K and T v Finland (app no 25702/94)
| Judgment Date | 12 July 2001 |
Human rights – Privacy – Family life – Applicants’ new-born child placed into emergency care on grounds of mother’s mental illness – Older child of first applicant also placed in emergency care – Both children later placed in normal care – Parental access restricted – Whether care orders and restrictions on access infringing right to family life – Whether applicants having effective remedy in domestic courts – European Convention on Human Rights, arts 8 and 13.
The first applicant, K, suffered from schizophrenia, with episodes of psychosis that resulted on a number of occasions in hospitalisation. From 1991 K cohabited with the second applicant, T, along with K’s son, M, who had been born in 1988. By 1992 M was exhibiting behavioural problems and K agreed to place him in voluntary care in a children’s home for three months. In 1993, K gave birth to another child, J, fathered by T. The authorities decided to place J in emergency care immediately after her birth, on the grounds that K was suffering from a serious mental illness and T would be unable to safeguard J’s development and safety at the same time as caring for K. The applicants were not informed of the decision in advance, due to fears that doing so might endanger K and her baby. Shortly afterwards, an emergency care order was made in respect of M, on similar grounds. The applicants were allowed access to their children, although there was a requirement that access by K should be supervised. The authorities subsequently decided to retain M and J in care in a children’s centre pursuant to the normal public care provisions. However, T took an active role in visiting and caring for J at the centre and later at home for several days a week, and he later obtained joint custody of J with K after proving his paternity. The children were subsequently placed in a foster home and access was permitted only once a month under supervision. Over a seven-year period, there were a number of reviews of the care provisions for J and M. On each occasion, it was decided to maintain the restrictions on parental access, despite objections. The applicants appealed to the domestic courts against those decisions, but were unsuccessful. Evidence was given on several occasions by an expert who considered that K’s illness would not prevent her from caring for her children at home and who noted that K had not been hospitalised since 1995. Meanwhile, in 1995, K had given birth to another child, which she and T had cared for at home ever since. K and T made an application to the European Court of Human Rights, contending that: (i) the authorities’ conduct was contrary to their right to family life under art 8 of the European Convention on Human Rights and Fundamental Freedoms; and
(ii) they did not have an effective remedy in the domestic courts, contrary to art 13. The Court found that there had been a breach of art 8 in the decision to take children into care and in the authorities’ failure to take proper steps to reunite the family. However, it found that there had been no breach of art 13. The case was then referred to the Grand Chamber at the request of the respondent state, which asked the court to reconsider only those matters in respect of which the Chamber had found there to be a violation of the Convention. Although it was accepted that there had been an interference with the art 8 right, the respondent contended that that interference had been justified on the grounds set out in art 8(2). The sole issue was whether it had been necessary in a democratic society. The respondent further questioned the scope of the family life enjoyed by T, on the basis that he was not the father of M, and had only obtained legal custody of J in August 1993.
Held – (1) The matter placed before the Grand Chamber on a referral was the whole case to be decided afresh, and was not limited to the serious question raised as a prerequisite for referral. Accordingly, the court would not limit its decision to those matters in respect of which a violation of the Convention had been found.
(2) It was established that the existence or otherwise of a family life, for the purposes of art 8 of the Convention, was a question of fact. Both K and T had lived in the same home as M until M’s voluntary placement in a children’s home, and, prior to J’s birth, had formed the clear intention of continuing their life together. That intention had extended to J upon her birth, and T had in fact cared for J for some time before he became her custodian in law. Accordingly, no distinction was to be drawn between the family life enjoyed by K and T.
(3) In deciding in each case whether interference with family life had been necessary, the court had to take into account varying perceptions as to appropriateness of intervention in different states, depending on such factors as traditions as to the role of the family and state. However, consideration of the best interests of the child was of crucial importance in every case. The national authorities had the benefit of direct contact with those concerned, and the task of the Court was not to substitute its own view as to the appropriate care of children, but simply to review the decisions actually taken. Further, there was a wide margin of appreciation accorded to the state in relation to decisions to take a child into care, due to the importance of protecting children. However, a stricter scrutiny was called for in respect of any further limitations, such as restrictions upon parental rights of access. Such limitations carried a danger that family relations between parents and children would effectively be curtailed. The orders relating to J and M had to be approached in the light of those considerations.
(4) In respect of emergency care orders, it would not always be possible to involve the parents in the decision-making process. However, the Court had to be satisfied that the national authorities had made a careful assessment of the impact of the proposed measure on parents and children, and that any possible
alternatives had been weighed. In the present case, it had been reasonable, in the case of J, for the authorities to consider that advance warning to K could have had dangerous consequences. However, the reasons were not sufficiently compelling to justify the extremely harsh measure of taking a new-born baby into public care at the moment of birth. The authorities had known of K’s problems for some time, so they hardly constituted an emergency and there was no suggestion that other possible protective measures had been considered. Although the reasons relied upon by the authorities were relevant, the order made was disproportionate and was not necessary in a democratic society. In relation to M, however, K and T had themselves recognised that K was unable to continue caring for her family. Moreover, the emergency care order had not had the same impact on the family, since M had already been physically separated from his family as a result of his voluntary placement. The authorities had accordingly been entitled to take exceptional action, for a limited period, in the interests of M. It followed that there had been a violation of art 8 in respect of J but not M.
(5) In relation to care orders, the authorities’ primary task was to safeguard the interests of the children. In the present case there was no reason to doubt that it had been open to the authorities to consider that placement of the children in public care was required given K’s serious mental illness and the social problems of the family. However, a care order was to be regarded as a temporary measure and any measures implementing it had to be consistent with the ultimate aim of reuniting the natural parents and the children, subject to the best interests of the child. In the present case, no serious or sustained effort had been made towards reunification. In seven years only one inquiry had been made in order to ascertain whether K and T would be able to bond with the children. The authorities should have re-examined the situation from time to time to see whether there had been any improvement in the family’s situation. Further, rare or non-existent contact between natural parents and children could progressively diminish, and eventually destroy, the possibilities of reunification. Accordingly, the authorities had breached art 8 by their failure to take sufficient steps to reunite the family.
(6) There had been no breach of art 13, since rights of appeal had been available to, and on many occasions exercised by, K and T against the decisions of the authorities, even though those appeals had in the event proved unsuccessful.
Cases referred to in judgmentCruz-Varas v Sweden (1991) 14 EHRR 1, [1991] ECHR 15576/89, ECt HR.
Gustafsson v Sweden (1996) 22 EHRR 409, [1996] ECHR 15573/89, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, (1995) 19 EHRR 139, [1996] 1 FLR 289, ECt HR.
Ireland v UK (1978) 2 EHRR 25, [1978] ECHR 5310/71, ECt HR.
Johansen v Norway (1996) 23 EHRR 33, [1996] ECHR 17383/90, ECt HR.
Marckx v Belgium (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECt HR.
McMichael v UK[1995] 2 FCR 718, 20 EHRR 205, ECt HR.
Olsson v Sweden (no 1) (1988) 11 EHRR 259, [1988] ECHR 10465/83, ECt HR.
Olsson v Sweden (no 2) (1992) 17 EHRR 134, [1992] ECHR 13441/87, ECt HR.
Vereinigung Demokratischer Soldaten österreichs and Gubi v Austria (1995) 20 EHRR 56, [1994] ECHR 15153/89, ECt HR.
ComplaintOn 26 October 1994 the applicant parents complained to the European Court of Human Rights alleging violations of arts 5, 6(3)(c), 8, 10, 12 and 13 of the European Convention of Human Rights and Fundamental Freedoms with respect to the Finnish authorities’ decision to take their new-born baby and five-year-old son into care and the subsequent failure to reunite the family. On 27 April 2000 the Chamber ([2001] 3 FCR 248) delivered its judgment in which it unanimously held that there had been a violation of art 8. On 24 July 2000 the...
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