested that the meetings be made less frequent. The court also noted that the meetings take place under supervision, and that a closer examination of the suspected sexual abuse, which possibly took place before P. was taken into care, was not necessary in this connection.

According to the Government, it should be noted that the County Administrative Court had at its disposal all the relevant information concerning the matter. The applicants’ submissions to the County Administrative Court were not capable of raising issues of fact and law pertaining to the access restrictions which were of such nature as to require an oral hearing for their disposition.

The applicants submit that it is apparent from the documents that an oral hearing was regularly requested, except from the Supreme Administrative Court. The proper examination of the claims submitted by the social welfare authorities would have made it necessary to hold an oral hearing. It seems to be the principle of the County Administrative Court not to hold a hearing in any event, regardless of the circumstances of the case. The request to hold an oral hearing was rejected on 17 March 1997 even despite of the fact that the Administrative Procedure Act came into force on 1 December 1996. According to that Act, the County Administrative Court is obliged to organise an oral hearing if an interested party so demands.

(a)The proceedings in 1992-1996

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, i.e. before the proceedings leading to the decision of the County Administrative Court of 17 March 1997 had been instituted. 

Insofar as the earlier proceedings before the County Administrative Court are concerned, the Court notes that they all came to an end during the period in which the reservation was in force. Having regard to the terms of the reservation, Finland was during that period under no Convention obligation to hold an oral hearing in this case. While it is true that the effect of the reservation was to deny the applicant a right to an oral hearing before an independent and impartial tribunal, this result must be considered compatible with the Convention and a consequence of the operation of a valid reservation (see, Eur. Court H.R.,  Helle v. Finland judgment of 19 December 1996, Reports 1997-VIII, pp. 2925-2926, §§  44 and 47).

It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3 of the Convention.

(b)The proceedings in 1997

Insofar as concerns the decision of 17 March 1997 of the County Administrative Court not to hold an oral hearing, the Court considers that this part of the complaint raises complex issues of fact and law, including the question of whether the earlier proceedings covered by the reservation can be taken into account as a background in the evaluation of the compatibility of 17 March 1997 decision with the Convention. The determination of these questions should depend on the examination of the merits of the application. The Court concludes, therefore, that this part of the complaint is not manifestly ill-founded. No other grounds for declaring it inadmissible have been established. 

5. The applicants furthermore complain that their freedom of expression as guaranteed by Article 10 of the Convention was violated. The opinions which they expressed in regard to the public care orders and the children’s placement in substitute homes were used as a justification for the access restriction and prohibition. Article 10 of the Convention reads as follows:

“1.  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.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Court finds that the applicants have not shown that any decision concerning access to the children was based on motives incompatible with Article 10 of the Convention. Thus there is no appearance of an violation of that Article. It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

6.The applicants finally complain that they were deprived of an effective remedy whereby they could have challenged the public care orders and the access restriction and prohibition. First, the suspicions that the applicant grandfather had sexually abused P. were never corroborated by expert findings; no police investigation was carried out; and the care orders could not be based on such suspicions. Second, the Social Welfare Board reported the applicants to the police in order to counter their request that the lawfulness of the public care orders be investigated. The Social Welfare Board thus became biased, and as a result could not represent the children during the proceedings concerning the access restriction and prohibition. They again invoke Article 13 of the Convention (cited above).  

The Court has examined this complaint above in connection with the complaint concerning the applicants’ right to respect for their family life in relation to the decision to take the children into public care and related access restrictions, and it has concluded that to that extent the complaint should be examined on its merits.  

As to the rest of the complaint there is no appearance of a violation of the provision invoked.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the applicants’ complaints under Articles 8 and 13 of the Convention concerning the taking of children into public care and related access regulations and the complaint under Article 6 of the Convention concerning lack of an oral hearing before the County Administrative Court on 17 March 1997;

DECLARES INADMISSIBLE the remainder of the application.

Vincent BergerGeorg Ress              Registrar              President

 

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