L v Finland (app no 25651/94)
| Judgment Date | 27 April 2000 |
Human Rights – Right to respect for family life – Care proceedings – Children taken into care following allegations of sexual abuse – Restrictions imposed on parents and grandparents whilst children in care – Whether violation of right to respect for family life – Whether refusal to hold oral hearings violating right to a public hearing – European Convention on Human Rights, arts 6(1) and 8.
On 20 January 1992, after several years of open-care measures, the two children, P and S, were placed in provisional public care following allegations that P had been sexually abused by the paternal grandfather. Whilst those allegations were not corroborated by medical or psychological examinations, on 19 March 1992 the Social Welfare Board formally decided to place the children in public care on the grounds, inter alia, that the parents were incapable of providing them with the stimulation necessary for their growth and development. The parents’ access to the children was restricted to monthly visits at the foster home, and access between the paternal grandparents and the children was prohibited because they strongly opposed the foster placement, which had a disruptive effect on the children. The parents and grandparents’ requests that the public care orders be revoked, that oral hearings and inspections be held, and that the access restrictions be revoked, were refused by the domestic courts. The parents divorced in 1996 and later that year a psychological examination of P noted that she spontaneously described her sexual abuse by the father as well as the grandfather. On 3 December 1996, in the light of P’s desire to have less contact with her parents, the Board restricted contact to them to four times a year, and it continued to prohibit access with the grandparents. On 17 March 1997 the County Administrative Court upheld the Board’s decision, without holding an oral hearing as requested by the father and grandfather. The mother, who had joint custody of the children, now accepted the children’s stay in the foster home and she was not willing to allow them to be handed over to the father or grandparents. The father and grandfather complained to the European Court of Human Rights alleging a violation of their right to respect for their family life as guaranteed by art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights). They also contended, inter alia, that the refusal to hold an oral hearing in the proceedings breached art 6(1) of the Convention.
Held – There had been no violation of art 8 of the Convention in taking the children into, or in the continuation of, the public care. The children were taken into care following allegations of sexual abuse, and the decision had also been based on other
reasons, such as the parents’ incapacity to provide them with the necessary stimulation, and followed several years of open-care measures. In those circumstances there was no reason to doubt that the authorities could consider that the care in the foster home had better prospects of success than the continuation of the open-care measures. Thus the national authorities acted within the margin of appreciation afforded to them in such matters. The question of whether the continuation of the implementation of the care measures was justified had to be assessed in the light of circumstances and their development since 1992. In that regard, the parents had separated and did not constitute a family any more and the mother’s rights and interests also had to be taken into account. In those circumstances, the national authorities could, in the exercise of their discretion, consider the maintenance of the care order to be in the best interests of the children. In relation to the access restrictions and prohibitions, although the father’s access had been considerably restricted, he had been able to meet the children regularly. Moreover, his right to see the children was increased, only to be decreased again in the light of the examination in 1996 suggesting sexual abuse of P. Although the sexual abuse had never been confirmed by judicial finding, the children’s interest made it justifiable for the Finnish authorities to reduce the access of the father. In those circumstances, the decisions concerning the father’s access fulfilled the principle of proportionality and were necessary in a democratic society. The grandfather had been suspected of sexual abuse of P since the children were taken into care, and both later indicated that they did not wish to meet him at all. Whilst a denial of access was very drastic even in the case of a child/grandparent relationship in the circumstances of the present case the national authorities could reasonably consider that restriction to be necessary in a democratic society.
(2) The right to a ‘public hearing’ under art 6(1) of the Convention guaranteed an entitlement to an oral hearing unless there were exceptional circumstances that justified dispensing with such a hearing. Having regard to the lack of oral hearing in the proceedings prior to the hearing of 17 March 1997, the nature of the issues and what was at stake for the father and grandfather, there were no such exceptional circumstances existing in the present case. Accordingly, there had been a violation of art 6(1) of the Convention.
Cases referred to in judgmentAndersson v Sweden (1992) 14 EHRR 615, ECt HR.
Barthold v Germany (1985) 7 EHRR 383, ECt HR.
Fischer v Austria (1995) 20 EHRR 349, ECt HR.
Fredin v Sweden (no 2) (23 February 1994) Series A, no 283-A, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, (1995) 19 EHRR 139, [1996] 1 FLR 289, ECt HR.
Jacobsson v Sweden (no 2) (1998) Reports of Judgments and Decisions 1998-I, 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.
W v UK (1987) 10 EHRR 29, ECt HR.
ComplaintOn 7 September 1994 the applicants, the father and grandfather of two children, complained to the European Court of Human Rights alleging a violation of arts 6(1) and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) following the children being taken into, and then kept 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 25651/94) 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 (1952); Cmd 8969) (the Convention).
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 ry). The applicants’ application was introduced on 7 September 1994 and was registered on 14 November 1994 under file no 25651/94.
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 8, 6(3)(c) and (d) and 10 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(3) and 4 of the Rules of Court, that all the documents in the case file are inaccessible to the public in while, including the identity of the applicants. 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 in this case 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...
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