CASE OF H.K. v. FINLAND
(Application no. 36065/97)
26 September 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of H.K. v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
Mr J. Casadevall
Mr G. Bonello,
Mr M. Pellonpää,
Mr R. Maruste,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 27 September 2005 and on 5 September 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
I. THE CIRCUMSTANCES OF THE CASE
B. Social welfare authorities' initial measures
C. Taking into public care through an emergency care order
D. Normal care order
“The examination of [H.] in the Family Advice Centre has come to an end ... . The examination results confirm the impression that the child has been sexually abused and that her development would be seriously jeopardised if she continued living with her father. In its opinion the Family Advice Centre recommends that the child be placed in public care in order to ensure her healthy development (appendix no. 5).
It is not possible to exclude possible abuse by providing open-care support measures.
Placing the child in public care is a precondition for ensuring that she receives care corresponding to her stage of development.”
“According to the evidence available, the conditions in the home of [H.] have seriously jeopardised her health and development. Open-care support measures have not been possible. The public care of [H.] and her placement outside her original home must be considered to be in her interests.”
“The examinations carried out on H. were initiated on account of 'the sexual games' with the father, of which the child had spoken to the day care nurse, and on account of H.'s frequent masturbation in day care, especially before taking a nap. Although masturbation is relatively usual at that age, it can no longer be considered to merely relate to the age of the child when it is so extensive and intense as described by the day care nurse, especially not where the masturbation is placed in the context of the child's description of 'sexual games' at home. In this light I find the initiation of the examinations concerning sexual abuse a justified measure. .... [Dr A - K.R's] questions [that were put to H.] were not leading although they tended to have an element of pressure given that they were repeated several times as the girl was unable to answer them. ... Whether the girl has undergone psychological tests, either projective tests or tests measuring the child's abilities, remains unclear. Also the contents of [H.'s] playing remain unclear. Thus, I cannot assess the quality of psychologist [J.K.'s] examinations. Pyschologist [M.R.] has met both parents, but the documents I have received do not disclose any detailed description of the contents of the discussions, thus preventing me from assessing also the quality of these discussions. With the exception of the interview carried out by child psychiatrist [A-K.R.], which I find appropriate, I cannot take a position on the nature of the examinations. ...The decision to take the child into public care was made in an appropriate manner by the social welfare authorities, considering that the father had proved to be the likely abuser of the child...”
“... Psychologist H.H. has carried out psychological examinations on both H. and her father. A written opinion has been given on account of these examinations. It indicates that H.H. had examined the father on two occasions and the child on one occasion. It is questionable especially in the context of suspected sexual abuse that the same psychologist tests both the suspect and the abused child. .... The examinations were carried out without consultation with those involved in the earlier examination, which in our opinion shows professionally unethical and inconsiderate conduct on the part of the examining psychologist. ....”
“Since an oral hearing was held before the County Administrative Court, there is no reason to hold one before the Supreme Administrative Court.
In view of the opinions already obtained there is no need to obtain an additional opinion.
For the reasons given in the County Administrative Court's decision and considering, moreover, the disturbed behaviour of [H.], the Supreme Administrative Court considers that the conditions stated in section 16 of the Child Welfare Act have been met as regards the public care order issued on 27 March 1995. Accordingly, and in view of the requests in the matter, the evidence obtained, and the legal provisions invoked by the County Administrative Court, there is no reason to amend its decision.”
E. Further changes in care providers and termination of public care
“According to M.R., the examining doctor of the Tampere university hospital, H. suffered from post-traumatic stress, inter alia, because of the abduction, and for the purpose of rehabilitation H. should be provided with a safe home-like growing environment. No suitable substitute family was found that could have taken the child, inter alia, because of the abduction threat by the father. A family home was found which has a home-like atmosphere and has long experience of the care of different children taken into public care. In the family both parents are at home, looking after the children.”
“... Having been taken into public care, [H.] was officially placed in a substitute family from 6 October 1995 to 6 October 1996. In reality she was a fugitive with her father from 6 November 1995 to 6 October 1996, when she was placed in a family support centre.
A doctor of the university hospital who examined [H.] after her escape journey considered that she should be provided with secure conditions resembling a home. Her individual nurse at the family support centre has considered the placing of H. in a substitute family to be in her best interests.
On the basis of the aforementioned and, in particular, given [H.'s] age and the fact that she will be beginning school, the decision to change the premises for implementing the public care ... has been in her best interests.”
“On 6 November 1995 [the applicant] abducted [H.], who had been placed in the care of the Board, and was hiding her at different locations until 6 October 1996. After the escape journey [H.] was diagnosed as suffering from various behavioural disturbances, a serious post-traumatic stress syndrome and adjustment difficulties. Throughout her public care it has been difficult to initiate cooperation between the social authorities and [the applicant]. According to the evidence presented, [H.] has adjusted well to the substitute home. In this situation the decision to maintain the public care has been in her best interests.”
“Section 17, subsection 1 of the Child Welfare Act provides that the Social Welfare Board must, whenever possible in view of the child's age and level of development, clarify his or her own wishes and opinion, and afford a child who has reached the age of twelve as well as his or her parents the opportunity to be heard, before a decision as to the child's placement in public care outside his or her home or as to whether to terminate such care. Considering that [H.] underwent examinations at the child psychiatric clinic of a university hospital and that, according to the results, she was suffering from a serious stress reaction and an adjustment difficulty, and considering that, according to [the Board's] decision of 21 May 1997 she had stated, after an introductory visit, that she was willing to move to the family home, although her opinion has later varied, her opinion has been clarified in accordance with the requirements of the aforementioned provision of the law.
Before the challenged decisions were reached the parties were afforded an opportunity to be heard. In the County Administrative Court an opportunity to be heard was provided and an oral hearing was held. The Supreme Administrative Court has further afforded the applicant an opportunity to consult all documents in the case. Accordingly, he has been provided with the material which has affected the decision.
Section 1 of the Child Welfare Act provides that a child is entitled to a secure and stimulating growth environment as well as to a harmonious and well-balanced development, and has a priority right to protection. Considering the evidence presented in respect of the reasons leading to the public care order, [H.'s] mental symptoms and the changes which have occurred in her life, the conditions for maintaining her public care and changing the premises of the care outside her home, as stipulated in sections 16 and 20 of the Child Welfare Act, existed at that stage. On these grounds and considering the reasons and legal provisions relied upon in the County Administrative Court's decision, there is no reason to amend the outcome of that decision.”
“It has been difficult to achieve cooperation and a treatment relationship at the ward, and no functioning cooperation relationship has emerged. ... The father has difficulties in processing H.'s situation at an emotional level and in seeing the burdening effects of the continuous ... trials on the child. He has repeatedly voiced mistrust towards the authorities and concerning the aims of and grounds for the treatment. Also his attitude towards H.'s individual therapy has changed from having been positive to being negative. Owing to this his acceptance of H.'s treatment has remained problematic ... H. needs long-term individual child psychiatric treatment and long-term cooperation between the family, medical staff and child welfare. ... The father's willingness to ensure the management of H.'s individual therapy has remained uncertain. Having regard to the above and to the evasive and distant nature of their interaction ... there are no preconditions for terminating the public care. ... The treatment will now be focusing on H.'s individual therapy. ... Interaction treatment at the ward will not be recommended for now. ...”
F. Access restrictions
“....we have on several occasions tried to fix consultations for the purpose of arranging meetings between you and H. but no progress has been made. The situation at present is that we have not made any decision on the restriction of the right of access but have agreed with the family home that you will be able to meet H. there. The frequency of meetings would be one visit per month, and you can directly agree with the family home on the most convenient dates for the meetings. ....”
G. The custody proceedings and other events
H. The criminal proceedings
... Taking into account the incriminating facts, the District Court does not find it established in a reliable manner that [the applicant] is guilty of aggravated sexual abuse of a child nor of sexually indecent behaviour towards a child. ...
Witness A.K. [the day carer] had made notes about H.'s behaviour in day care between 16 November 1994 and 12 January 1995. When A.K. was heard as a witness, she explained that by “bottom” she had meant “the genitals”. The notes contain entries made in 35 different days. According to the notes of A.K., H. had “tickled” her genitals on all those days, which had lasted from 15 minutes to one and half hours. ....
According to witness A-K.R., who is specialising in child psychiatry, ... a child's behaviour becomes sexually coloured after sexual abuse. Such children masturbate more than usual. The witness had earlier met only one child who had masturbated to the extent of the present one. Child psychiatric literature does not give for this extensive masturbation any explanations other than that the child has in some way been subjected to sexuality. The witness is of the view that the child has been subjected to behaviour which is inappropriate for a child, at least when she has clearly had pathological behaviour. .... The witness is not able to tell whether masturbation is something that the child has herself discovered, but it has clearly been indicated that it is something that she has in some way done together with the father. According to the witness, H. is a strong and determined child whose words are even more convincing than the words of children usually are. In the view of the witness, the most important report in the case are the notes made by the day care nurse. ....
Witness J.K., who worked as a psychologist at the Family Advice Centre, has stated that a girl masturbating is not necessarily a sign of incest that she has experienced. However girls, who have had some kind of sexual experiences, often show disturbed or excessive sexual behaviour. Excessive masturbation could be a sign of experiences other than sexual abuse, for example other kind of mental instability. There may be hyper or overactive children, distressed children or children showing this kind of behaviour without any explanations thereto. ...
II. RELEVANT DOMESTIC LAW AND PRACTICE
I. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 8 OF THE CONVENTION
Article 6 § 1 reads in relevant part:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... .”
Article 8 reads insofar as relevant:
“1. Everyone has the right to respect for his private and 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.”
A. The parties' submissions
1. The applicant
2. The Government
B. The Court's assessment
1. Relevant principles
“[W]hat ... has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as 'necessary' within the meaning of Article 8.” (see W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, pp. 28-29, §§ 62 and 64)
2. Application of these principles
(a) The taking into emergency care and normal public care
(b) Access restrictions
Accordingly, the Court finds that there has been a violation of Article 8 of the Convention in these respects.
Accordingly, there has been no violation of Article 8 of the Convention as regards these measures.
(c) The complaints under Article 6
II. 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 Court has no doubt that the violations of the applicant's right to respect for his family life must have caused him suffering and distress. Making an evaluation on an equitable basis, the Court therefore awards him EUR 5,000 as just satisfaction for non-pecuniary damage.
B. Costs and expenses
He also claimed reimbursement of the costs of counsel and an adviser in the Convention proceedings in the amount of EUR 12,300. The legal aid granted by the Council of Europe EUR 850 had not been deducted before arriving at that amount.
The Court finds that the claims for compensation have not been fully substantiated. It also reiterates that the application was declared only partly admissible. Having regard to all the circumstances and taking into account the sum received by way of legal aid from the Council of Europe, the Court awards the applicant EUR 13,000 (inclusive of value-added tax).
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage;
(ii) EUR 13,000 (thirteen thousand euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 26 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza