AS TO THE ADMISSIBILITY OF
Application no. 26570/95
by A.W. and F.W.
The European Court of Human Rights (Fourth Section), sitting on 25 January 2001 as a Chamber composed of
Mr G. Ress, President,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs N. Vajić,
Mr J. Hedigan,
Mr M. Pellonpää,
Mrs S. Botoucharova, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 1 February 1995 and registered on 22 February 1995,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
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 applicants are Finnish citizens, born in 1966 and 1954 respectively and resident in Tervajoki. Before the Court they are represented by Mr. Christian Holmsten, a lawyer and member of the Bar practising in Vaasa. The respondent Government are represented by Mr Holger Rotkirch, Director General for Legal Affairs, and Mr Arto Kosonen, Director, both of the Ministry for Foreign Affairs.
A. The circumstances of the caseNote
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are married and the parents of T.E., born in 1989, and S., born in 1991. The applicant mother has a third child, T.T., born in 1986, who also lived with the applicants at the beginning of the events of relevance to the application.
On 1 November 1993 the first applicant was apparently informally told by a social welfare official that public care orders regarding the children were being prepared. On 8 November 1993 T.T.’s father was formally heard in respect of the proposed public care of her. At a meeting on 18 November 1993 the applicants were formally notified that the Social Section (sosiaalijaosto, socialsektionen) of the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Vaasa would, on 2 December 1993, consider a proposal that the children should be placed in public care. The applicants opposed the proposal. They allegedly obtained the material which was to form the basis for the proposal only on Monday, 29 November 1993. According to the Government, the material was at the applicants’ disposal in the Social Welfare Office from Friday, 26 November 1993 onwards. The material contained various expert opinions and affidavits and totalled about 100 pages.
In their submissions of 30 November 1993 the applicants, represented by their current counsel, opposed the proposed public care, invoking, inter alia, an opinion submitted by Dr P.T., a general practitioner, according to whom the children were normally developed physically. A further opinion of 2 December 1993 was issued by Dr O.N., Acting Head of the Department for Child Diseases at the Central Hospital of Vaasa, who had been examining T.E. during several years. Dr O.N. stated in essence that the delay in T.E.'s mental development was being successfully followed up by various support measures. This opinion was submitted to the members of the Social Section on the same day.
Having heard the applicants and the leading social welfare official at its meeting on 2 December 1993, the Social Section placed the children in public care, considering that the applicants were incapable of ensuring their basic care and education, that their home was lacking incentives and that the applicants had shown indifference in regard to the children's overall well-being. The support measures provided by the Board had proved to be insufficient. The children were to be placed in a local children’s home pending their placement in a foster family. According to the care orders, the public care was expected to last until the children had reached the age of majority. The children’s right to maintain regular contact with their parents and with each other would be ensured. They could receive visits in the children’s home during visiting hours.
The Social Section relied on section 16 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983). The children were fetched from the applicants' home on 2 December 1993 around 8 p.m.
On 14 December 1993 the applicants appealed to the County Administrative Court (lääninoikeus, länsrätten) of Vaasa, requesting an oral hearing for the purpose of hearing Drs P.T. and O.N. as experts concerning the children’s health as well as various other persons as witnesses in regard to the conditions in the applicants' home. The applicants considered it unfair that the care orders had been based on the written reports of various public officials and experts consulted by the social authorities without the applicants’ having been able to question them orally. The applicants conceded that they had had financial problems but contended that they had always provided their children with satisfactory care.
In February 1994 the Social Welfare Board responded to the applicants’ appeals and the applicants submitted a rejoinder alleging that the children had expressed a strong wish to return home. On 23 March 1994 the County Administrative Court rejected the appeals, having found an oral hearing unnecessary. The County Administrative Court’s reasoning read in extenso as follows:
(translation from Finnish)
“According to the evidence transpiring from the documentation on file, the shortcomings in the children’s care and the other conditions in their home seriously jeopardise the children’s development. The open-care assistance has proved to be insufficient and substitute care has been deemed to be in the children’s best interests. The Social Welfare Board has therefore been under an obligation to place [the children] in the care of [the Board].”
The County Administrative Court relied on section 16, subsection 1, of the Child Welfare Act and on sections 16-17 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983).
The applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that the case be referred back to the County Administrative Court for an oral hearing of experts and witnesses. The applicants again argued that they had only had two working days at their disposal for preparing for the decisive meeting on 2 December 1993. In addition, the preparation of their subsequent appeals had been hampered by the impossibility of having the children, then already removed from the applicants’ home, examined by experts of the applicants’ choosing.
On 18 November 1994 the Supreme Administrative Court rejected the applicants' request and appeal as a whole by upholding the lower court’s decision.
According to the information available to the Court, T.E. is still staying at a children's home in Vaasa. S. and T.T. are staying in foster families at Jalasjärvi, some 150 kilometres from Vaasa. According to the applicants, they met T.E. in the children’s home once every other month up to 1997 but were allegedly able to meet S. and T.T. only in December
1994 and June 1995. During 1997 the applicants and the children met twice.
B. Relevant domestic law
The relevant legislation is outlined in the Court’s judgment in the case of L. v. Finland (no. 25651/94, 27.4.2000, §§ 53-97). Those provisions of particular relevance to the present case are described below.
According to section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her 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) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2).
If a child is in imminent danger or otherwise in need of an immediate care order and foster care, the Social Welfare Board may take him or her into care without submitting the decision to the County Administrative Court for prior approval (section 18). An emergency care order shall expire within fourteen days of the decision, unless referred for reconsideration under section 17 of the Child Welfare Act. An ordinary care order pursuant to section 17 must be issued within thirty days, or on special grounds within sixty days, of the emergency order. Both ordinary and emergency care orders may be appealed to the administrative courts.
The child’s custodians, biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties.
According to section 47 of the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982), a decision made by the Social Welfare Board is enforceable regardless of an appeal (a) if the decision requires immediate implementation; (b) if, for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; or (c) when the Social Welfare Board has ordered the decision to be enforced at once.
According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child’s contacts with his or her parents and other close persons (subsection 2).
According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree, the Social Welfare Board or the director of a children’s home may restrict the right of access of a child in foster 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 children’s home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction.
The care plan to be drawn up in respect of a child in public care shall mention (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 right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved.
The applicants complain that their children's placement in public care violated their right to respect for their private and family life. They submit, in particular, that they were not afforded sufficient time to challenge the proposal for public care which the social workers had put before the Social Section of the Social Welfare Board. They stress that the material invoked by the social workers was voluminous. Moreover, the children were fetched from their home late in the evening when one of the children was suffering from high fever. No oral hearing was held before the administrative courts, which prevented the applicants from questioning those experts whose opinions the Social Welfare Board had relied upon as well as experts and witnesses called by the applicants themselves. The applicants invoke Articles 6 (§ 1) and 8 of the Convention.
1. The applicants complain that their right to respect for their private and family life was violated on account of their children's placement in public care. The applicants essentially refer to their insufficient involvement in the decision-making procedure and to the manner in which the children were removed from their home.
These grievances fall to be considered under Article 8 of the Convention which reads, as far as relevant, as follows:
“1. Everyone has the right to respect for his … family life,…
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government consider the complaint manifestly ill-founded. The interference with the applicant’s right to respect for their family life was based on various provisions of the Child Welfare Act and the related Decree which are intended to protect the best interests of children. The placement of the applicants’ children in public care was, and continues to be, proportionate to that aim and thus necessary in a democratic society as required by Article 8 § 2. The public care orders were grounded on the intensive work of social welfare and health care authorities during six years in two municipalities as well as on unanimous expert opinions.
Already in the 1970s the first applicant had been assisted by the Vaasa Social Welfare Office due to her repeated prison sentences, constant unemployment, repeated evictions, her inability to take care of her finances and her alcohol problem. Her unemployment and alcohol problems persisted after she married the second applicant in 1988. Although the applicants later denied having a drinking problem, they both confirmed the problem in contacts with the social authorities in 1993. While the first applicant and T.T. were living in Maalahti open-care assistance had proved to be insufficient and T.T.’s placement in public care had been proposed by local social welfare officials. Due to the first applicant’s and T.T.’s move back to Vaasa in 1988 the Maalahti Social Welfare Board referred the matter to the Vaasa authorities. The co-operation between the social welfare officials, the local Child Welfare Clinic, different nurseries, the home assistance service, the local Clinic for Neurology and Child Psychiatry as well as the Department for Child Diseases of the Vaasa Central Hospital was particularly intensive in 1992-1993, resulting in the plan for open-care assistance dated 24 June 1993. In August-September 1993 all experts involved agreed that the children were not well. In spite of intensified assistance, indications from nursery and school staff, relatives and neighbours led to the conclusion that public care of the children was unavoidable. T.T., then almost seven years old, even stated that she wanted to go to a new home.
The applicants often neglected to bring the children for check-ups and other examinations at the child welfare and medical clinics. T.T. was seen wandering around on her own and the applicants were suspected of assaulting the children. She also suffered from wetting and dirtying. T.E. was hyperactive and had autistic tendencies, suffered from strong anxiety and fear as well as defecation problems. His mental development was seriously delayed. The child psychiatrist and paediatrician of the Vaasa Central Hospital agreed that the main and only identifiable reason for the children’s problems was their parents’ incapability of caring for their basic needs and assuming their upbringing.
Prior to the Social Section’s meeting on 2 December 1994 attempts had been made to discuss the manner in which a possible fetching of the children could be enforced. The applicants had refused to discuss the matter, being convinced that the children would not be placed in public care. The care orders were enforced immediately after the meeting, since the applicants’ comments to the Social Section had indicated that they might do something desperate or leave Vaasa in order to prevent the enforcement of the care orders. After the meeting the applicants threatened the Social Welfare Director and other officials. The applicants were informed of, and agreed on, the precise hour when the children would be fetched. The police officers escorting the children and the social welfare officials were not uniformed. Prior to the fetching the applicants themselves had been frightening the children by saying that they would never see their parents and friends again. The applicants’ behaviour made the enforcement of the care orders exceptionally difficult. The feverish state of one of the children was a further argument for swift enforcement of the care orders, since the applicants had repeatedly neglected to care for their children’s health.
The authorities’ expectation that the public care would last until the applicants’ children had reached the age of majority was based on the long-term and unanimous assessment of the various officials and experts involved. The applicants may nonetheless at any time seek the revocation of the care orders if they consider the relevant conditions to have improved.
The Government further submit that the negative and passive attitude and behaviour of the applicants have been the main obstacles to maintaining contact between them and their children. During their initial placement in the children’s home in Vaasa the applicants were allowed to visit them every day during visiting hours. Between September 1993 and December 1996 the applicants paid only 21 visits to T.E. Only three of these took place in 1996 and even then at the initiative of the social authorities. Before S. and T.T. were placed in foster families the applicants visited them on 17 and 13 occasions, respectively. In 1996 the children’s home organised a visit where the applicants and all children could meet. The efforts to define the mutual access failed in connection with the decisions to implement the substitute care of S. and T.T. in foster families. The applicants repeatedly failed to participate in negotiations with the social authorities. The applicants did not oppose or appeal against the care plan which was accepted by S.’s foster parents and confirmed in March 1995. Although this plan afforded the applicants the possibility of meeting with S. four times a year, they failed to contact the authorities to agree on the dates of the visits. As of December 1996 the children were meeting once a month either in the foster families of S. or T.T. or in the children’s home. Their mutual contact was good.
In conclusion, the Government consider that the facts of the case strongly supported the decisions of the relevant authorities which were under a duty to ensure the children’s welfare. The applicants were, moreover, sufficiently involved in the decision-making process. The possibility of placing their children in public care was first discussed with the applicants on 1 November 1993, when the social welfare officials’ co-operation with them broke down. On 18 November 1993 the applicants, assisted by counsel, were heard in the social welfare office. They were further invited to attend the meeting of the Social Section on 2 December 1993 and informed that they could obtain the written material in support of a public care order on 26 November 1993. Consequently, they had six days at their disposal to prepare their rejoinder. Even though the material comprised about 100 pages, part of the material was identical to the three separate care orders proposed to be issued. The applicants only needed to comment on some 40 pages. Their counsel sent their rejoinder of 30 November 1993 directly to the members of the Social Section. On 29 November 1993 the applicants had also had the children examined by Dr P.T., whose opinion was made available to the Social Section prior to its meeting. At the meeting the applicants, assisted by their counsel, were able to comment on the proposed care orders and respond to questions from members of the Social Section. As the first applicant’s circumstances had been monitored for six years and the situation of the whole family had been followed for four years, the social authorities were aware of the views and interests of the applicants. In the proceedings before County Administrative Court the applicants were able to respond to the Social Welfare Board’s statement, whereas they never requested an oral hearing before the Supreme Administrative Court.
The applicants maintain their complaint. The circumstances did not justify the swift procedure applied and the immediate enforcement of the public care orders. The “meeting” on 1 November 1993 was not of formal character: the official responsible for the case happened to meet the first applicant in the street and told her about the intention to place the children in public care. Prior to the meeting on 18 November 1993 the applicants did not receive any materials outlining even the general grounds for public care. Neither were those grounds explained at the meeting itself. Its sole purpose was to establish whether the applicants would consent to the public care. The applicants deny having been informed at the meeting of the date when the relevant documentation would be available to them. Counsel was only later informed that it would be available to him on 26 November 1993. When telephoning the Social Welfare Office on that day counsel was informed that the material to be photocopied was voluminous and that priority had to be given to dispatching it to the members of the Social Section. As a result counsel was able to collect the material only on 29 November and had to cancel his meeting with the applicants scheduled for 26 November. Even if assisted by counsel the applicants could in no way familiarise themselves adequately with the extensive documentation and elaborate properly on their objections within two to three days, whereas the authorities had been working on the case for years. The only medical expert available to examine the children at the applicants’ request was a general practitioner. At the Social Section’s meeting it became obvious to the applicants that none of its members had bothered to read their rejoinder. A majority of the members had counsel’s unopened letter in front of them and the leading social welfare official reacted very negatively when informed of the rejoinder. The Acting Chairman of the meeting refused counsel’s request to hear witnesses, even though some of them had submitted affidavits and were present. Some social workers would not even allow the proposed witnesses to wait outside the meeting room, supposedly since they were disturbing the meeting. After the children had been placed in public care the applicants were unable to have them examined by independent experts. Accordingly, the various written reports and opinions submitted in support of the care orders could not be challenged effectively, whether before the Social Section or the County Administrative Court.
The applicants furthermore deny having neglected to bring the children in for medical examination whenever needed. Events dating back to the applicants’ youth should not be given any relevance. At no stage did T.T. state a wish to move elsewhere. On the contrary, the children have clearly expressed a desire to return to the home of the applicants. The children were placed separately, two of them at some distance from Vaasa. The applicants, who are unemployed, have not had the means to travel to those two children sufficiently often. The social authorities have also stipulated very strict conditions for any access.
The Court recalls that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see, amongst others, the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55, § 86). The taking of a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child. In this regard a fair balance has to be struck between the interests of the child in remaining in the public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which may override those of the parent. In particular, the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development (see, e.g., the aforementioned L. v. Finland judgment, § 122).
An interference with a right guaranteed by Article 8 constitutes a violation of this provision unless it is "in accordance with the law", pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as "necessary in a democratic society”. The Court must also determine whether, having regard to the particular circumstances of the case and notably the importance of the decisions to be taken, the applicants were involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests (see, e.g., the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, § 64, and the aforementioned McMichael judgment, p. 55, § 87).
In the present case the placement of the applicants’ children in public care no doubt interfered with their right to respect for their family life. The Court finds no indication, however, that this interference was not based on the Child Welfare Act or did not aim at protecting the health and rights of the children. Neither can the Court find that the social welfare authorities or the administrative courts overstepped their margin of appreciation in issuing the public care orders as well as implementing and upholding them. The Court places particular weight on the lengthy monitoring of the family conditions and the likewise long-term open-care assistance afforded to the applicants. It was apparently only when that assistance had not produced the necessary improvement of the children’s conditions that they were removed from their home.
The Court further notes that the authorities expected that the children would need long-lasting care. It has not been established that such a presumption could not be rebutted. There is no indication that the applicants even attempted to have the care orders revoked by arguing that the conditions in their original home had improved. The Court, moreover, does not find it established that the applicants were prevented from meeting with their children during visiting hours in the children’s home or that any other access restrictions issued were such as to lack justification under Article 8 § 2 of the Convention.
Summing up, the Court concludes that the Finnish authorities could reasonably consider it justified to place the children in public care. It has not been shown that the implementation of that care has as such been in violation of Article 8. Accordingly, the interference with the applicants’ rights can be considered proportionate to the legitimate aim pursued and thereby “necessary in a democratic society”. To sum up, the interference has been justified under Article 8 § 2 of the Convention.
As recalled above, Article 8 guarantees to parents the right to be involved, as fully as possible, in the decision-making, not least in a matter of such magnitude as involves the removal of their children from their care. In this respect the Court notes that the applicants and their counsel only had a few days at their disposal for commenting in writing on the materials underlying the proposed care orders put before the Social Section and for preparing for its meeting. The applicants have further alleged that they were unable to have heard witnesses and experts put forward by them. The Court notes, however, that even though the applicants were assisted by counsel they did not request the Social Section to postpone its meeting in light of the very limited time afforded to them for preparing their objections to the public care proposals. They did not invoke the shortness of the preparation period in their first appeal to the County Administrative Court and did not request that the children be examined by further experts in the course of the proceedings before either of the administrative courts. It is true that no oral hearing was held before the County Administrative Court despite the applicants’ request. Article 8 cannot, however, be interpreted as requiring a hearing before a “tribunal” within the meaning of Article 6 § 1 of the Convention.
In these particular circumstances the Court cannot conclude that the applicants were insufficiently involved in the decision-making leading up to the placing of their children in public care and the confirmation of those care orders by the administrative courts.
It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2. The applicants further complain that no oral hearing was held before any of the administrative courts, which prevented them from questioning those officials and experts whose opinions the Social Welfare Board had relied upon and from calling their own experts and witnesses. The applicants invoke Article 6 § 1 of the Convention which reads, as far as relevant, as follows:
“In the determination of his civil rights and obligations ... , everyone is entitled to a ... public hearing … by an independent and impartial tribunal ... “
The Government submit that this complaint is also manifestly ill-founded. The applicants did not request that an oral hearing be held before the Supreme Administrative Court, only that it refer the matter back to the County Administrative Court. The applicants thereby waived unequivocally their right to obtain a hearing before the highest court. In any case, their appeal did not raise any question of law or fact which could not be resolved adequately on the basis of the Supreme Administrative Court’s case-file. The Government finally recalls its reservation to Article 6 § 1 of the Convention according to which the applicants had no right to an oral hearing before County Administrative Court or the Supreme Administrative Court at the relevant times.
The applicants maintain that the Finnish reservation was inapplicable in their case, since under domestic law it would have been possible for the courts to hold an oral hearing. The applicants’ reason for not requesting an oral hearing directly before the Supreme Administrative Court was the convenience of possibly being able to plead the case orally in their home city of Vaasa.
The Court notes that the instrument of ratification of the Convention deposited by the Finnish Government on 10 May 1990 contained a reservation, according to which Finland could not guarantee a right to an oral hearing inter alia before a County Administrative Court and the Supreme Administrative Court, in so far as the then Finnish laws did not provide such a right. This reservation was withdrawn in respect of the administrative courts as from 1 December 1996.
In the present case the court proceedings came to an end prior to that date. Having regard to the terms of the reservation, Finland was therefore under no Convention obligation to afford the applicants an oral hearing. While it is true that the effect of the reservation was to deny the applicants a right to an oral hearing before an independent and impartial tribunal, the Court has already considered this result compatible with the Convention and a consequence of the operation of a valid reservation (see the Helle v. Finland judgment of 19 December 1996, Reports of Judgments and Decisions 1997-VIII, pp. 2925-2926, §§ 44 and 47).
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Vincent Berger Georg Ress
A.W. AND F.W. v. FINLAND DECISION
A.W. and F.W. v. FINLAND DECISION