This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It is subject to editorial revision.
In the case of L. v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Mr G. Ress, President,
Mr M. Pellonpää,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs N. Vajic,
Mr J. Hedigan,
Mrs S. Botoucharova, judges,
and of Mr V. Berger, Section Registrar,
Having deliberated in private on 8 June 1999 and on 30 March 2000,
Delivers the following judgment, which was adopted on the last-mentioned date:
The first applicant ("the applicant father") is the adopted son of the second applicant ("the applicant grandfather"). The applicants are Finnish nationals, born in 1965 and 1928 respectively. They are residents of the municipality of M., Finland. They were represented before the Commission by Ms A. Suomela of the Society for Family Rights in Finland (Perheen Suojelun Keskusliitto PESUE r.y.). The applicants' application was introduced on 7 September 1994 and was registered on 14 November 1994 under file no. 25651/94.
The Government, represented by Mr A. Kosonen, Co-Agent, Ministry for Foreign Affairs, submitted their observations on 7 January 1997, to which the applicants replied on 24 April 1997.
In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Fourth Section. The Chamber constituted within the Section included Mr M. Pellonpää, the judge elected in respect of Finland (Article 27 § 2 of the Convention and Rule 26 § 1 (a) of the Rules of Court), and Mr G. Ress, the Acting President of the Section and the President of the Chamber (Rules 12 and 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajic, Mr J. Hedigan and Mrs S. Botoucharova (Rule 26 § 1 (b)).
There appeared before the Court:
(a) for the Government
Mr H. Rotkirch, Ministry for Foreign Affairs, Agent,
Mr A. Kosonen, Ministry for Foreign Affairs, Co-Agent,
Ms C. Busck-Nielsen,
Ms P.-L. Heiliö,
Ms A. Liinamaa,
Mr J. Piha, Advisers;
(b) for the applicants
Mr J. Kortteinen,
Mr S. Heikinheimo, Counsel,
Ms A. Suomela, Adviser.
The Court heard addresses by them, and also their replies to questions put by the Court and by several of its members individually.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
(translation from Finnish)
"The County Administrative Court has earlier - 17 August 1992, 7 June 1994, 25 April 1995, 16 April 1996 and 26 September 1996 - considered the public care and restriction of the right of access in respect of the children. Later P. requested that the meetings be made less frequent. The meetings take place under supervision, and a closer examination of the suspected sexual abuse, which possibly took place before P. was taken into care, is not necessary in this connection. An oral hearing would most likely not bring to light any new evidence affecting the matter, which is why an oral hearing is manifestly unnecessary."
(translation from Finnish)
"P. and S., who are placed in a foster family, must be ensured a peaceful living environment.
The medical examination carried out in the child psychiatric clinic in the summer of 1996 revealed that [the applicant father] had abused P. sexually before she was taken into care. [He] has himself denied the accusations and thus tried to discredit the information given by his child. P. has said that she is nervous about the meetings and that she is happy with the present practice concerning the meetings, taking place four times a year under supervision in the home of the foster family. She has also said that she is not willing to visit her father at his present home. More frequent meetings, making the child nervous, endanger her development."
(translation from Finnish)
"P. and S., who are placed in a foster family, must be ensured a peaceful living environment, and the foster family must be able to look after them without disturbance.
More frequent meetings would not be in the best interest of the children, because grandparents still strongly object to the placement of the children in a foster family, and have expressed this in their letters to the children. The grandmother has also scared the children during an occasional meeting on 7 November 1998 by saying that the children had been kidnapped. The behaviour of the grandparents make the children confused and thus endangers their development.
P. said, in the child psychiatric clinic of the Central Hospital of S. in the summer of 1996 that [the second applicant] had abused her sexually before she was taken into care, and had also otherwise made her scared. P. has said that she does not want to see [the grandmother] and [the second applicant] at all."
(translation from Finnish)
"As regards the medical examination of [P.] which took place in the Central Hospital of S. in 1992, the National Authority for Medicolegal Affairs finds, in the light of the evidence available, that the examination in the hospital was justified. The child psychiatric examination since January 1992 was justified and the examination was mainly well organised.
The child psychiatric examination of [P.] both in the ward and in the clinic was to a large extent carried out with the usual methods of assessing extensively and profoundly the overall psychological development of the child.
On the whole the psychological examination of [P.] carried out by P.L. was extensive and carried out professionally. The methods used were appropriate. The investigation carried out does not show that the examination would not have been based on the null hypothesis.
However, the special question of possible sexual abuse of the child was not sufficiently taken into account in the examination of [P.] between 27 January and 5 March 1992, which is shown by the fact that there are relatively few patient documents concerning the examination in the ward and by the psychologist.
In the light of the evidence, the recommendation and the conclusions contained in the opinion given by Senior Physician H.L. on 12 March 1992 to the Social Welfare Board of K., can be considered appropriate. ...
...In the light of the evidence, the National Authority for Medicolegal Affairs firstly notes that observations had been made on the meetings between [P.] and her parents already in 1992 when she was examined in the ward. In the opinion of Senior Physician H.L. the finding of sexual abuse is not based on the symptoms of [P.] but on the information given by her. However, in this respect the reasons given in the opinion of H.L. could have been expressed somewhat more clearly.
It was not possible to video-tape or record in some other way the interview of [P.] concerning sexual abuse, because such information was not expected beforehand. ...
... The child psychiatric examination of [P.] was initiated in 1996 because of reasons other than suspicion of sexual abuse, as has been mentioned above. Therefore the examination was a usual psychological examination. Because it was impossible to predict in what direction the examination would turn, it was not possible at an early stage to take into account her rights or the consequences of information given by her, as regards the examination of sexual abuse. The observations given by the Psychologist P.L. to the National Authority for Medicolegal Affairs reveal that she had later informed [P.] in detail of what kind of measures would be taken as a result of the information given by her.
In the light of evidence the National Authority for Medicolegal Affairs in the first place notes that the clinical examination of [P.] carried out by a doctor on 5 September 1997 was justified and adequately documented.
The psychological examination of [P.] carried out by Psychologist P.L. was extensive and on the whole professional. The methods of examination used were appropriate.
According to the evidence the examinations were carried out by Senior Physician H.L. and Psychologist P.L. objectively, and there are no indications of pressure by child welfare authorities in respect of the results of examination.
[P.] has been examined for a long time in the ward of the Central Hospital of S., and the examination included a very profound child psychiatric examination on the basis of which it can be concluded that the recommendations and conclusions made by Senior Physician H.L. were also appropriate.
On these grounds the National Authority for Medicolegal Affairs finds that the complaint by Anu Suomela, Master of Social Sciences, does not give reason for further measures."
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The principles of the Child Custody and Right of Access Act and the Child Welfare Act
B. Assistance in open care
C. Taking a child into care and substitute care
D. The duration and termination of care
E. Custodians and their rights
F. The competence of the Social Welfare Board
"When the Social Welfare Board takes a child into care, it shall be empowered to decide on the child's care, upbringing, supervision, other welfare, and residence. The Board shall, however, make every effort to co-operate with the parents or other custodians of the child."
G. The right of access
H. Care plan
I. Child welfare authorities
J. Appeal in accordance with the Child Welfare Act
K. Other provisions on appeal
L. Interested parties and their rights
M. Supervision of the activities of child welfare authorities
N. Supervision of the activities of health care authorities
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE CONVENTION
"1. Everyone has the right to respect for his ... family life ... .
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
A. Whether there was an interference with the applicants' right to respect for their family life under Article 8 of the Convention
B. Were the intereferences justified?
1. "In accordance with the law"
Whilst it is true that no interference or decision can be considered to be "in accordance with the law", unless it complied with the relevant domestic legislation, the logic of the system for safeguarding rights established by the Convention sets limits upon the scope of the power of review exercisable by the Court in this respect. It is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law (see the Barthold v. Germany judgment of 25 March 1985, Series A no. 90, § 48).
2. Legitimate aim
3. "Necessary in a democratic society"
The Government underlined that the children were placed in the foster family. They have lived there since the beginning of 1992 and have become attached to and feel at home in the foster family. Indeed, S. was only eight months old when she was taken into care and does not remember having lived anywhere else.
The Government finally noted that in the present situation the right to respect for family life from the children's point of view means above all the right to live in the foster family which is their de facto family, and to live together. In this kind of a case the mutual family ties between a child who has been taken into care and her biological parents shall, as far as possible, be ensured in some other way than by reuniting the family into a physical entity, for example by visits and letters to the extent required and allowed by the interest of the child.
In so doing, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interest of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned (see the Olsson v. Sweden (no. 2) judgment of 27 November 1992, Series A no. 250, § 90), often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, for instance, the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, § 55; the above-mentioned Johansen judgment, § 64; and the decision of 8 February 2000 as to the admissibility of application no. 34745/97 in the case of Scott v. the United Kingdom, Third Section, unpublished).
The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake. 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 (the above-mentioned Johansen judgment, § 64).
It is against this background that the Court will examine whether the measures constituting the interferences with the applicants' exercise of their right to family life could be regarded as "necessary".
(a) The taking into care
(b) The refusal to terminate the care
The Court recalls that on 5 September 1994 the applicant father requested that the Social Welfare Board revoke the public care orders. On 29 November 1994 the Board, after having heard the father, rejected the request. On 25 April 1995 the County Administrative Court rejected the applicant father's appeal without holding an oral hearing. On 8 December 1995 the Supreme Administrative Court rejected the applicant father's request for an oral hearing and upheld the County Administrative Court's decision in regard to the justification of the care order.
The Court therefore concludes that the rejection of the applicant father's request of September 1994 satisfied the requirements of Article 8 paragraph 2. Nor does the failure of the authorities to terminate the care at a later date in the Court's view violate that Article. In this respect the Court, in addition, refers to its reasoning concerning the access restrictions and prohibitions below.
Accordingly, the continuation of the public care did not constitute a violation of Articles 8 and 13 of the Convention.
(c) The access restrictions and prohibitions
The Government noted that P. has wished that the contacts to the applicant father be reduced. She is not willing to see the parents of the applicant father at all. P. has also expressed her dislike over the letters sent by the grandparents. The Government emphasised that P. is now 14 years old. Taking account of her age, her wishes should be respected as far as possible. Accordingly, since the beginning of 1997 the meetings between the children and their father have, mainly because of P.'s wishes, taken place under supervision at the reduced level of four times a year in the foster family. Before that the applicant father had an increased access to the children once a month on the basis of the decision of 25 April 1995 by the County Administrative Board, but this strained P. too much. The latest decision of 16 December 1998 of restricting the right of access of the father to the children will remain in force until 31 December 2001.
The children had not met the applicant grandfather and his wife. The decision restricting this right of access will also remain in force until 31 December 2001.
The meetings between the children and their mother had regularly taken place in the foster home, in accordance with the care plan and mainly in accordance with the mother's wishes. At times the foster parents had taken the children to see their mother in the home of the grandmother, when the children had also been able to see their grandmother and uncle.
S., who was 8 years old, had recently been heard concerning her wishes about the contacts with her parents and other relatives. She had considered that the number of visits of her father should not be increased, but that the quality of these visits could be improved. She did not want to see the parents of her father at all.
The Court notes that while the applicant father's access has been considerably restricted, he has been able to meet the children regularly. Moreover, his right to see the children was increased by the County Administrative Court in 1995, only to be decreased again in the light of the child psychiatric examination suggesting sexual abuse of P. While such abuse has never been confirmed by a judicial finding, the Court concludes that the children's interest made it justifiable for the Finnish authorities to reduce the right of access of the applicant father.
In these circumstances the decisions concerning the applicant father's access can be regarded as fulfilling the principle of proportionality and therefore as necessary in a democratic society.
The applicant grandfather has been suspected of the sexual abuse of P. since the children were taken into care. Both children, P. and S., have later indicated that they do not wish to meet him at all. The applicant grandfather indeed has been denied any access to the children. While this restriction is very drastic even in case of a child/ grandparent relationship, the Court accepts that in the circumstances of the present case the national authorities could reasonably consider that restriction to be necessary in a democratic society.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
"In the determination of his civil rights and obligations ... , everyone is entitled to a ... public hearing ... "
The Government recalled that the County Administrative Court rejected the applicants' request by concluding that an oral hearing would most likely not bring to light any new evidence affecting the matter, and thus considered its arrangement manifestly unnecessary. In its detailed reasoning the court referred to the fact that it had dealt with the issues of public care and the restriction of the right of access in respect of the same children already six times, and that P. had requested that the meetings be made less frequent. The court also noted that the meetings took place under supervision, and that a closer examination of the suspected sexual abuse, which possibly occurred before P. was taken into care, was not necessary in this connection. According to the Government, it should be noted that the County Administrative Court had at its disposal all the relevant information concerning the matter. The applicants' submissions to the County Administrative Court were not capable of raising issues of fact and law pertaining to the access restrictions of such a nature as to require an oral hearing for their disposition.
The Court notes that the 17 March 1997 decision of the County Administrative Court was one among several court rulings concerning the facts of this case. While, for reasons relating to the Finnish reservation, the Court is only competent to deal with the lack of an oral hearing as regards the decision of 17 March 1997, it must take into account the previous court proceedings as a background to the issue before it (see, mutatis mutandis, the aforementioned Hokkanen judgment).
In this respect the Court notes that at no stage of the previous proceedings had there been an oral hearing. In view of this, the nature of the issues and of what was at stake for the applicants, the Court is not satisfied that there were exceptional circumstances which, in the light of the case-law referred to by the Government, would have justified dispensing with a hearing.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
"If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
The Government noted that the applicants had not sought any compensation for the alleged failure of the Government to comply with the requirements of Articles 6 and 13 of the Convention. Accordingly, no compensation could be awarded and, according to the constant case-law of the Court, the finding of a violation would in any case have constituted sufficient just satisfaction in this respect.
B. Costs and expenses
As to the applicants' own claim for costs and expenses, the applicants did not submit any documents or receipts indicating whether these expenses were really incurred and paid, and if so, whether these expenses related to the domestic or Strasbourg proceedings. The Government noted that it was for the Court to assess the amount of expenses incurred, having regard to the supporting documents produced. At any rate, the Government found the total sum somewhat excessive, and left it to the Court to decide on this point.
The Government noted that, according to the Court's case-law, an applicant's counsel cannot rely on Article 41 to claim just satisfaction on his or her own account. Whether the claim for costs and expenses requested by the Society for Family Rights in Finland fell within this category, was left by the Government to the Court's discretion. The Government, however, stated that neither this part of the claim relating reimbursement of costs and expenses included sufficiently detailed documents or receipts to verify whether these costs and expenses were really incurred and paid. Accordingly, the same principles presented by the Government in connection with the applicants' own claims above also applied to this claim. The Government also questioned the necessity to have two lawyers and Ms Suomela representing the applicants before the Court. At any rate, the Government found the total sum excessive. The Government left the final assessment to the Court's discretion.
Finally, the Government noted that the sums paid by the Council of Europe should be deducted from the possible reimbursement of costs and expenses.
Taking into account that the applicants' complaints have only been partially approved, the Court, making its assessment on an equitable basis, awards the applicants a total of FIM 35,000, in respect of the proceedings before the Commission and the Court and for domestics costs together with any relevant value-added tax, from which must be deducted the FRF 24,560.60 already received for legal fees from the Council of Europe by way of legal aid.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the present judgment in itself constitutes just satisfaction for any non-pecuniary damage;
(b) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, for legal fees and expenses, 35,000 (thirty-five thousand) Finnish marks less 24,560.60 (twenty-four thousand five hundred and sixty) French francs, 60 (sixty) centimes to be converted into Finnish marks at the rate applicable on the date of delivery of the present judgment;
(c) that simple interest at an annual rate of 10 % shall be payable from the expiry of the above-mentioned three months until settlement;
Done in English, and notified in writing on 27 April 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Georg Ress