EUROPEAN
COURT OF HUMAN RIGHTS
Hudoc reference REF00002663 Document type Judgment (Merits and
just satisfaction) Title CASE OF K. AND T. v.
CASE OF K. AND
T. v.
(Application no. 25702/94)
JUDGMENT
This judgment may be subject to editorial revision.
|
NCHR's Comments On The verdict in
the Grand Chamber Hearing has now been delivered. The K & T:s legal
representative in the procedures at the European Court, Anu Suomela of the
PESUE (PESUE is the Finnish Family Rights Organisation and also
sister-organisation to the NCHR) held a lecture on the Grand Chamber Hearing
at the NCHR's symposium that took place in Gothenburg on May 19, 2001. |
In the case of
K. and T. v.
The European Court
of Human Rights, sitting as a Grand Chamber composed of the following judges:
Mr L. Wildhaber, President,
Mrs E. Palm,
Mr C.L. Rozakis,
Mr G. Ress.
Mr J.-P. Costa,
Mr Gaukur Jörundsson,
Mr G. Bonello,
Mr W. Fuhrmann,
Mr K. Jungwiert,
Sir Nicolas Bratza,
Mr B. Zupancic,
Mr M. Pellonpää,
Mrs M. Tsatsa-Nikolovska,
Mr T. Pantîru,
Mr R. Maruste,
Mr K. Traja
Mr A. Kovler,
and also of Mr P. J. Mahoney, Registrar,
Having deliberated
in private on 14 March and
Delivers the
following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case
originated in an application (no. 25702/94) against the
2. The applicants,
who had been granted legal aid, were represented by Mr J. Kortteinen and Mr S.
Heikinheimo, both lawyers practising in
3. The applicants
alleged originally that the facts of the case disclosed a breach by the respondent
State of its obligations under Articles 5, 6 § 3 (c), 8, 10 and 12 taken either
alone or together with Article 13 of the Convention.
4. The application
was transmitted to the Court on
5. The application
was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of
Court). The President of the Fourth Section decided, on 11 May 1999, in
accordance with Rule 33 §§ 3 and 4 and Rule 47 § 3 of the Rules of Court, that
none of the documents in the case file should be accessible to the public and
that the identity of the applicants should not be disclosed. On 8 June 1999,
following a hearing in camera on its admissibility and merits (Rule 54 § 4), it
was declared partly admissible (Articles 8 and 13 of the Convention) by a
Chamber of that Section ("the Chamber"), composed of the following
judges: Mr G. Ress, President, Mr M. Pellonpää, Mr I. Cabral Barreto, Mr
V. Butkevych, Mrs N. Vajic, Mr J. Hedigan, Mrs S. Botoucharova, and of Mr V.
Berger, Section Registrar.
6. On
7. On
8. The composition
of the Grand Chamber was determined according to the provisions of Article 27
§§ 2 and 3 of the Convention and Rule 24. The President of the Grand Chamber
decided, on
9. The applicants submitted
their comments on the Government's request for referral on
10. A hearing
before the Grand Chamber took place in public in the Human Rights Building,
Strasbourg, on 14 March 2001 (Rule 59 § 2).
There appeared
before the Court:
(a) for the
Government
Mr H. Rotkirch, Ministry for Foreign Affairs,
Mr A. Kosonen, Ministry for Foreign Affairs, Agents,
Ms P.-L. Heiliö,
Ms A. Aho-Eagling,
Mr J. Piha, Advisers;
(b) for the
applicants
Mr J. Kortteinen, Counsel,
Ms A. Suomela, Adviser.
The Court heard
addresses by Mr Rotkirch, Mr Kortteinen, Mr Kosonen and Mr Piha, and also their
replies to questions from its individual members.
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
A. Fluctuations
in the state of the first applicant's mental health up to 1993
11. At the
beginning of the events relevant to the application, K. had a daughter, P., and
a son, M., born in 1986 and 1988 respectively. P.'s father is X. and M.'s
father is V. From March to May 1989 K. was voluntarily hospitalised for about
three months, having been diagnosed as suffering from schizophrenia. From
August to November 1989 and from December 1989 to March 1990, she was again
hospitalised for periods of about three months on account of this illness. In
1991 she was hospitalised for less than a week, diagnosed as suffering from an
atypical and undefinable psychosis. It appears that social welfare and health
authorities have been in contact with the family since 1989.
12. The applicants
initially cohabited from the summer of 1991 to July 1993. In 1991 both P. and
M. were living with them. From 1991 to 1993 K. and X. were involved in a
custody and access dispute concerning P. In May 1992 a residence order was made
transferring custody of P. to X.
13. K. was again
hospitalised from 22 April to
14. On
On
15. Allegedly, X.
did not allow K., P. and M. to meet. On 11 May 1993, when K. was again
pregnant, her access to P. was further limited by an order of the District
Court of R. Basing itself on a doctor's opinion, the Court held that the
child's mental development would be endangered if the meetings between P. and
K. continued without supervision as had been ordered in 1992.
B. Voluntary placement of M. in a children's home
16. According to
the records of the social welfare authorities, M. showed signs of behavioural
problems. On
Notes of the social
authorities of 24 and
17. According to
the records of the social welfare authorities, a discussion between K., her
mother, T. and a number of social and mental-health care officials took place
on 31 March 1993, during which it was mentioned that the authorities might have
to intervene in M.'s upbringing, from the child-protection point of view, in a
more drastic way than had been the case so far. It appeared that in connection
with K.'s recent hospitalisation T. had "forcibly" taken her from a
restaurant, which had made K. furious, with the consequence that she had thrown
things around; for example, the microwave oven had ended up on the floor. T.
had said that K. was unable to control herself.
18. On the
following day the child welfare support group, consisting of various social and
health authorities, concluded that the aim was to place M. in the children's
home for three months as an assistance measure of open care under Section 14 of
the 1983 Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983;
"the 1983 Act"), during which period psychological examinations of M.
would be carried out.
19. On
20. In an opinion
requested by the Social Welfare Board, doctors M.L. and K.R., on
21. On 7 June 1993
it was reported by the social welfare authorities that when K. and T. had come
to the children's home where M. was staying, the boy had undergone a total
change in his behaviour, characterised by anger, hate, swearing etc. At the
children's home T. had said that he was really tired of the situation and that
in his view K. was in need of hospitalisation. When a visit to the health
centre had been suggested to her, she had become very angry.
According to a
statement dated
C. Emergency care orders
22. On
23. On
24. J. was
immediately placed in emergency care pursuant to Section 18 of the 1983 Act.
After the birth of their child, K. and T. were informed of the decision by two
social workers at the
25. On
26. The applicants
did not appeal against the emergency care orders.
D. Implementation of the emergency care orders
27. On 21 June 1993
the Social Welfare Board took note of the emergency care orders and prohibited
all unsupervised access between K. on the one hand, and J. and M. on the other.
The number of supervised visits, however, was not restricted. The Board decided
to continue preparations for taking M. and J. into care.
28. At the family
centre a meeting was held by social welfare workers, on
29. K. was asked to
appear with T. at the social welfare office on
30. On
31. On
E. Normal care orders
32. At the
beginning of July 1993 T. left the applicants' home, having been told by the
social welfare officials that he had to break off his relationship with K.
"if he wanted to keep" J. The applicants nevertheless continued their
relationship.
33. On 15 July 1993
the Social Welfare Board gave its decisions taking J. and M. into
"normal" public care, invoking reasons similar to those mentioned in
the emergency care orders (see § 24 above), and prolonged the access
restriction until 15 September 1993. K. was allowed to see the children only in
the company of her personal nurse. The Board essentially considered that K.'s state
of health remained unstable; that she was suffering from aggressive and
uncontrolled emotional moods; and that the public care proceedings were a
mentally strenuous ordeal for a patient. As regards J., the Board therefore
believed that her personal security could be jeopardised if access were to take
place without supervision. As regards M., the Board feared that K.'s visits to
the children's home "could no longer be controlled by its staff, which
would not be in his interest". Before the decisions of
34. On
35. On
36. On
37. During the
period between 18 June and
38. According to a
statement made by a social welfare worker on
39. On
40. T.'s travel
expenses to the centre were paid for by the social welfare authorities. From
the centre's records it can be deduced that T. succeeded in creating a
relationship with the baby and learned to take good care of her. The home
leaves were spent with T. first at his mother's house and later in his new
home.
F. Appeal proceedings against the care orders
41. On
42. On 9 September
1993 the County Administrative Court confirmed the care order concerning J.,
considering that K. had been mentally ill; that the applicants had had
conflicts "as a result of which T. had moved away from their home in the
beginning of July 1993"; that because of K.'s illness and the family's
other problems the applicants had been unable to provide adequate care to J.;
that the care support provided to the family had not sufficiently improved the
family's situation and that the measures could not be expected to satisfy J.'s
care needs. No hearing was held.
43. On
44. In an appeal to
the
45. On
46. On
G. Implementation of normal care
47. By a decision
of
H. Access to the children during their stay at their respective children's
homes
48. In the
meantime, on
49. A consultation
was held at the children's home, on
50. On
51. The following
notes of a social welfare official appear among those in the case records of
the Social Welfare Board:
"
2 ... In addition,
the importance of future access between J. and T. has now been questioned,
since J.'s placement in [public foster care] is under preparation. It will be
difficult for T. to give J. up, ...
K. ... states that
she is considering moving [back] together [with T.] when she is discharged from
the hospital on 29 October. ...[Her] wish is for M. and J. to be placed in the
same [foster] family. ...
... T. agrees to
J.'s placement in a [foster] family. ...
... T. is slightly
opposed to J.'s placement in a [foster] family. ... It is again explained [to
him] why J. cannot live with him as long as [the applicants] continue their
relationship. ...
... The essential
issue from J.'s point of view is [the applicants'] relationship; if [it]
continues, J. cannot stay at home with T. ... The alternatives are: J. comes
back home to T. or is placed in [foster care]. ... [He] can provide the basic
care and upbringing alone provided he receives certain support. ...
... Access between
M. and K. has been successful now that T. has been attending [the visits].
..."
... The father has
been responsible for the care of the institutionalised child. He has been
active and acted on his own initiative. He has fed, clothed and bathed the
child. He has also taken care of the child's outings and of rocking the baby to
sleep. The father has treated the child naturally and with consideration; he
has talked a lot to the child and showed her tender emotions. He has enjoyed
his time with the child on the child's terms. The father has treated the child
patiently and with warmth, taking into consideration the needs of the child.
The mother has
visited the child five times and stayed only for a moment each time.
... J. has had the
advantage of regular interrelation with one person taking care of her, i.e.
with her father. A safe relationship with the father has given the child a
feeling of basic safety, which acts as a basis for positive development of her
emotional life. J. has the necessary resources to grow up and to develop in
order to be a healthy and well-balanced child. Taking into consideration the
circumstances, the foundation for the family placement is good."
I. First care plan
52. On
53. On
54. After the
adoption of the care plan on
55. On
56. On
J. Access restrictions of
57. On
58. On
59. In a written
expert opinion, requested by the Social Welfare Board and submitted to the
County Administrative Court, Dr E.V., a child psychiatrist, expressed the
opinion that the children should be permanently cared for by the foster parents
and that the applicants' visits should, for the time being, be discontinued so
as to protect the children and the foster parents. According to the applicants,
Dr E.V. had not met any of the applicants or children, nor had he consulted the
other psychiatrists before making his proposal.
60. On
"... [By
allowing] access to take place once a month and [by allowing contact through
correspondence] it will be ensured that the children will retain knowledge
about their biological parents. If the grounds for the public care later cease
to exist, a reunification of the family will thus be possible. ..."
61. The
K. The applicants' request for discontinuation of public care
62. On
63. On
64. In an opinion
of
65. The Public
Legal Adviser advised against requesting revocation of the care orders.
66. K. was
hospitalised from 15 to 24 February and from 11 April to
67. On
"At the moment
the health of the children's mother, K., is better and the family situation has
changed in other respects in comparison with the situation in 1993 when the
decisions to take the children into care were made.
...
According to Dr
K.P., a specialist in psychiatry, K. still has 'a lot of instability' in her
emotional life as well as fragility, brought by the last five years'
experiences and the diagnosis of mental illness for which she needs - and will
need for a long time to come - therapeutic support and treatment. A regular
medication is also needed in order to guarantee her continued well-being and to
make it possible for her to manage in open care and to have custody of her
children. Dr K.P., however, did not give her more precise opinion as to K.'s
ability to take care of and bring up her children even though Dr K.P. was
explicitly asked to give such an opinion.
K. can have custody
of her children. She cannot, however, be responsible for the needs and
education of the children - not even with the support of T. and the open care
support measures. Their ability to act as educators taking care of the
children's needs is inadequate.
According to the
statement given by the children's clinic of the
68. The applicants
appealed on
69. On
70. On
71. On
72. On
L. Revisions of the care plan and relevant appeals
(i) First
revision
73. On 17 November
1994 social welfare officials revised the public care plan, proposing that the
children meet the applicants once a month on neutral premises at the Family
Advice Centre of K., where the foster parents were living. The applicants
objected to this proposal, considering that it would have entailed a further
restriction of their access to the children. Instead they requested two
meetings a month, one of which was to be at their place of residence. On
74. In a letter of
75. In his decision
of
76. As regards the
applicants' appeal against the Social Welfare Board's decisions of 31 January
1995 and 28 February 1995, the County Administrative Court considered, on 15
June 1995, that the revised care plan drawn up on 17 November 1994 had already
entailed an access restriction which had later been renewed by further
decisions, without the applicants having been properly heard, in respect of
their access request. The matter was referred back to the Social Welfare Board
for further consideration.
77. In the light of
the
78. On
(ii) Second
revision
79. On
80. On
"The right of
access of M. and J. to the persons close to them must primarily be examined in
the light of their psychological growth and development and health. This point
of view requires an examination of the quality, permanence and durability of
their human relationships, because psychological growth and development take
place in interaction with human relationships. In my opinion the human
relationships are to be examined from the children's point of view. ...
... In conclusion I
note that before M. was placed in the children's home ... the mother had been
in psychiatric hospital treatment 8 times, in total some 13 months. Thus M. had
lived with his mother for 45 months, i.e. 3 years 9 months. The longest that they
spent together was 2 years 1 month. ... T. has, as "stepfather",
helped to look after M. for at most 10 months. ... foster parents have so far
looked after M. for 3 years 3 months without interruption. ... In practice M.
has not had any kind of relationship with his biological father ... .
In the light of the
above facts, I note that the human relationships in the early childhood of M.
have, owing to the circumstances, been non-continuous, short-term and changing.
The most stable and continuous relationships have been with the foster parents
... . Therefore, these relationships are the most relevant and important ones
for M.'s psychological growth and development.
... J. was born in
June 1993. She was taken into public care immediately after she was born. At
first she stayed in the
In the light of
this, I note that, due to the circumstances, J. has not had any significant and
important relationships other than those with her foster parents. The
relationship of J. with the foster parents is of primary importance for her
psychological growth and development. ...
...From the
children's point of view, especially, but naturally also from that of the
foster parents, the foster family is a family to which the principles
concerning family life enshrined in the United Nations Convention on the Rights
of the Child and in the European Convention for the Protection of Human Rights
and Fundamental Freedoms can be applied in the same way as to biological
families. This point of view is especially important when, through the force of
circumstances, the biological family has not lived together.
In the light of the
above facts, I note that the arrangements for helping and supporting the foster
parents of M. and J. are in the best interest of the children. The arrangement
will, in the first place, ensure the important, continuous and safe human
relationships of M. and J. with the foster parents...
It is also
important for the psychological growth and development of M. and J. that, in
the safe and stable conditions provided by the foster family, they are able to
maintain and create a good internalised picture of their biological parents ...
from whom they have been separated because of the circumstances.
In my opinion this
can be done by complying with the decision of
81. In a statement
of
(iii) Third
revision
82. On
83. On 12 June 1997
the County Administrative Court rejected the applicants' appeal against the
Social Welfare Board's decision of 20 August 1996 to restrict the applicants'
access right (see § 80 above). The
84. Although the
applicants had stated only in their rejoinder that the appeal was also made on
behalf of R., the County Administrative Court found in its decision that it was
in part made in her name. The court stated that a person to whom a decision was
directed, or upon whose right, duty or interest it had a direct effect, had the
right of appeal. The court considered that the Board's decision, which
concerned R.'s siblings' and parents' right of access, was not such a decision.
85. On 28 November
1997, the Social Director restricted the applicants', and consequently their
youngest child R.'s, access to J. and M. to one monthly visit of three hours on
the premises of a school at the children's place of residence until the end of
1998. The applicants did not appeal.
(iv) Fourth
revision
86. The care plan
was again revised on
87. According to a
statement made on
88. The restriction
orders were extended by the Social Director, on
89. According to
the reports written by the supervisor who attended the meetings of the children
and the applicants during the period from
M. Further decisions given after the delivery of the Chamber judgment
90. M. visited K.
and T. at their home for the weekend of 21 to 23 July 2000 without supervision.
91. The applicants
appealed against the Social Welfare Board's decision of
92. The social
authorities reviewed the care plan on
93. The foster
mother of J. and M. died in May 2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The
principles of the Child Custody and Right of Access Act and the Child Welfare
Act
94. 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 person
having custody.
95. The Child
Custody and Right of Access Act requires both the parents and the authorities
to ascertain the wishes and views of the child when making and implementing 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 and 46.2). Court decisions concerning custody and
access cannot be executed against the will of a child who has attained the age
of 12.
96. Also according
to the Child Welfare Act (as amended by Act 139/1990), a child who has
attained the age of 12 is given an independent right to be heard in most
important child welfare decisions related to his or her person and to appeal
against them.
97. In situations
where the child does not live with its parents or where they are separated
because of the need for protection or some other pertinent reason, the child
has in principle the right to maintain 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).
98. According to
Section 1 of the Child Welfare Act, a child is entitled to a secure and
stimulating growth environment and 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
99. Where the
parents or those who have custody of the child are not able to provide the
child with sufficiently secure conditions for its growth and development, the
Social Welfare Board and its officers must 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.
100. According to
Section 13.1 of the Child Welfare Act (as amended by Act 139/1990), 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 recipient of social
welfare assistance 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.
101. 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. These include the lay helper or supporting family;
appropriate therapy; holiday and recreational activities; and assisting 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 must be provided in co-operation with the child
or young person and the parents or other persons caring for him or her.
C. Taking a child into care and substitute care
102. According to
Section 16 of the Child Welfare Act, the Social Welfare Board must take a child
into care and provide substitute care for him or her if (a) the 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, (b) the measures of assistance in open
care are not appropriate or have proved to be inadequate; and (c) substitute
care is considered to be in the best interests of the child.
103. If a child is
in imminent danger for a reason stated in Section 16 or is otherwise in need of
an urgent care order and substitute care, the Social Welfare Board may take him
or her into care without submitting the decision to the
104. According to
Section 9.2 of the Child Welfare Act, substitute care must be provided without
delay where it is needed and is in the best interests of the child.
105. An emergency
care order expires within 14 days of the decision unless a normal Section 17
care order is applied for during that period. Such a care order must be made
within 30 days, or on special grounds within 60 days of the emergency order. A
decision on emergency care can be appealed in the normal way.
106. Taking into
care differs from adoption that as the parents are able to keep limited rights
and responsibilities regarding custody and guardianship.
D. The duration and termination of care
107. Care in
accordance with Section 16 of the Child Welfare Act terminates when the child
attains the age of 18 or marries. Public care may be terminated earlier where
the preconditions for the termination of care exist.
108. According to
Section 20 of the Child Welfare Act, the Social Welfare Board must discharge a
child from care when there is no longer any need for the care or substitute
placement referred to in Section 16, unless such discharge is clearly contrary
to the best interests of the child.
E. The competence of the Social Welfare Board
109. On the custody
of a child in care Section 19.1 of the Child Welfare Act stipulates:
"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
persons having custody of the child."
F. The right of access
110. Through a
decision to take a child into care the Social Welfare Board automatically takes
over the power to decide on contacts between the child and its parents and
other persons close to the child (Section 19.2 of the Child Welfare Act).
111. According to
Section 24 of the Child Welfare Act, a child who is in substitute care must be
guaranteed 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 must support and facilitate the child's access to his or her parents and
to other persons close to him or her.
112. According to
Section 25 of the Child Welfare Act, 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, if (a) such access clearly
endangers the development or safety of the child; or if (b) 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.
113. According to
Section 25 of the Child Welfare Act and Section 9 of the Child Welfare Decree (lastensuojeluasetus,
barnskyddsförordning 1010/1983), a decision concerning restriction of the
right of access is valid for a specified time, and it must name the persons
whose rights are restricted. In addition, the decision must specify what kind
of contacts are restricted by the decision and the scope of the restriction.
114. A decision to
restrict the right of access restricts the child's right to meet its parents
and other persons close to it. Such persons close to the child are the child's
guardian or other legal representative, members of family and those persons who
have kept in touch with the child before and after he or she was taken into
care.
G. Care plan
115. A care plan
must 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.
116. In the case of
a child taken into care (Section 16 of the Child Welfare Act) or a child placed
in residential care as a form of assistance in open care (Section 14 of the
Child Welfare Act) the care plan must specify (a) the purpose and objectives of
the placement; (b) 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; (c) how the child's access to its parents and other persons
close to the child will be organised; and (d) how after-care will be organised.
117. According to
Section 4 of the Child Welfare Decree, the care plan must be drawn up in
co-operation with those involved.
H. Child welfare authorities
118. According to
Section 4 of the Social Welfare Act, a social welfare board, with several
members elected by the municipality, is responsible for providing social
welfare in its area, and is charged with the responsibilities assigned to
social welfare boards in other Acts.
119. 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 the
board, with the exception of decisions involving compulsory welfare for an
individual.
I. Appeals under the Child Welfare Act
120. 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 the persons having custody of him
or her oppose the measure or if the hearing required by Section 17.1 of the Act
could not be arranged.
121. According to
Section 36, decisions concerning taking into care or placement in substitute
care can be appealed to the
122. According to
Section 37.1 of the Child Welfare Act, 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.
123. According to
Section 37.2 of the Child Welfare Act, decisions other than those contemplated
in subsection 1, relating to family-oriented and individual child welfare
rendered by the
124. According to
Section 35.2 of the Child Welfare Act, a child who has attained the age of 12,
his or her parents, the persons having custody of him or her or 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.
J. Other provisions regarding appeals
125. A person
challenging a decision made by an official subordinate to a municipal social
welfare board has the right, under the Administrative Procedure Act (hallintomenettelylaki,
lag om förvaltningsförfarande 598/1982), to have the decision reviewed by a
municipal social welfare board within fourteen days of being informed of the
decision. The Social Welfare Board's decision can be appealed to the
126. According to
Section 46 of the Social Welfare Act, a decision made by the Social Welfare
Board is subject to appeal to a
127. When a decision
of an authority can be appealed, the authority in question must attach to its
decision information about the appeal procedure.
128. According to
Section 47 of the Social Welfare Act, a decision made by a municipal social
welfare board is enforceable notwithstanding any appeal if (a) the decision
requires immediate implementation; or (b) for reasons due to the arrangement of
social welfare, the enforcement of the decision cannot be delayed; and (c) the
Social Welfare Board has ordered the decision to be enforced at once.
129. When an appeal
has been lodged, the appellate authority can stay enforcement of the decision,
or order that enforcement be suspended.
130. Section 38.1.
of the Administrative Judicial Procedure Act (hallintolainkäyttölaki,
förvaltningsprocesslag 586/1996), which entered into force on
K. Interested parties and their rights
131. According to
the Child Custody and Right of Access Act, a person under 18 years of age is,
as a minor, legally incompetent. 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.
132. Section 17.1
of the Child Welfare Act lists 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: (a)
the person having custody of the child, (b) a biological parent who does not
have custody of the child, (c) a person currently in charge of the child's care
and upbringing or who was in charge immediately prior to the case in question,
and (d) a child who has attained the age of 12. They must also 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 an obligation
to inform them, when necessary, of the possibility of an appeal.
133. 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 must be
afforded an opportunity to reply to the claims put forward by others as well as
to any evidence that may affect the decision.
L. Supervision of the activities of child welfare authorities
134. The County
Administrative Board, in the capacity of a regional State authority, has
general powers to supervise the activities of municipalities. Following a
procedural appeal, the County Administrative Board (lääninhallitus,
länsstyrelsen) can also investigate whether a local authority has acted in
accordance with the law.
135. 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 at first instance.
136. The
Parliamentary Ombudsman and the Chancellor of Justice (oikeuskansleri,
justitiekansler) are empowered to supervise the legality of the measures
taken by any authorities.
THE LAW
I. PRELIMINARY
ISSUES
A. Scope of the
case before the Court
137. In their
request for the referral of the case to the Grand Chamber, the Government
expressly asked the Court to re-examine only those issues where the Chamber in
its judgment of 27 April 2000 had found a violation of Article 8 of the
Convention, that is to say, in respect of the decisions of the domestic
authorities to take the applicants' children into public care and in respect of
their refusal to terminate the public care measures.
138. The applicants
did not contest this request nor did they submit a request under Article 43 of
the Convention for a re-examination of the case by the Grand Chamber in other
respects.
139. The Court must
therefore determine to what extent it is called upon to rule on the case, in
particular whether it can limit its examination to the issues raised by the
Government in their request under Article 43, which reads:
"1. Within a
period of three months from the date of the judgment of the Chamber, any party
to the case may, in exceptional cases, request that the case be referred to the
Grand Chamber.
2. A panel of five
judges of the Grand Chamber shall accept the request if the case raises a
serious question affecting the interpretation or application of the Convention
or the Protocols thereto, or a serious issue of general importance.
3. If the panel
accepts the request, the Grand Chamber shall decide the case by means of a
judgment."
140. The Court
would first note that all three paragraphs of Article 43 use the term "the
case" ("l'affaire") for describing the matter which is
being brought before the Grand Chamber. In particular, paragraph 3 of Article
43 provides that the Grand Chamber is to "decide the case" -
that is the whole case and not simply the "serious question" or
"serious issue" mentioned in paragraph 2 - "by means of a
judgment". The wording of Article 43 makes it clear that, whilst the
existence of "a serious question affecting the interpretation or
application of the Convention or the protocols thereto, or a serious issue of
general importance" (paragraph 2) is a prerequisite for acceptance of a
party's request, the consequence of acceptance is that the whole
"case" is referred to the Grand Chamber to be decided afresh by means
of a new judgment (paragraph 3). The same term "the case" ("l'affaire")
is also used in Article 44 §2 which defines the conditions under which the
judgments of a Chamber become final. If a request by a party for referral under
Article 43 has been accepted, Article 44 can only be understood as meaning that
the entire judgment of the Chamber will be set aside in order to be replaced by
the new judgment of the Grand Chamber envisaged by Article 43 § 3. This being
so, the "case" referred to the Grand Chamber necessarily embraces all
aspects of the application previously examined by the Chamber in its judgment,
and not only the serious "question" or "issue" at the basis
of the referral. In sum, there is no basis for a merely partial referral of the
case to the Grand Chamber.
141. The Court
would add, for the sake of clarification, that the "case" referred to
the Grand Chamber is the application in so far as it has been declared
admissible (see, mutatis mutandis, the Ireland v. the United Kingdom
judgment of 18 January 1978, Series A no. 25, § 157). This does not mean,
however, that the Grand Chamber may not also examine, where appropriate, issues
relating to the admissibility of the application in the same manner as this is
possible in normal Chamber proceedings, for example by virtue of Article 35 § 4
in fine of the Convention (which empowers the Court to "reject any
application which it considers inadmissible ... at any stage of the proceedings"),
or where such issues have been joined to the merits or where they are otherwise
relevant at the merits stage.
B. Admissibility of the applicants' complaints concerning the emergency care
orders
142. In their
request for referral of the case to the Grand Chamber the Government submitted
that the issue of emergency care orders had not been declared admissible by the
Chamber at all and that, consequently, it should not have been open to the
Chamber to examine this part of the proceedings. Furthermore, the Government
argued that the issue of emergency care orders should not be examined before
the Grand Chamber as no appeal had been lodged against the relevant emergency
care orders by the applicants during the domestic proceedings, and as the issue
of emergency care orders had not been raised by them before this Court until
the oral hearing before the Chamber on 8 June 1999.
143. The applicants
maintained that the issue of emergency care orders had been raised already in
the original application and that it was clearly to be seen as an inseparable
part of the taking-into-care issue as a whole. According to the applicants, in
their submissions at the oral hearing before the Chamber in June 1999 they had
only developed their initial complaints concerning the emergency care orders.
They furthermore pointed out that the Government had not objected to that
during the Chamber hearing, nor had they made any other comments on the subject
then.
144. The applicants
submitted that they had not appealed against the emergency care orders because
such an order, given by the leading social welfare officer, could be given only
for a limited time of fourteen days, and could not be appealed directly to the
County Administrative Court but only to the Social Welfare Board, which would
in practice deal with the emergency care order and the normal, final care order
at the same meeting. Thus, an appeal against the emergency care order would not
have had any de facto suspensive or remedial effect. Furthermore, the
applicants argued that the Government's objection should have been raised
during the admissibility proceedings at the latest and should be rejected by
the Grand Chamber.
145. The Court
first notes that the emergency care orders were mentioned in the application
form submitted on
As regards the
Government's further argument that the applicants failed to exhaust domestic
remedies in respect of the emergency care orders, the Court would recall that,
according to Rule 55 of the Rules of Court, any plea of inadmissibility must,
in so far as its character and the circumstances permit, be raised by the
respondent Contracting State in its written or oral observations on the
admissibility of the application submitted under Rule 51 or 54, as the case may
be. In the present case, no such plea of inadmissibility was made by the
Government in their written or oral observations at the admissibility stage.
Moreover, having regard to the provisional and temporary character of the
emergency care orders, whose ratification in the form of the normal care orders
was in effect confirmed by the Social Welfare Board on 15 July 1993 (see
paragraph 33 above), the Court accepts the applicants' argument that, in the
particular circumstances of the case, they could in any event be dispensed from
filing a separate appeal against the emergency orders. In conclusion, the
Government's arguments in this respect must also be rejected.
C. New material submitted by the parties
146. Before the
Grand Chamber the applicants objected to the taking into account of "new
material" which the Government had submitted to the Court, either in the
proceedings before the original Chamber or in the present Grand Chamber
proceedings, but which had not previously been relied on before the national
courts. In this respect the applicants argued that no new material should be
admitted as the child welfare authorities had had access to this material
already at the time of the domestic proceedings but had chosen not to submit it
to any of the courts. They also stressed that they had not had a possibility of
challenging that material before the national courts in adversarial
proceedings.
147. As is well
established in its case-law (see, inter alia, the Gustafsson v. Sweden
judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II,
§§ 47 and 51; and the Cruz Varas and Others v. Sweden judgment of 20 March
1991, Series A no. 201, § 76), the Court is not prevented from taking into
account any additional information and fresh arguments in determining the
merits of the applicants' complaints under the Convention if it considers them
relevant. New information may, for example, be of value in confirming or
refuting the assessment that has been made by the
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION