K and T v Finland (app no 25702/94)
| Judgment Date | 27 April 2000 |
Human Rights – Right to respect for family life – Care proceedings – Removal of newborn baby into care – Five-year-old child voluntarily placed in children’s home also taken into care – Whether measures necessary in a democratic society – Whether continued implementation of care measures justified – European Convention on Human Rights, art 8.
On 18 June 1993 the applicant mother, who suffered from schizophrenia, gave birth to J. After the delivery, and in accordance with the social authorities’ prearranged plan, an emergency care order was served on the hospital prohibiting J being given to the mother. J was immediately placed in provisional public care on the grounds, inter alia, that the mother’s mental state had been unstable during the end of her pregnancy, and that the applicant father could not guarantee J’s development and safety. Three days later, the applicants’ five-year-old son, M, who had voluntarily been placed in a children’s home, was also placed in provisional public care for similar reasons. The Social Welfare Board prohibited all unsupervised access between the applicants and J and M. The applicants, who had no prior knowledge of the authorities’ plan, appealed against the decision to take the two children into care, but on 9 September and 11 November 1993 the County Administrative Court confirmed the care orders in relation to J and M respectively without a hearing, and the Supreme Administrative Court subsequently upheld those decisions. Thereafter both children were placed with the same foster parents, and the applicants’ access to them was restricted to monthly visits. On 14 March 1995 the Social Welfare Board rejected the applicants’ request that the care orders be revoked, and their subsequent appeals against the access restrictions were also rejected by the domestic courts. On 7 April 1995 a further child, R, was born to the applicants and apart from a short period of time in hospital after the birth, the applicant mother’s health had been stable and R had lived with them all the time, and had not been taken into care. The applicants complained to the European Court of Human Rights alleging, inter alia, that their right to respect for their family life under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) had been violated on account of the placement of M and J in public care.
Held – (1) Despite the margin of appreciation enjoyed by the national authorities in assessing the necessity of taking a child into care, the reasons given to justify the care orders in the instant case, namely the risks caused by the mother’s mental
health and disturbed behaviour, and the methods used in implementing those decisions, were excessive. Since M was already in a safe environment at the children’s home where he could be protected, and J was in the hospital where she could also be protected, the methods used were arbitrary and could not be justified in the circumstances. A care order was not the only option for securing the safety of J, and other measures should at least have been tried first. Furthermore, the possible threat of the mother’s psychotic behaviour, in the case of a forthcoming care order, could not justify the making of the order. The applicants were not given any chance of even beginning their family life with the newborn J, and they had not been informed in advance or involved at all by the authorities. It followed that the national authorities had exceeded the margin of appreciation, and that the measures taken could not, therefore, be regarded as necessary in a democratic society. Accordingly the taking of the children into public care constituted a violation of art 8 of the Convention.
(2) The question of whether the continued implementation of the care measures was justified had to be assessed in the light of the subsequent circumstances and their development. In that regard, it was observed that the applicants were still cohabiting and taking care of their youngest child, R, who had not been taken into care. Although the impossibility of reuniting the family was not at the outset clear, the authorities appeared to have firmly proceeded from a presumption of the need for long-lasting care and placement in a foster home. Indeed, the very manner of implementing the care order concerning J was arbitrary and not conducive to facilitating a normal bond with the mother and the child, and the applicants’ had had no access to her at all during the first days of her life. In all the circumstances of the case, it appeared that there was a lack of any effort to seriously consider the termination of public care, despite evidence of an improvement in the situation which had led to the care orders, and that amounted to such a lack of fair balance between the various interests involved so as to constitute a violation of art 8 of the Convention on that ground also.
Per Judge Pellonpää. The taking of the children into public care did not per se violate art 8 of the Convention, but the developments thereafter disclosed an attitude not compatible with the applicants’ right to respect for their family life guaranteed by that article.
(3) Although the restrictions on the applicants’ access to the children might have been unreasonably restrictive earlier, it could not now be overlooked that the children had been in public care for almost seven years. Accordingly, since the national authorities, within their margin of appreciation, might consider such restrictions necessary in the light of the present day interests of the children, there had been no violation of art 8 of the Convention in that respect.
Cases referred to in judgmentHokkanen v Finland[1995] 2 FCR 320, (1995) 19 EHRR 139, [1996] 1 FLR 289, ECt HR.
Johansen v Norway (1996) 23 EHRR 33, ECt HR.
Olsson v Sweden (no 1) (1988) 11 EHRR 259, ECt HR.
Olsson v Sweden (no 2) (1992) 17 EHRR 134, ECt HR.
Scott v UK[2000] 2 FCR 560, [2000] 1 FLR 958, ECt HR.
Vereinigung Demokratischer Soldaten österreichs and Gubi v Austria (1995) 20 EHRR 56, ECt HR.
ComplaintThe applicant parents complained to the European Court of Human Rights alleging a violation of art 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the Finnish authorities’ decision to take their new born baby and five-year-old child into care and to keep them in care. The facts are set out in the judgment of the European Court of Human Rights.
27 April 2000.
THE EUROPEAN COURT OF HUMAN RIGHTS (FOURTH SECTION)delivered the following judgment.
Procedure1. The case originated in an application (no 25702/94) against the Republic of Finland lodged with the European Commission of Human Rights (the Commission) under former art 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (the Convention).
The applicants, K and T, are Finnish nationals, born in 1964 and 1968 respectively. They are residents of the municipality of S, Finland. They were represented before the Commission by Ms A Suomela of the Society for Family Rights in Finland (Perheen Suojelun Keskusliitto PESUE ry). The application was introduced on 26 October 1994 and was registered on 17 November 1994 under file no 25702/94.
2. The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent state of its obligations under arts 5, 6(3)(c) and (d), arts 8, 10 and 12 taken either alone or together with art 13 of the Convention.
3. On 27 June 1996 the Commission decided to give notice of the application to the respondent Government and invited them to submit observations on the admissibility and merits of the application.
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.
4. On 4 March 1997 the Commission granted the applicants legal aid.
5. Following the entry into force of Protocol No 11 on 1 November 1998 and in accordance with the provisions of art 5(2) thereof, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
In accordance with r 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 (art 27(2) of the Convention and r 26(1)(a) of the Rules of Court) and Mr G Ress, the acting President of the Section and the President of the Chamber (rr 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 Vajiæ, Mr J Hedigan and Mrs S Botoucharova (r 26(1)(b)).
6. The applicants submitted further information to the Court on 25 January 1999, to which the respondent Government replied on 9 March 1999. The Government submitted further information on 26 May 1999.
7. On 23 March 1999 the Chamber decided to hold a hearing in camera on the admissibility and merits of the application.
8. On 11 May 1999 the President of the Chamber decided, in accordance with r 33, paras (3) and (4) of the Rules of Court, that all the documents in the case file should not be accessible to the public and that the identity of the applicants should not be disclosed. He also decided that the legal aid granted to the applicants shall continue in force for the purposes of their representation before the Chamber.
9. The hearing took place in camera in the Human Rights Building, Strasbourg, on 8 June 1999. 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...
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