FOURTH SECTION
DECISION
Application no. 65092/09
M.I. and OTHERS
against Finland
The European Court of Human Rights (Fourth Section), sitting on 13 November 2012 as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Paul Mahoney,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 10 December 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The seven applicants, Mrs M.I., her adult son and her five other minor children (“the applicants”) are Finnish nationals. The President of the Section decided of his own motion to grant the applicants anonymity (Rule 47 § 3 of the Rules of Court) and confidentiality of the case file documents (Rule 33 of the Rules of Court). The applicants, who had been granted legal aid, were represented by Ms Leeni Ikonen, a lawyer practising in Kerava, and by Ms Anu Suomela.
2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant mother, born in 1968, and her husband were married in 1987. They have six children: D., born in 1987, S., born in 1996, I., born in 1997, R., born in 1999, L., born in 2003 and B., born in 2005. In July 2005 the applicant mother suffered a stroke which paralysed her left side. She was able to return home from hospital only nine months later. During that time her husband took care of the children and the home. He continued to do so even after her return as she could hardly walk and usually used a wheelchair.
5. In November 2005 the oldest child D. reached the age of majority.
6. In July 2006 the husband was killed in a car accident. The applicant mother and the children lived at first with her parents but moved back to their home in January 2007. As of 1 December 2006 and during 2007 the applicant mother received considerable help from the social services. A team of 4 to 6 social workers worked with the family practically round the clock.
7. On 23 August 2007, a family worker made an evaluation of the situation in the applicant’s family. According to the evaluation, the applicant mother used a wheelchair whenever she moved from one place to another and managed to get into and out of the wheelchair independently. She was quite capable of writing but needed help with opening envelopes. As to everyday routines, the report noted that the applicant mother could eat her food independently if it was already portioned. For dressing and undressing she needed verbal support and also physical help and she could not button or zip up her clothes. She was able to go to the toilet independently. When washing herself she needed help only with washing her back and feet and rinsing her hair. Regarding the applicant mother’s understanding and memory, the evaluation stated that the applicant mother lived in an imaginary reality and could not see the real situation of her family. She misunderstood things and could even understand some things quite in reverse. The applicant mother had problems with her memory and sense of time: she confused days of the week and the children’s schooldays and could not always remember when she had washed herself last, for example. The family worker reported that the applicant mother’s mental ability varied from day to day and she easily became anxious.
8. The family workers found their work in the family challenging and tiring in all respects because each of the five youngest children showed various symptoms due to their traumatic past. The applicant mother’s parents took an active part in the everyday life of the family, and this caused occasional conflicts. The family workers also experienced threats from the applicant mother’s eldest child, D., who disturbed their work. The family workers had said that they would not continue working with the family until the problems were solved.
9. On 9 October 2007 the child welfare authorities decided, as a support measure, to place the children in foster care, either in family care or in support families, until 20 October 2007.
10. As there were a lot of problems in the family, on an unspecified date the social services asked a private firm to evaluate the parenting in the family.
Proceedings relating to the taking into public care and the placement of the children
11. On 14 December 2007 the five minor children were taken into emergency public care. These decisions were reasoned by the fact that the social workers could no longer cope with the family. The children were also afraid of their grandparents and feared that they would be kidnapped and taken abroad by them. The grandparents treated the children unequally and used corporal punishment. The grandfather drank a lot of alcohol. The children showed excessive sexual behaviour, and they had all wanted to stay in their support families rather than returning home. According to the preliminary results of the on-going evaluation by the private firm, the applicant mother was unable to meet the emotional needs of the children and they had suffered from insecurity for a long time. The children violated each other’s limits sadistically but the applicant mother did not intervene. Before taking the decisions, S., I. and R. had been heard and none of them opposed the taking into public care. All the children were placed in different families.
12. On 20 December 2007 the social welfare authorities received the evaluation made by the private firm. According to the evaluation, the children were, inter alia, left on their own, even when in the company of their mother. They tried as individuals to obtain attention and care from any adult but their mother was not the primary option for any of them. The mother was mentally and physically dependent on the social workers and she was not able to cope with the children’s aggression or other feelings. She was not in practice capable of adequate parenting. The social workers had to bear too much responsibility for the children’s safety. It was more important to provide an adult to care for each child than to keep all the siblings together.
13. By letter dated 22 December 2007 the applicant mother sought rectification of this decision and proposed that the grandparents could help her to take care of the children.
14. On 31 December 2007 the emergency taking into public care was maintained by the child welfare authorities.
15. On 14 January 2008 the Director of social services submitted a request to the Administrative Court (hallinto-oikeus, förvaltnings-domstolen) for a care order for each of the children.
16. By letter dated 15 February 2008 the applicant mother appealed to the Administrative Court.
17. On 20 February 2008 the request for rectification was rejected by the child welfare authorities. All of the children had integrated well in their foster families and were concerned about their possible return home. Taking into account what the children had said about their grandparents, they could not be considered as persons with whom the children could be placed.
18. On 13 March 2008 the Administrative Court held an oral hearing in the case. The oldest children S. and I. were heard separately by the court and it met the youngest children, R., L. and B., in their respective foster homes.
19. On 28 March 2008 the Administrative Court confirmed the taking into public care and the placement of the children. Two of the children were placed in the same foster home. The court found that the taking into public care was needed due to the lack of parenting and the circumstances at home. The lack of care endangered seriously the health and development of the children. The aid provided in different forms by the social workers had proved to be insufficient. Taking the children into public care was in their best interest.
20. By letters dated 10 April and 6 May 2008 the applicant mother appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that an oral hearing be held. She claimed that the authorities had neglected to evaluate the role of the grandparents who were able and willing to take care of the children. The grandmother had previously worked in a children’s day-care centre. Also, her brother had promised to help her with the children.
21. On 16 April 2008 the emergency public care order was continued in the best interest of the children.
22. On 30 April 2008 the local social welfare authority requested the Local Registry Office (maistraatti, magistraten), in accordance with section 22 of the Child Welfare Act, to appoint the children a guardian. From the documents submitted by the applicants it appears that such a guardian was appointed.
23. On 23 June 2009 the Supreme Administrative Court rejected the request for an oral hearing as well as the appeal. Concerning the former, it found that the Administrative Court had already organised an oral hearing and that a new oral hearing was not needed to clarify the matter. As to the appeal, it found that the criteria for taking into public care had been fulfilled and that there was no reason to change the outcome reached by the Administrative Court.
Proceedings concerning the change of placement of the youngest child
24. On 22 June 2009 the child welfare authorities decided to change the placement of the youngest child. This decision was based on the fact that the former foster family was exhausted and could no longer continue to cope with the youngest child.
25. The applicant mother appealed against this decision to the Administrative Court, demanding that the child be placed with her. She also requested that an oral hearing be held. She referred, inter alia, to the Convention and demanded that the authorities actively work to reunite the family.
26. On 20 October 2009 the Administrative Court rejected the appeal. It found that it was not possible to place the child with his mother as he had no affectionate relationship with his mother. As the same difficulties as before still existed, it was not in the best interest of the child to place him with his mother. It was in his interest to be placed in another foster home which could provide him a model of normal family life.
27. By letter dated 11 November 2009 the applicant mother appealed against this decision to the Supreme Administrative Court.
28. On 14 June 2011 the Supreme Administrative Court rejected the applicant mother’s appeal, confirming the reasoning of the Administrative Court in its decision of 20 October 2009.
Proceedings relating to contact and visiting rights
29. The children have been able to meet each other only a couple of times during their placement. Since being taken into public care, they have been able to meet their mother only occasionally under supervision. There were no visits between February and May 2008.
30. On 11 February 2009 the child welfare authorities decided that none of the children could meet their mother or otherwise contact her at all during the period from 9 February to 31 May 2009. This decision was reasoned by the fact that forensic psychiatric examinations of the children were on-going and that they required the creation of stable and clear conditions. No meetings were held during the validity of the decisions. Letters or other mail or confidential messages sent by the children or addressed to them were withheld. The applicant mother appealed against these decisions to the Administrative Court.
31. On 8 and 19 May 2009 the Administrative Court rejected the applicant mother’s appeals against the decisions of 11 February 2009. It found that contact restrictions were necessary due to the on-going forensic psychiatric examinations of the children and were in their best interest.
32. On 16 June 2009 the child welfare authorities decided that, during the period from 9 June to 31 October 2009, three of the children, S., I. and L., could meet their mother every six weeks in the foster home for one and a half hours at a time in the presence of the foster parent. The meetings for the two other children, R. and B., were cancelled until 31 October 2009. The applicant mother appealed against these decisions to the Administrative Court.
33. On 15 October 2009 the child welfare authorities decided that, during the period from 5 October 2009 to 31 January 2010, the youngest child B. could meet his mother under supervision for one and a half hours at a time, every three weeks. The applicant mother appealed against this decision to the Administrative Court.
34. On 15 October 2009 the child welfare authorities also prohibited contact between B. and his grandparents until 31 January 2010.
35. On 20 October 2009 the Administrative Court decided the applicant mother’s appeal against the decisions of 16 June 2009. As concerned S., I. and L., the court quashed the decisions of 16 June 2009, finding that there had been no reasons to restrict contact of the applicant mother with S., I. and L. between 9 June and 31 October 2009. The court considered, however, that it had been in the best interest of the children to implement the visits under supervision. As concerned R., the court noted that he had repeatedly expressed his unwillingness to meet with the applicant mother. Given that R. was already 10 years old, his opinion had to be taken into account. R. had had severe symptoms and his behaviour had changed considerably after having met with his family members. It was thus in the best interest of R. to have the underlying reasons for his symptoms examined so that adequate therapy could be provided. Therefore, the contact restrictions were necessary until 31 October 2009. Finally, as concerned the youngest child B., the court noted that his excessively sexual behaviour called for forensic psychiatric examination. It was in his best interest to have the underlying reasons for his symptoms examined, and it was therefore necessary to keep his circumstances stable during the examinations. Interaction with his mother might have disturbed his physical and mental development and jeopardised the purpose of the foster care. Therefore, the court found that the contact restrictions applicable until 31 October 2009 had been necessary.
36. On 21 October 2009 the child welfare authorities decided to restrict the contact between the second youngest child L. and his mother until 28 February 2010 on the ground that contact would endanger his health, development and safety as well as the fulfilment of the purpose of the foster care. The applicant mother appealed against this decision to the Administrative Court.
37. On 26 October 2009 the child welfare authorities also prohibited contact between L. and his grandparents until 28 February 2010.
38. On 29 October 2009 the child welfare authorities decided to continue restricting the contact between R. and his mother between 29 October 2009 and 31 March 2010 on the same grounds as earlier and because R. himself opposed meetings. On the same date the child welfare authorities also prohibited contact between R. and his grandparents until 31 March 2010.
39. On 6 November 2009 the child welfare authorities ordered that meetings between S. and I. and their mother were to take place under supervision. This decision was valid from 6 November 2009 to 31 January 2010. On the same date the child welfare authorities also prohibited contact between S. and I. and their grandparents until 31 January 2010.
40. On 4 March 2010 the Administrative Court rejected the applicant mother’s appeals against the decisions of 15 and 21 October 2009.
41. On 6 August and 23 December 2010 the restrictions concerning the contacts between the applicant mother and L. were continued for the period of 2 July 2010 to 31 May 2011. An additional ground for this was that contact with the mother could endanger L.’s health because the meetings between them might cause psychological stress to L. and thus risk worsening his psychotic symptoms. The applicant mother apparently appealed only against the decision of 6 August 2010 to the Administrative Court which rejected her appeal on 31 December 2010. It is not known whether she appealed further against this decision.
42. On 27 May 2011 the restrictions on contact between the applicant mother and R. were further continued for the period from 23 March to 7 September 2011 due to R.’s child psychiatric examinations. During that period R. met with his mother on 18 April and 29 August 2011. The applicant mother appealed against this decision to the Administrative Court where it is apparently still pending.
43. On 14 June 2011 the Supreme Administrative Court rejected the applicant mother’s appeal against the decisions of the Administrative Court on 8 and 19 May 2009, 20 October 2009 and 4 March 2010. The court found restrictions imposed between 9 February and 31 May 2009 in respect of all the children justified. As concerned the visits between 9 June and 31 October 2009, the court noted that the dispute concerned only, as far as S., I. and L. were concerned, whether those meetings needed to be held under supervision. The court noted that, on 9 June 2009, the applicant mother had agreed on a visiting schedule, according to which she had met S. and I. in the foster home and L. in the foster family at approximately six week intervals. Visits had been supervised by the staff of the foster home or a foster parent. The applicant mother had also had the possibility to telephone S., I. and L., and they had had a possibility to make supervised telephone calls to the applicant mother. In addition, S. and I. could send her letters. The court thus found that there had been legitimate reasons to keep the visits supervised. As concerned R., the court found that the restrictions on contact had been legitimate as such restrictions had been necessary due to R.’s forensic psychiatric examinations. Taking into account R.’s age, his severe symptoms and the fact that he had repeatedly expressed his unwillingness to meet his mother, the restrictions on contact had been essential for his treatment. Finally, as concerned B., the court found that the restrictions on contact between B. and his mother had been essential for his treatment.
44. The supervised meetings between the applicant mother and S. and I. have been quite regular. Since 2010 there have also been regular supervised meetings with B. Since 11 February 2009 the applicant mother has apparently met R. five times and L. eight times under supervision. The last meeting with L. was on 9 January 2010. The oldest child D. has apparently only been able to meet his five younger siblings once since the emergency care order.
Criminal proceedings
45. On 17 July 2008 the social worker responsible for the children’s affairs requested the police to investigate whether the five minor children of the family had been sexually abused. Suspicion had been raised during the family work as some of the children had shown excessively sexual behaviour. Even after their placement, such behaviour had become more pronounced when the children had met with their mother or other relatives.
46. The criminal investigation concerning the alleged sexual abuse of the children was finalised in September 2010, and the case was transmitted to the public prosecutor.
47. On 21 April 2011 the public prosecutor brought charges against the grandmother and the grandfather for having assaulted the children. The prosecutor decided not to bring charges against the applicant mother for aggravated sexual abuse of the children.
Proceedings concerning termination of care
48. On an unspecified date the applicant mother requested the child welfare authorities to terminate the care or, alternatively, change the placement of L. and R. As concerned L., she stated in her application that L.’s psychological well-being had been deteriorating in the current foster family. Also the cooperation between her and the foster family had been complicated. As far as R. was concerned, the applicant mother stated in her application that the foster parent had isolated R. from his biological family and manipulated him.
49. On 7 March 2011 the Director of Social Services rejected the applicant mother’s application. She found in her decisions that the applicant mother’s situation had not changed and that the legitimate reasons for care continued to exist in relation to both L. and R. Terminating the care at this stage or changing their placement would not have been in the best interest of either of the children.
50. By letter dated 31 March 2011 the applicant mother appealed against these decisions to the Administrative Court where they are apparently still pending.
B. Relevant domestic law
51. Section 47 of the Child Welfare Act (lastensuojelulaki, barnskyddslagen, Act no. 417/2007) stipulates, as regards the duration and termination of care, as follows:
“Taking into care is valid indefinitely. When the need for care and substitute care under section 40 no longer exists, the municipal officeholder determined under section 13(1) must make a decision on terminating the care when the social worker responsible for the child’s affairs has prepared the case. Care must not be terminated even if the conditions for taking a child into care no longer exist if termination is manifestly not in the interests of the child in the manner referred to in subsection 3.
The social worker responsible for the child’s affairs must assess the conditions for continuing care when the client plan is reviewed, when a child or custodian applies for termination of care or when it otherwise proves necessary.
When a child’s interests are being considered in a case concerning termination of care, in addition to what is said in section 4(2), the following must be taken into account: the duration of substitute care, the quality of the affection between the child and the party providing substitute care, interaction between the child and the parents and the child’s views.
Care is terminated when the child concerned reaches 18 years of age.”
52. According to section 62 of the Act, the rights of children in substitute care to keep in contact with their parents or other persons close to them may be restricted by a decision if it has not been possible to reach agreement on contact and if:
“1) the contact endangers the purpose of a child’s substitute care and the restriction is necessary for the child’s care and upbringing; or
2) the contact endangers a child’s life, health, development or safety; or
3) the restriction is necessary because of the safety of the parents or other children in the family or the family care home or other children or personnel in an institution; or
4) a child of 12 years of age or more opposes contact; the same applies to children under 12 years of age if they are sufficiently developed for their views to be taken into account.”
It is possible 1) to restrict children’s rights to meet their parents or other people close to them; 2) to restrict children’s rights to keep in contact with persons close to them by telephone or using other devices or means of contact; 3) to read and withhold private letters sent by children or addressed to them or other similar confidential messages or inspect and withhold some other delivery; and 4) for the place of substitute care to confiscate for the duration of the restriction all communication means or equipment held by the children concerned or restrict their use. Restriction of contact can only be applied to the extent necessary in each individual case to achieve the purpose laid down in law.
53. According to section 63 of the Act,
“A decision must be made concerning restrictions on contact referred to above in section 62 which must be issued for a fixed term and last for a maximum of one year at a time. The decision must include the reason for the restriction, the persons restricted, the kind of contact the restriction concerns and to what extent the restriction is enforced.
Decisions on restricting contact are made by the officeholder ... Restrictions on contact must be lifted as soon as they are no longer necessary in the manner referred to in section 62.”
COMPLAINTS
54. The applicants complained under Article 8 of the Convention about the taking into emergency care and the placement of the children, the restrictions on visiting rights and the failure to reunite the family. One of the children had experienced a sense of strong alienation from his biological mother and siblings because of the foster parent.
The applicant mother complained under Article 14 that she had been discriminated against due to her poor health.
The applicant children complained under Article 6 of the Convention that they had not been heard, nor had their opinion been sought, when deciding on the taking into public care and their placement. Moreover, the applicant mother complained under the same Article that she had not had a fair trial as the Supreme Administrative Court had not organised an oral hearing in the case.
Finally, all the applicants complained under Articles 6 and 13 of the Convention that the proceedings had taken too long.
THE LAW
A. Alleged violation of Article 8 of the Convention
55. The applicants complained under Article 8 of the Convention about the taking into emergency care and the placement of the five minor children, the restrictions on visiting rights and the failure to reunite the family.
56. 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.”
57. The Government pointed out that the applicant mother had lodged her application not only in her own name but also in the name of her five minor children. However, each child had been appointed a guardian in accordance with section 22 of the Child Welfare Act. According to the domestic law, a guardian had the competency, in place of the parent holding custody rights, to act on the child’s behalf in all matters concerning child welfare and child protection. The parent could only act on the child’s behalf in matters that did not concern those matters but, for instance, the child’s name, nationality or religion. As the application concerned child welfare and child protection, it appeared that the applicant mother could not represent her five minor children before the Court but could only pursue the application on her own behalf. Accordingly, the Court should declare the application inadmissible in so far as it had been introduced by the applicant mother on behalf of her minor children S., I., L., R. and B.
58. Alternatively, the Government argued that the applicant children had not exhausted the domestic remedies as none of the domestic remedies had been exhausted in their name or on their behalf. At any rate, the applicant children S., I. and L. no longer had victim status because the decisions of 20 October 2009 by the Administrative Court and of 14 June 2011 by the Supreme Administrative Court had been favourable to them as far as the contact restrictions were concerned. Nor could D. claim to be a victim of a violation of the Convention. In any event, D. had also failed to exhaust the domestic remedies.
59. As to the merits of the case, the Government agreed that there had been an interference with the applicant mother’s right to respect for family life but that the interference had a basis in Finnish law, and it pursued the legitimate aim of protection of health and morals and the rights and freedoms of the children. The interference had also been “necessary in a democratic society”. The taking into emergency care had been necessary as other measures had proved to be insufficient to ensure the children’s security and integrity. The family workers could no longer cope with the family due to the children’s severe symptoms and outside disturbances. In order to find the best solutions, the situation was discussed with the family several times before the taking into public care took place. The evaluation made by the private firm was not binding and did not have any decisive role in the decision-making which was mainly based on reports drawn up by the social welfare authorities. On 28 March 2008 the Administrative Court found that the public care order was needed due to the lack of parenting and the circumstances at home. The lack of care seriously endangered the health and development of the children. The aid provided in different forms by the social workers had proved to be insufficient and therefore taking the children into public care had been in their best interest.
60. As to the placement of the children, the Government noted that the decision to place the children, except for the two eldest, in separate foster homes was based on the need to secure for them a relationship of trust with at least one adult and to restore their feeling of security. This was felt to be more important than keeping the siblings together. The children could not be placed with their grandparents as the children feared them and the conditions in their home were unsuitable due to alcohol abuse, domestic violence and unequal treatment of the children.
61. Concerning the contact restrictions, the Government noted that these were necessary until October 2009 in order to create as stable and clear conditions as possible for the children’s forensic psychiatric examination. Even after that, some restrictions were necessary due to the children’s mental condition and the effects the visits had on them. The social welfare authorities had worked continuously to enable regular, supervised meetings between the applicant mother and S., I. and B. Such meetings with R. and L. would, however, not serve their interests. None of the children had been willing to meet their grandparents or their older brother D. The Government considered that the contact restrictions and the supervised meetings had been justified.
62. As to reuniting the family, the Government noted that the family’s situation was constantly monitored and reassessed by the social welfare authorities with a view to reunion. However, so far there had been no grounds for reunion as the applicant mother’s situation had not changed. The social welfare authorities had acted in an appropriate manner and in the best interests of the children.
63. The applicants disagreed with the Government’s preliminary objections. They pointed out that the locus standi rules of the Court were not necessarily the same as the national criteria. According to the Court’s case-law, the standing as a natural mother sufficed to afford her the necessary power to apply to the Court on the child’s behalf to protect his or her interests even if the natural mother had been deprived of parental rights. In the present case the appointed guardian had not acted in the best interest of the children, nor acted in accordance with the Convention and tried to reunite the family. The guardian had only supported the social worker’s decisions. As to the exhaustion of domestic remedies, the applicant mother claimed that she had used all domestic remedies available in respect of all her minor children. The applicants also contested the Government’s argument about the lack of victim status.
64. As far as the merits of the case were concerned, the applicant mother argued that there had been a severe interference with her family life. The taking into public care of the children would not have been necessary had the family received proper and sufficient help from the child welfare authorities. The family workers had changed all the time and they had had no training for that kind of work. As no replacements had been found for their holiday period, the children had been placed in substitute homes without the applicant mother having a possibility to refuse this. The child welfare authorities had started to prepare the taking into emergency care without discussing it with the family. Nor had they drafted any care plan for the children. They had also delegated the evaluation of the family to a private firm which had not been capable of properly evaluating their situation. When the emergency care order was executed on 14 December 2007, there was no imminent danger at home.
65. Concerning the contact restrictions, the applicant mother maintained that the five children were allowed only a few short and supervised meetings with her and their older brother. There were no reasons to restrict contact as there was no danger at home. The meetings would also have been easy to arrange. The first decisions concerning visiting rights had been made only on 11 February 2009, meaning that all contact restrictions before that date had been illegal. R. and L. had been totally alienated from their mother and they had suffered severe psychological damage. By failing to arrange meetings the authorities had not maintained any prospect of reuniting the family. As to the reunion, the applicant mother claimed that there had been no initiatives by the social welfare authorities to consider family reunion. In respect of R. the authorities had explicitly stated that he would remain in public care until his 18th birthday and the same was planned for the other children.
66. The Court notes first of all that the applicants’ complaints under Article 8 of the Convention were communicated to the Government only as far as the applicant mother and her five minor children were concerned. No complaint was communicated in respect of D.
67. As to the locus standi of the applicant mother to represent her minor children, the Court observes that the conditions governing individual applications are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 of the Convention and, whilst those purposes may sometimes be analogous, they need not always be so (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 139, ECHR 2000-VIII).
68. The Court points out that, in principle, a person who is not entitled under domestic law to represent another person may nevertheless, in certain circumstances, act before the Court in the name of the other person (see, mutatis mutandis, Nielsen v. Denmark, 28 November 1988, §§ 56-57, Series A no. 144). In particular, minors can apply to the Court even, or indeed especially, if they are represented by a mother who is in conflict with the authorities and criticises their decisions and conduct as not being consistent with the rights guaranteed by the Convention. The Court considers that in the event of a conflict over a minor’s interests between a natural parent and the person appointed by the authorities to act as the child’s guardian, there is a danger that some of those interests will never be brought to the Court’s attention and that the minor will be deprived of effective protection of his rights under the Convention. Consequently, even though the mother has been deprived of parental rights – indeed that is one of the causes of the dispute which she has referred to the Court – her standing as the natural mother suffices to afford her the necessary power to apply to the Court on the children’s behalf, too, in order to protect their interests (see Scozzari and Giunta v. Italy [GC], cited above, § 138). Therefore, the Court accordingly concludes that the Government’s preliminary objection must be dismissed as regards the locus standi of the applicant mother to represent her five minor children.
69. The Court notes that the Government also argued that the applicant children had not exhausted the domestic remedies as none of the domestic remedies had been exhausted in their name or on their behalf. In this respect the Court refers to the above reasoning and considers that even though the applicant mother technically acted in her own name only, her appeals were of such kind that they necessarily also involved the minor applicant children’s interests. This Government’s preliminary objection must thus also be dismissed.
70. The Court reiterates that mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, inter alia, Johansen v. Norway, 7 August 1996, § 52, Reports of Judgments and Decisions 1996‑III). Any such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 and can be regarded as “necessary in a democratic society”.
71. In determining whether the impugned measures were “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify these measures were relevant and sufficient for the purpose of paragraph 2 of Article 8 (see, inter alia, Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130).
72. It must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned (see Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250). It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, for instance, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A; and Johansen v. Norway, cited above, § 64).
73. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake. While the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care, in particular where an emergency situation arises, the Court must still be satisfied in the particular case that there existed circumstances justifying the removal of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to taking the child into public care, was carried out prior to implementation of such a measure (see K. and T. v. Finland [GC], no. 25702/94, § 166, ECHR 2001‑VII; and Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I).
74. Following any removal into care, a stricter scrutiny is called for in respect of any further limitations by the authorities, for example on parental contact rights, as such further restrictions entail the danger that the family relations between the parents and a young child are effectively curtailed (see Johansen v. Norway, cited above, § 64; and Kutzner v. Germany, cited above, § 67). The taking into care of a child should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit, and any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and child (see Olsson v. Sweden (no. 1), cited above, § 81; Johansen v. Norway, cited above, § 78; and E.P. v. Italy, no. 31127/96, § 69, 16 November 1999). In this regard a fair balance has to be struck between the interests of the child remaining in care and those of the parent in being reunited with the child (see Olsson v. Sweden (no. 2), cited above, § 90; and Hokkanen v. Finland, cited above, § 55). In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child which, depending on their nature and seriousness, may override those of the parent (see Johansen v. Norway, cited above, § 78).
75. As regards the extreme step of severing all parental links with a child, the Court has taken the view that such a measure would cut a child from its roots and could only be justified in exceptional circumstances or by the overriding requirement of the child’s best interests (see Johansen v. Norway, cited above, § 84; and Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX). That approach, however, may not apply in all contexts, depending on the nature of the parent-child relationship (see Söderbäck v. Sweden, 28 October 1998, §§ 31-34, Reports 1998‑VII, where the severance of links between a child and father, who had never had care and custody of the child, was found to fall within the margin of appreciation of the courts which had made the assessment of the child’s best interests).
76. The Court further reiterates that, whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by that Article:
“[W]hat ... has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8.” (see W. v. the United Kingdom, 8 July 1987, §§ 62 and 64, Series A no. 121)
77. Turning to the present case, it is common ground that the placement of the applicant mother’s five minor children in public care interfered with their right to respect for their family life. The Court finds no indication that the taking into public care of the five minor children on 14 December 2007 and their placement in various foster families was not based on the Child Welfare Act. The measures were also clearly aimed at protecting the health and rights of the minor children and to serve their best interest.
78. As to whether the taking into public care was “necessary in a democratic society”, the Court agrees with the Government that the competent authorities were entitled to conclude that the measure was necessary in the circumstances of the case. The main reason for taking the five children into public care was the lack of parenting and the circumstances at home. The Court notes that other, less drastic, measures which had been in place for about a year before the taking into public care, had proved to be insufficient even though the assistance provided had been considerable. The situation was not tenable and the family workers could no longer cope with it. The Court does not have any reason to doubt either that the placement of the children in several foster homes was not in their best interest.
79. The Court does not find it conceivable that the situation in the family and the possibility of taking the children into emergency public care was not discussed with the family before the taking into emergency public care actually took place. The applicant mother was involved in the decision‑making process, seen as a whole, to a degree sufficient to provide her with the requisite protection of her interests. Nor does the Court find it problematic that one of the family evaluations was made by a private firm as the decision-making was mainly based on reports drawn up by the social welfare authorities. Nor were the care orders implemented in a harsh or exceptional way.
80. As far as the contact restrictions are concerned, the Court notes first of all that it is not able to examine any of the contact restrictions which took place or became final before 10 June 2009. As the applicants’ application was lodged with the Court on 10 December 2009, the restrictions taking place or becoming final before 10 June 2009 fall outside the six-month time-limit. Moreover, it appears that many of the decisions by the child welfare authorities to restrict contact were not appealed against or that if such an appeal was lodged, the domestic proceedings are still pending. The applicants have thus in this respect either failed to exhaust the domestic remedies available to them or their complaints are premature.
81. The Court notes that only the decisions of 11 February 2009, 16 June 2009, 15 and 21 October 2009 by the child welfare authorities were appealed against and have become final. These decisions were upheld by the Administrative Court on 8 and 19 May 2009, 20 October 2009 and 4 March 2010. However, as far as S., I. and L. were concerned, the Administrative Court quashed on 20 October 2009 the decisions of 16 June 2009, finding that there had been no reasons to restrict their contact with their mother. However, as concerned R. and B., the appeals were rejected. The court found that both R. and B.’s behaviour had called for further examinations and it had been in their best interest to keep their circumstances stable during those examinations. R. had also repeatedly expressed his unwillingness to meet with the applicant mother and as he was already 10 years old at the time, his opinion had to be taken into account. All the Administrative Court’s decisions were upheld by the Supreme Administrative Court on 14 June 2011.
82. The Court finds the restrictions imposed on 11 February 2009 justified due to the need to secure for all the children stable conditions for the conducting of forensic psychiatric examinations. As concerns S., I. and L., the Court agrees with the Government that the decisions of 20 October 2009 by the Administrative Court and 14 June 2011 by the Supreme Administrative Court were favourable to them even though the visits still remained supervised. As concerns the two other children, R. and B., the Court notes that the applicant mother could not meet them at all until 31 October 2009 due to the ongoing medical examinations. However, the Court accepts the assessment by the domestic courts which found these restrictions to be reasonable and in the best interest of R. and B. as these restrictions could reasonably be regarded as justified by the need to conduct further medical examinations. Moreover, after this period B. was able to meet his mother under supervision for one and a half hours at a time, every three weeks. Also some meetings between R. and his mother took place later in spite of his unwillingness to meet his mother.
83. As concerns the possible reunion of the family, the Court notes that the applicant mother requested the child welfare authorities on two separate occasions, in October 2009 and in March 2011, to terminate the care in respect of R., L. and B. but without success. These requests were refused as the applicant mother’s situation had not changed and terminating the care at that stage was not in the best interest of the children. The Court notes that the decisions concerning R. and L. are still pending before the domestic authorities (see above paragraphs 49-50). In any event, the Court considers that when examining these requests the domestic authorities gave relevant consideration to the applicants’ circumstances as well as to the ultimate aim of family reunion. Nothing suggests that this was not the standard policy of the domestic authorities.
84. In conclusion, the Court is persuaded that the social welfare authorities and the administrative courts acted in the best interest of the children, struck a proper balance between the competing interests and did not overstep their margin of appreciation in ordering and implementing the necessary measures. The Court finds therefore that the taking of the applicant children into public care, their placement, the contact restrictions and refusal of family reunion were based on reasons which were not only relevant but also sufficient for the purposes of Article 8 § 2 of the Convention and that the decision-making process satisfied the requirements of that provision. Accordingly, this part of the application must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. Remainder of the application
85. The applicant children also complained under Article 6 of the Convention that they had not been heard, nor had their opinion been sought, when deciding on the taking into public care and their placement. Moreover, the applicant mother complained under the same Article that she did not have a fair trial as the Supreme Administrative Court had not organised an oral hearing in the case. All the applicants complained under Articles 6 and 13 of the Convention that the proceedings had taken too long. Finally, the applicant mother complained under Article 14 of the Convention that she had been discriminated against due to her poor health.
86. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, also this part of the application must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Fatoş AracıIneta Ziemele
Deputy RegistrarPresident
Full & Egal Universal Law Academy