AS TO THE ADMISSIBILITY OF
Application no. 28460/95
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 31 August 1995 and registered on 6 September 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 applicant,
Having deliberated, decides as follows:
The applicant is a Pakistani national, born in 1961. He is represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. 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 case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the father of Y., born in 1992. He is a Muslim. On 10 November 1993 he was arrested and detained, suspected of having killed his wife (Y.'s mother) on the same day. On 11 November 1993 an official of the Turku Social Welfare Authority provisionally took Y. into public care in virtue of section 18 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983). Y. was placed in a children's home. The mother's half-brother and half-sister had been heard prior to the decision.
On 13 November 1993 the applicant confessed to having killed his wife, referring to his jealousy. He was later found to have been in possession of his full senses at the moment of the crime.
Officials of the Basic Welfare Board (perusturvalautakunta, grundtrygghetsnämnden) of Valkeakoski started preparing a proposal for a confirmation of the provisional care order. It did not hear the applicant, although it had been informed of his whereabouts.
On 17 November 1993 the Basic Welfare Board upheld the public care of Y. pursuant to sections 16 and 17 of the Child Welfare Act. It noted that the mother was dead and that her father had been detained on suspicion of having murdered her. Other support measures to ensure Y.'s welfare would be insufficient. The public care was expected to be of a long duration. The applicant's access to Y. was prohibited indefinitely and her whereabouts were not disclosed to the applicant. No reasons were given for the prohibition. The Board's decision was notified to the applicant on 24 November 1993 and a social worker briefly explained the contents thereof in English. As the applicant had not been heard prior to the decision, the Board forwarded it ex officio to the County Administrative Court (lääninoikeus, länsrätten) of Häme for its review.
At a meeting between a representative of the association Pelastakaa lapset r.y.– Rädda barnen r.f. (“Save The Children”) and the applicant in prison on 20 January 1994 the latter requested that the authorities consider the possibility of placing Y. in his brother's family in Belgium either for the duration of his sentence or permanently, by adopting her. The brother had allegedly consented to such an arrangement. The social authority's case notes of 24 January 1994 included an account of the meeting, as recounted by the representative of Save The Children. According to the notes, the applicant had been informed at the meeting that Y.'s maternal relatives were opposed to her placement outside Finland and that Save The Children was looking for a foster family for her. When inquiring about Y.'s possibility to visit him in prison, the applicant had been informed that the access prohibition would be reconsidered on his release. It transpires from the case notes that a potential foster family had already been contacted by Save The Children.
On 18 February 1994 the applicant, represented by his current counsel, appealed belatedly to the County Administrative Court, stating, inter alia, that he had not been properly heard before the Basic Welfare Board's decision, nor legally notified of its contents.
In its submissions in reply the Basic Welfare Board stated, inter alia, that the care order had taken into account the wishes of Y.'s mother's relatives, who had wanted to ensure that Y. would continue to receive a Christian education.
On 21 February 1994 Y. was placed in a foster family selected by Save The Children. According to the care plan adopted on 22 February 1994, her whereabouts would be concealed from the applicant as long as she remained in public care. At a later stage she could decide for herself whether she wanted to meet him. She would be entitled to meet her maternal half- brother and half-sister, but initially only on neutral premises so as to protect her and the foster parents' privacy and security. The care plan was agreed by regional director (and social worker) A.R. of Save The Children, a director and a social worker of the Basic Welfare Authority as well as the foster parents. The applicant had not been invited to attend.
In a decision of 28 February 1994 a leading official of the Basic Welfare Board ordered that the access prohibition should be in force up to Y.'s twelfth birthday (i.e. until 16 April 2004). Having regard to the child's age and state of development, access prior to that date would not maintain a child-parent relationship. Accordingly, Y. had no right to see the applicant until she had reached that age, when she could decide for herself whether she wished to see him. The official of the Board furthermore considered that, in order to protect Y. and the foster family's privacy and security, her whereabouts should not be disclosed to the applicant or her other relatives. The applicant appealed to the Basic Welfare Board.
In its decision of 15 April 1994 in the care order proceedings the County Administrative Court noted that the applicant had been detained while the emergency order and the ordinary care order had been issued on 11 November 1993 and 17 November 1993, respectively. The court further noted that the emergency care order would have expired after fourteen days unless replaced by an ordinary care order. Finally, the Board had, of its own motion, referred its decision for review by the County Administrative Court, since the applicant had not been heard. In those circumstances the Board had not proceeded wrongly by not hearing the applicant prior to its order of 17 November 1993.
The County Administrative Court accepted, however, that the contents of the ordinary care order had not been sufficiently explained to the applicant, and examined his belated appeal. It nonetheless rejected it without having held an oral hearing, thus confirming the care order and Y.'s foster care. The court furthermore agreed that the access prohibition issued on 17 November 1993 had been incorrect in that it had comprised no reasoning or time-limit. However, in view of the new prohibition issued on 28 February 1994, the court found no reason to pronounce itself further in regard to the initial prohibition. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting an oral hearing.
On 27 April 1994 the District Court (käräjäoikeus, tingsrätt) of Turku convicted the applicant of manslaughter and sentenced him to nine years' imprisonment. The conviction and sentence were upheld by the Court of Appeal (hovioikeus, hovrätt) of Turku on 16 September 1994. The applicant served his sentence in the Turku County Prison until October 1996, when he was transferred to the Vilppula Low-Security Prison.
Meanwhile, on 18 May 1994, the Basic Welfare Board confirmed the access prohibition issued on 28 February 1994, stating, inter alia, that domestic law did not allow a father to care for his child in prison. The applicant appealed, arguing that he had not been properly heard prior to the decision. In addition, he stated that it had been made without knowledge of current domestic law which did allow a father to care for his child in prison.
The Basic Welfare Board explained to the County Administrative Court, inter alia, that it had considered it unnecessary to hear the applicant, since at the time he had been undergoing an examination of his mental state in a mental hospital.
On 21 November 1994 the County Administrative Court quashed the Basic Welfare Board's decision and referred the matter back for renewed consideration. The applicant's stay in a mental hospital at the relevant time had not been a valid reason for not hearing him in accordance with section 15 of the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). The court nonetheless rejected his request that the Board should be ordered to pay his legal costs.
In a subsequent written submission to the Basic Welfare Board the social welfare worker in the applicant's prison testified to his exemplary conduct and strong attachment to his daughter. Meetings between two would therefore not be contrary to her best interests. Supporting such meetings had been the practice in many similar cases involving a male prisoner and a child without a mother. The applicant's ethnic background should not be allowed to influence the decisions concerning the access question.
On 9 February 1995 A.R. of Save The Children interviewed the applicant in prison in regard to the access question. The applicant was assisted by an interpreter. According to the report which A.R. forwarded to the Basic Welfare Board, the applicant had requested to see Y. in prison in the area designated for visits by family members. The applicant had accepted Y.'s public care, her foster parents and the fact that she would be accompanied by them during her visits. The applicant had indicated that he would be able to speak some Finnish with her. He had denied certain allegations made by Y.'s mother's relatives but did not object to meeting them, if they so wished. At the end of the meeting A.R. had informed the applicant that he would receive copies of the relevant documents through his counsel. In her written cover letter to the Board dated 21 February 1995 A.R. of Save The Children urged it to maintain the access prohibition until meetings became a natural matter of consideration in the course of Y.'s development.
Meanwhile, on 16 February 1995, the applicant had submitted his written views directly to the Board without the assistance of his counsel.
On 22 February 1995 the Basic Welfare Board upheld the access prohibition issued on 28 February 1994. The applicant appealed again, requesting that the prohibition either be quashed or that it be amended so as to end around the time when he was expected to be released on parole, i.e. in 1998.
In its decision of 3 March 1995 the Supreme Administrative Court refused the applicant's request for an oral hearing in the care order proceedings. It found that he had not been heard prior to the Basic Welfare Board's order of 17 November 1993. As the Board had referred its order to the County Administrative Court for its review and the applicant had been able to appeal against the order and comment on the Board's submissions to that court, and in light of the evidence on file, there was no reason to quash the Board's or the lower court's decision due to the error in the hearing of the applicant. In its submissions the Basic Welfare Board had maintained that domestic law did not allow a father to care for his child in prison.
On 22 June 1995 the County Administrative Court quashed the Basic Welfare Board's decision of 22 February 1995 and referred the matter back for renewed consideration. It did not object to the access prohibition as such, considering that contacts between Y. and the applicant would obviously endanger Y.'s development. It had therefore also been necessary to conceal Y.'s whereabouts from the applicant. The court considered, however, that sufficient reasons had not been shown to justify that the prohibition should last until Y. would reach the age of twelve. It declined to pronounce itself in the first instance on the appropriate duration of the access prohibition and the secrecy order regarding Y.'s whereabouts. The applicant's request that the Board be ordered to pay his legal costs was rejected.
In an opinion of 8 August 1995 Dr E.V., a senior physician specialising in child psychiatry, considered Y.'s best interests to warrant an access prohibition lasting at least until her twelfth birthday. Dr E.V., who gave his opinion in his capacity as Save The Children's consulting child psychiatrist, stated in extenso as follows:
(translation from Finnish)
“I have studied Save The Children's case file. On that basis, without having met the child or others involved in the matter, but having discussed it with the employee of Save The Children, I consider that the biological father's request [for meetings to take place] is founded on various misunderstandings. He is of the view that the Board's way of proceeding violates both parties' right to respect for their family life, and that the starting point in the decision-making should have been to re-establish [that] family on [his] release from prison. This, however, would be contrary to both law and morality. The morality of child welfare is based on the same principle as the Child Welfare Act, i.e. on the intention to ensure that the best interests of the child are respected, as opposed to the interests of the parents when [the two sets of interests] are conflicting. It is clearly in the best interests of [Y.] that she can establish a normal and happy family [life] in [her] current foster family and that she may grow up to be a healthy adult. Meetings with her biological father are possible only in so far as they are not contrary to [her] best interests. When the law speaks of the child's right to meet his or her parents, this refers precisely to a right belonging to the child, and not to a right of a parent to meet his or her child irrespective of the damage or danger which such meetings produce to the child.
The Board has proposed to fix at twelve years the age when [Y.] and the applicant might begin to meet. The Board appears to base itself on the principle that a twelve-year old child must be heard before a decision in a matter concerning him or her is taken. From the point of view of child psychiatry I consider that [this] age-limit should not be applied categorically. [The age-limit] does not signify that from then onwards the child will decide on his or her own in matters of this kind, but that the decisions are made after hearing the child. This means that the foster parents or the Social Welfare Board responsible for the child may arrive at a decision which is contrary to the opinion of the child, if they consider that this is in the child's best interests. This is a very sensible approach, since a twelve-year old cannot be presumed to make absolutely sensible decisions. Ideally, [Y.'s] foster parents, who have the most evident and strongest emotional tie to [her], should make all decisions concerning her, since they are best equipped to understand what [she] really wishes to do and what is in her best interests. [Y.] should be allowed to make decisions completely on her own only when has reached the age of majority, i.e. at the age of 18. This is also sensible from a psychological point of view: it is only when [she] will have reached the age of early adulthood that her development will not be jeopardised by non-preferable relationships. I would also like to stress that the worst damage done to children nowadays stems from removing them from families to whom they have become attached and whose psychological members they are, with a view to arbitrarily placing them back for instance with their biological parents or parent, with whom the child has no relationship.
In my view [the authorities] should urgently proceed to having [Y.] adopted by the foster parents, if they consent to this. The fact that the child is not legally a member of the family to whom [she] belongs emotionally is damaging to the child.
From the point of view of child psychiatry it is therefore justified that meetings between [Y.] and the applicant are not organised until she turns twelve and thereafter only if she clearly expresses a wish to meet him and provided that the adults who love her consider such meetings useful to her. The father should understand that a child is not an object which he can own, but a living human being, who is entitled to live his or her own life according to his or her own emotions.”
Dr E.V.'s opinion was not served on the applicant prior to the decision of the Basic Welfare Board of Valkeakoski of 27 September 1995, whereby the access prohibition was again maintained until 2004. The applicant appealed and requested an oral hearing. He objected, inter alia, to not having been heard in respect of Dr E.V.'s opinion and not knowing what precise material it had been based on. The applicant stated his wish to examine Dr E.V. as witness and stated that he might also call a witness of his own choosing.
On 15 April 1996 the County Administrative Court held an oral hearing at which Dr E.V. was heard as witness. The applicant had not called any further witness.
In his further submissions of 25 April 1996 to the County Administrative Court the applicant stressed that he could not afford calling expert witnesses to counter Dr E.V.'s views. He therefore adduced copies of documents from a case in which neither the Helsinki Social Authority nor the experts consulted had even suggested an access prohibition in respect of a child, whose Finnish father had killed the mother. That child had not been placed in public care, being cared for by her maternal grandmother.
In its decision of 13 May 1996 the County Administrative Court rejected the applicant's appeal. The court now found that the duration of the access prohibition, as maintained by the Basic Welfare Board, was justified. The applicant received the decision on 6 May 1996. No further appeal lay open.
In February 1998 the Police of the Valkeakoski District proposed that the applicant be expelled to Pakistan on his release on parole, and banned from returning to Finland. The applicant opposed the proposals on the grounds that such a decision would sever his family ties to Y., in violation of Article 8 of the Convention.
On 27 April 1998 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) refused the applicant's request for a further residence permit. On 28 April 1998 it ordered his expulsion to Pakistan and banned him from re-entering Finland. The Directorate noted that his only family tie to Finland consisted of Y., whom he had been banned from meeting. Given the specific features of their family relationship, the heinous crime which the applicant had committed, thereby displaying his danger to others, the interference with his right to respect for his family life was justified under Article 8 § 2 of the Convention. The re-entry ban could be reconsidered if, for instance, he later obtained a right to see Y. Under a Nordic treaty this ban extends to the other Nordic countries.
At a meeting between A.R., the applicant and the foster parents on 29 April 1998 the applicant was told that various experts had advised against enabling him to meet Y. even once before leaving Finland. Even observing her without her knowledge would have been contrary to her best interests. It transpired from the meeting that the foster parents would continue to forward to Y. the applicant's letters and gifts as well as to keep him informed of her development.
In May 1998 the applicant was released on parole and left Finland. On 10 September 1999 the Supreme Administrative Court upheld the expulsion order.
According to various opinions of January 1998 issued by the prison governor, prison psychologist and other staff, the applicant's conduct in prison had been exemplary.
The Legal Aid Office (oikeusauputoimisto, rättshjälpsbyrån) of Valkeakoski awarded the applicant legal aid both for the purposes of the domestic court proceedings and for bringing his application under the Convention. This award covered counsel's fees but not the costs incurred.
B. Relevant domestic law
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 proposal to issue or revoke a public care order or to place a child outside his or her original home. They shall further 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. 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.
If an ordinary care order has been issued pursuant to section 17 of the Child Welfare Act without the prior hearing of a party, the social welfare board shall forward it to the County Administrative Court within thirty days, unless the party in question could not be located with reasonable means or the child has no contact with that party, in which case a hearing would not be justified (section 17, subsection 2).
If a party appeals against an order issued under section 17, the County Administrative Court shall also review it (section 36).
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 (lastensuojeluasetus, barnskyddsförordning 1010/1983), 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.
Further provisions governing child welfare measures are outlined in the Court's judgment of 27 April 2000 in the case of L. v. Finland (no. 25651/94, 27.4.2000, §§ 53-97).
According to the Act on the Enforcement of Punishments (rangaistusten täytäntöönpanosta annettu laki, lag om verkställighet av fängelsestraff 39/1889), a prisoner may be allowed to care for his or her young child in prison, provided such care would be in the best interests of the child and the prisoner wishes to assume the care (section 1b, subsection 4, as added by Act no. 555/1990). This provision replaced the former section 1c which had only referred to mothers. Up to 1 May 1995 section 4, subsection 4, of the Act on Pre-Trial Detention (tutkintavankeudesta annettu laki, lag om rannsaknings-fängelse 615/1974), likewise applied only to mothers in detention, whereas the new subsection 2 applies equally to detainees of both genders.
According to the Act on County Administrative Courts (lääninoikeuslaki, lag om länsrätterna 1021/1974), as in force at the relevant time, the costs and economic losses incurred by an expert or other witness shall be reimbursed by the State, provided he or she was summoned by the court itself (section 19, as in force up to the entry into force of Act no. 588/1996). According to the Act on Cost-Free Proceedings (laki maksuttomasta oikeudenkäynnistä, lag om fri rättegång 87/1973), the costs and losses incurred to a witness called by a party who has been granted cost-free proceedings shall be covered by the State (section 8). The said Act excludes from its scope proceedings concerning, for instance, an access prohibition issued on the basis of the Child Welfare Act.
1. The applicant complains that his daughter's public care and the implementation of that care violated his right to respect for his family life. He was not properly heard prior to the care order and the decision to transfer Y. to a foster family. Other care alternatives were not genuinely considered. His request to care for Y. in prison was immediately dismissed, although similar requests by female prisoners had been granted. He was discriminated against on account of his gender, ethnicity and religion. Finally, rather than aiming at reuniting the applicant and Y. in 1998, when he could be expected to be released on parole, the authorities prohibited meetings between them until such point in time when he had been expelled from Finland in the absence of a sufficiently strong link to the country and when the biological family life could no longer be re-established.
The applicant invokes Article 8 of the Convention as well as Article 14 read in conjunction with Article 8.
2. The applicant further complains that the proceedings regarding the care order and the access prohibition were unfair in that he was not properly heard. The Supreme Administrative Court refused his request for an oral hearing in the proceedings concerning the care order. The legal aid granted to him could not cover the costs of calling an expert witness to counter the opinion of Dr E.V. in the proceedings concerning the access prohibition, and the applicant could not afford to cover those costs and losses himself. Moreover, in its decisions of 21 November 1994 and 22 June 1995 the County Administrative Court refused to order the Basic Welfare Board to pay his legal costs, although his appeals had been largely successful.
The applicant further complains that the excessive delay in the proceedings concerning the access prohibition influenced their outcome.
The applicant invokes Article 6 of the Convention as well as Article 14 read in conjunction with Article 6.
3. The applicant finally complains that Y.'s public care has prevented him from influencing the education she is receiving, in violation of Article 2 of Protocol No.1.
1. The applicant complains that the public care of his daughter, its implementation and the related decision-making process violated his right to respect for his family life and discriminated against him on account of his gender, ethnicity and religion. He invokes Article 8 of the Convention as well as Article 14 read in conjunction with Article 8.
Article 8 of the Convention 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.”
Article 14 provides as follows:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government submit that the complaint is manifestly ill-founded. The interference with the applicant's right to respect for his 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. Placing Y. in public care was proportionate to that aim and necessary in a democratic society as required by Article 8 § 2, it being the only means whereby the authorities could safeguard her interests and ensure her development while the applicant was serving his prison sentence. The applicant and Y. lacked a common language and the two had not displayed any strong mutual relationship before the death of Y.'s mother. Any meetings between Y. and the applicant would have had to be organised in prison. In these circumstances and given Y.'s young age it would have been impossible to create a normal emotional relationship between the two.
It is true that the authorities expected from the outset that Y.'s public care would be of indefinite duration. At the time of the care order she was about a year and a half, but was going to have reached the age of six by the time the applicant could be expected to be released on parole. His brother never formally requested permission to adopt Y. In any case the Convention on the Rights of the Child provides for international adoption as an alternative only when a child cannot be placed in an adoptive or foster family within its country of origin.
The refusal to allow the applicant to care for Y. in prison was not discriminatory. Whether male or female, a prisoner had no absolute right to pursue such care in prison, where this would be contrary to the best interests of the child. Considering the length of the applicant's sentence, Y. would, if cared for by him, at some point have realised that she was living in a prison. The language barrier between the two and the applicant's inexperience as her custodian also militated against allowing her to be cared for in prison.
Y.'s foster parents were selected in view of their willingness to acquaint her with the applicant's country of origin, culture and religion. The prohibition of meetings and the applicant's expulsion from Finland have not prevented other forms of contact between the two. The association Save The Children has forwarded the applicant's greetings and presents to Y. and has transmitted to him the foster parents' accounts of her life and development. Her public care has thus not been aimed at severing all ties with the applicant but to provide the preconditions enabling her to meet him one day, if she so wishes.
The Government concede that the applicant was not invited to the meeting between the leading social welfare official, A.R. of Save The Children and the foster parents which resulted in the care plan underlying the access prohibition and secrecy order issued on 28 February 1994. The applicant could not be invited, since it was deemed necessary to conceal the foster parents' identity from him. He was also undergoing an examination of his mental state. Prior to that meeting he had nonetheless been heard in prison and had also been able to submit his written opinion to the Board. In the ensuing proceedings in which he challenged the access prohibition the County Administrative Court forwarded the adopted care plan to his counsel.
The Government also concede that the applicant was not heard in respect of Dr E.V.'s opinion to the Basic Welfare Board, since it did not comprise any new evidence. The applicant was nonetheless able to exercise all remedies available to him. Although he was not properly heard prior to the access prohibitions of 18 May 1994 and 27 September 1995, he was nonetheless able to appeal to the County Administrative Court and have those shortcomings repaired. Moreover, the Supreme Administrative Court considered that the Board's failure to hear the applicant prior to issuing the care order had been repaired by the ensuing proceedings before the administrative courts. In sum, the applicant was involved in the decision-making to a degree sufficient for the purposes of Article 8.
The applicant contends that the interference violated sections 19, 20, 24 and 25 of the Child Welfare Act. The authorities failed to make any efforts to co-operate with him and to assess continuously whether Y.'s public care remained justified. The applicant also disputes the legitimacy of the aim pursued by the authorities. Although Y.'s public care was said to aim at protecting her rights and freedoms, the access prohibition and other measures taken were excessive and did not protect her right to meet her biological father. In any case the measures taken were not grounded on relevant and sufficient considerations. The applicant's purported inexperience as custodian is based on mere allegations emanating from his late wife's relatives. The language barrier between the applicant and Y. could not justify her public care and the access prohibition, since at the outset Y. was not yet speaking and any subsequent language barrier was a result of her public care.
The Government's attempt to brand the applicant as a generally dangerous person is founded on mere allegations and is contradicted by evidence attesting to his exemplary conduct in prison. The authorities failed to consider any alternative to placing Y. in a Finnish foster family and aimed at her permanent foster care. This approach contravened the general principle under Article 8 that public care should be of temporary nature. Meetings would not have been impossible to organise, particularly as the low-security prison in which the applicant was detained from October 1996 onwards comprised an area designated for visits by family members. Once the applicant became entitled to prison leave, meetings could have taken place outside prison. Other forms of contact could not suffice to re-establish family life between the two. Because of those forms of contacts, however, the applicant was not a stranger to his child. In sum, the manner in which Y.'s care was implemented effectively deprived her of her right to maintain contact with her only surviving parent. The severing of their ties amounted to a collateral punishment which the social authorities were not competent to impose.
The applicant maintains that the differential treatment reserved for him was not justified. As conceded by the Government, the law in force at the relevant time did not provide any possibility for a man to care for his child during his pre-trial detention. No man detained on remand or serving a sentence has ever been allowed to care for his child in prison, whereas the argument that such care would jeopardise the child's development has not been used against female detainees. Only the Hämeenlinna womens' prison has a ward reserved for prisoners who care for their children in prison. In its opinion to the Supreme Administrative Court the Basic Social Welfare maintained its opposition to the applicant's request to care for Y. in prison with reference to his gender. He was thus discriminated against both in law and in practice on that basis, and also by virtue of his ethnic and religious background.
The applicant further contends that he was never formally heard by the social authorities, whether prior to the care order or in the elaboration of Y.'s foster care. This failure was of particular significance in view of the fact that the applicant is a foreigner, was detained in prison and had little knowledge of Finnish. Discussions initiated by a representative of a private association could not replace a formal procedure for ascertaining the applicant's views. When interviewed by such representatives he did not understand that these occasions were the only “hearings” he would receive.
The County Administrative Court's review of the care order could not repair the Basic Welfare Board's failure to hear the applicant before issuing its ordinary care order under section 17 of the Child Welfare Act. The Board simply decided that it was not necessary to hear him, although it had ample time to do so, as shown by the fact that it did hear relatives of Y.'s mother. The applicant's appeal could not have retrospective effect on Y.'s care and effectively limited his possibility of proposing alternative care solutions.
Finally, the applicant contends that the care plan was elaborated in variance with section 4 of the Child Welfare Decree, as he was neither present at the meeting for the elaboration of the care plan of 28 February 1994 or was otherwise consulted in a formal manner. The purported need to protect the foster parents' identity was never motivated. Even assuming that such a need did exist, the applicant's views should have been ascertained by a social worker and recorded in writing.
(a) The public care of Y. and the applicant's involvement in the decision-making
The Court has first examined the complaint under Article 8 of the Convention. It 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). Such an interference constitutes a violation of this provision unless it is "in accordance with the law", pursues one of the legitimate aims enumerated in Article 8 § 2 and can be regarded as "necessary in a democratic society”.
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. Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, 13.7.2000, § 169, to be published in Reports of Judgments and Decisions 2000-IX, and the aforementioned L. v. Finland judgment, § 122).
The margin of appreciation to be accorded to the national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see, e.g., see the Johansen v. Norway judgment of 7 August 1996, Reports 1996-III, p. 1003, § 64).
In the present case the placement of the applicant's daughter in public care no doubt interfered with his right to respect for his family life. The Court finds no indication that the care order, the decision to transfer her to a foster home or the prohibition on meetings between the applicant and Y. was not based on the Child Welfare Act. It can furthermore accept that these measures aimed at protecting the health and rights of Y. Neither can the Court find, in light of the case-file as a whole, that the social welfare authorities or the administrative courts overstepped their margin of appreciation in ordering and implementing those measures.
Summing up, the Court concludes that the Finnish authorities could reasonably consider it justified to place the applicant's daughter in public and foster care and to prohibit any meetings with the applicant. Accordingly, the interference with his 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.
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 applicant was involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests. In conducting its review in the context of Article 8 the Court may also have regard to the length of the local authority's decision-making process and of any related judicial proceedings (see, e.g., the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 25-29, § 64, and the aforementioned McMichael judgment, p. 55, § 87).
The Court notes that the applicant was not heard by the Basic Welfare Board or any of its official before the care order was issued in November 1993 or before the access prohibition was maintained in May 1994 and September 1995. The Supreme Administrative Court considered, however, that the failure to hear the applicant in the proceedings concerning the care order had been compensated for by the County Administrative Court's examination of his belated appeal. As regards the access prohibition maintained in May 1994, the County Administrative Court remitted the matter for a fresh consideration by the Board due to the latter's failure to hear the applicant. In the ensuing proceedings up to the Board's decision of February 1995 the applicant was able to put forward his views in writing. Even though the applicant was not able to comment on Dr E.V.'s opinion to the Board prior to its decision of September 1995, he was eventually able to present oral argument to the County Administrative Court and to examine Dr E.V. under oath.
In these circumstances the Court is satisfied that the applicant's possibility of obtaining a full examination of the various care alternatives and the grounds for the access prohibition was not so circumscribed as to exclude him from the decision-making process, in violation of his procedural rights under Article 8.
(b) Alleged discrimination in the enjoyment of rights under Article 8
The applicant has also complained that he has been discriminated against on account of his gender, ethnicity and religion in the exercise of his rights under Article 8. The Court does not find it established that the authorities and courts were unduly influenced by any of the aforementioned factors in their decision-making. Recalling also its considerations above with regard to the complaint under Article 8 alone, the Court therefore finds no indication that the applicant was discriminated against in the enjoyment of his right to respect for his family life.
For the reasons above, the Court concludes 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 applicant has further complained that he was denied a fair hearing in the proceedings regarding the care order and the access prohibition. He was not properly heard and in the care proceedings the Supreme Administrative Court also refused his request for an oral hearing. The legal aid granted to him for the proceedings concerning the access prohibition could not cover the costs which would have been incurred by an expert witness called to counter the opinion of Dr E.V., and the applicant could not afford to cover those costs and losses himself. The Basic Welfare Board was never ordered to pay his legal costs, although his appeals in the proceedings concerning the access prohibition were largely successful.
The applicant finally complains about the delay in the proceedings concerning the access prohibition, which influenced their outcome
The applicant invokes Article 6 of the Convention and Article 14 of the Convention read in conjunction with Article 6.
Article 6 § 1 reads in its relevant parts as follows:
“In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ...“
The Government recall their reservation to Article 6 § 1 of the Convention according to which the applicant had no right to an oral hearing before the County Administrative Court or the Supreme Administrative Court at the relevant times.
The Government further submit that the complaint is out of time in so far as it relates to the County Administrative Court's refusal of 21 November 1994 to order the Basic Welfare Board to pay the applicant's legal costs.
Recalling its arguments in respect of the complaint under Article 8, the Government submits that the proceedings were fair within the meaning of Article 6 § 1, since the Basic Welfare Board's procedural errors were corrected by the County Administrative Court.
The Government deny that the length of the proceedings regarding the access prohibition was unreasonable or that it had any influence on the outcome of those proceedings. The proceedings began with the order issued on 28 February 1994 and ended with the County Administrative Court's decision of 13 May 1996. They involved three examinations by the Basic Welfare Board and the County Administrative Court. The matter was complex and the conduct of the authorities was sufficiently expeditious. The Government has no misgivings regarding the applicant's conduct during the proceedings.
The applicant contends that the various proceedings were unfair. The Finnish reservation to Article 6 § 1 covers only the right to an oral hearing and implies that the right to procedural fairness must be guaranteed by other means. In the present case the absence of oral hearings before the administrative courts was not compensated for by an adequate procedure for hearing the applicant before the Basic Welfare Board.
Being indigent, the applicant could not call an expert of his own choosing to counter the opinion of Dr E.V., who had met neither Y. nor the applicant and relied solely on the information conveyed by Save The Children.
The applicant further maintains that the length of the proceedings was excessive, having lasted two years and seven months and having an irrevocable effect on a young child. The proceedings must be considered to have commenced on 11 November 1993, when Y. was placed in public care, and ended on 6 June 1996, when the applicant was notified of the County Administrative Court's decision of 13 May 1996. The length of the proceedings was excessive even as calculated by the Government. The various errors of the Basic Welfare Board and the County Administrative Court's delays in processing the applicant's appeal contributed to the length of the proceedings. Section 39 of the Child Welfare Act required, however, that child welfare matters be examined urgently.
(a) Absence of an oral hearing before the Supreme Administrative Court
In so far as the applicant complains of the absence of an oral hearing before the Supreme Administrative Court, 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 that court, in so far as the then Finnish laws did not provide such a right. The relevant part of the reservation was withdrawn as from 1 December 1996. In the present case the court proceedings concerning the care order 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 applicant an oral hearing in those proceedings. While it is true that the effect of the reservation was to deny him 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 1997-VIII, pp. 2925-2926, §§ 44 and 47).
It follows that this grievance is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3 of the Convention.
(b) Alleged unfairness of the proceedings
The Court has next examined the question of the fairness of the various proceedings. On this point the Government has argued that the complaint has been lodged belatedly in so far as it focuses on the County Administrative Court's decision of 21 November 1994 declining to order the Basic Welfare Board to pay the applicant's legal costs.
Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. The Court recalls that the application was introduced on 31 August 1995, which is more than a year after the County Administrative Court's aforementioned decision. It follows that the Government's objection must be accepted.
The Court has next examined the other aspects of fairness of the proceedings. It recalls that the admissibility of evidence is primarily a matter for regulation by national law and that, as a general rule, it is for the national courts to assess the evidence before them. The Court's task under the Convention is rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, e.g., Elsholz v. Germany, no. 25735/94, 13.7.2000, § 66, to be published in Reports 2000-IX). The right to a fair and adversarial trial means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party. In the context of care proceedings the lack of disclosure of vital documents is capable of affecting the ability of participating parents not only to influence the outcome of the proceedings but also to assess their prospects of making an appeal (see the aforementioned McMichael judgment, pp. 53-54, § 80).
The Court has found above that the applicant was sufficiently involved in the decision-making for the purposes of Article 8 of the Convention. For the reasons stated in that context, the Court finds no indication that the Basic Welfare Board's repeated failure to hear the applicant rendered the various proceedings unfair and thus contrary to Article 6 § 1.
The applicant has also complained that the legal aid granted to him could not cover the costs which would have been incurred, had he called an expert to counter the opinion of Dr E.V. in the proceedings regarding the access prohibition.
The Court recalls that the Convention does not guarantee legal aid in civil cases. Whilst Article 6 § 1 of the Convention guarantees to litigants an effective right of access to the courts for the determination of their civil rights and obligations, it leaves to the State a free choice of the means to be used towards this end. The institution of a legal aid scheme constitutes one of those means, but there are others such as, for example, a simplification of the procedure. However, Article 6 § 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance provides indispensable for an effective access to the court either because legal representation is rendered compulsory or by reason of the complexity of the procedure or of the case. Thus, in the case of Airey v. Ireland (judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26) the Court held that an indigent wife should have been provided with legal representation so as to enable her to bring proceedings in the Irish High Court for an order of judicial separation. The Court emphasised the complexity of the proceedings, the need to examine expert witnesses and the emotional involvement of the parties.
The Court notes that according to Finnish law in force at the relevant time, the costs and economic losses incurred by an expert or other witness testifying before a county administrative court were to be reimbursed by the State, provided he or she was summoned by the court itself. Any costs and losses incurred by a witness called by the applicant would have had to be covered by the applicant himself.
The Court notes, however, that the applicant never requested the County Administrative Court to summon an expert witness of its own motion. Had the court accepted his request to that effect, the costs and losses incurred by that expert would have been covered by the State. Neither did the applicant call a witness of his own choosing. In any case, it appears that his purported reason for not doing so, namely his not being able to cover the costs and losses incurred by such a witness, was not explained to the County Administrative Court prior its hearing. In such circumstances that court cannot be considered to have been obliged, for the purposes of Article 6 § 1, to summon a further witness of its own motion.
Accordingly, the Court finds no indication that the proceedings were unfair in that only Dr E.V. was heard as expert witness before the County Administrative Court.
The Court has next dealt with the applicant's complaint that the County Administrative Court, on 22 June 1995, declined to order the Basic Welfare Board to pay his legal costs, although it had quashed the Board's decision and remitted the matter for a fresh consideration.
The Court notes that the applicant had been granted legal aid to cover counsel's fees in the proceedings in question. He has not elaborated on the alleged effects which the County Administrative Court's refusal had on the fairness of those proceedings. The Court considers, moreover, that Article 6 § 1 does not guarantee, to a party who is successful in respect of the substance of a case, any absolute right to receive an order to the effect that his adversary must bear his legal costs.
In these circumstances the Court finds no indication that the County Administrative Court's refusal to order the Board to bear the applicant's legal costs was in violation of Article 6 § 1.
(c) Allegedly excessive length of the proceedings concerning the access prohibition
Turning to the proceedings regarding the access prohibition, the Court recalls that their duration is to be considered in the light of the criteria laid down in its case-law, in particular the complexity of the case, the conduct of the applicant and that of the relevant authorities. On the latter point, the importance of what is at stake for the applicant in the litigation has to be taken into account. A delay at some stage may be tolerated if the overall duration of the proceedings cannot be deemed excessive (see, e.g., Nuutinen v. Finland, no. 32842/96, 27.6.2000, § 110, to be published in Reports 2000-VIII).
In the present case the Court considers the proceedings in question to have commenced with the decision taken on behalf of the Basic Welfare Board on 28 February 1994. Whether they be considered to have ended with the County Administrative Court's decision of 13 May 1996 or with its notification to the applicant on 6 May 1996, they lasted over two years and two months and comprised three examinations by the Basic Welfare Board and the County Administrative Court. The Court is satisfied that the applicant cannot be blamed for the delay in the proceedings. As for the conduct of the authorities, the Court notes that the Basic Welfare Board's failure to hear the applicant properly prior to its decision of May 1994 resulted in the County Administrative Court's remittal of the case back to the Board for a fresh consideration. Although the reason for the initial failure to hear the applicant, i.e. his stay in a mental hospital at the relevant time, does not appear arbitrary, the delay caused thereby must be attributed to the authorities. A certain delay was also caused by the County Administrative Court, where the applicant's first and third appeal were each pending for about six months.
In the overall circumstances, however, and even in light of what was at stake for the applicant and his daughter, the Court does not find that the length of the proceedings was excessive. Accordingly, there is no indication of a violation of Article 6 § 1 in this respect either.
(d) Alleged discrimination in the enjoyment of rights under Article 6 § 1
The Court has finally examined the aforementioned grievances under Article 14 of the Convention in conjunction with Article 6 § 1. It finds no indication that the applicant was discriminated against in the enjoyment of his rights under the last-mentioned provision.
For the reasons above, the Court concludes that this part of the application must also be rejected, in part as being incompatible ratione materiae with the provisions of the Convention and in part as being manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.
3. The applicant also complains that he has been unable to influence the education and teaching of his daughter, in violation of Article 2 of Protocol No. 1. This provision reads as follows:
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
The Court has already recalled that under Article 35 § 1 of the Convention it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. It has not been shown that the applicant has put the substance of this grievance to the domestic authorities, either in the proceedings concerning the care order issued on 17 November 1994 or in a request that the care be terminated in pursuance of section 20 of the Child Welfare Act. In these circumstances the applicant has not exhausted the remedies available under Finnish law.
It follows that this part of the application must be rejected, in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Vincent Berger Georg Ress
M.C. v. FINLAND DECISION
M.C. v. FINLAND DECISION