CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 septembre 2001

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Ress , President ,   Mr   A. Pastor Ridruejo ,   Mr   L. Caflisch ,   Mr   J. Makarczyk ,   Mr   I. Cabral Barreto ,   Mrs   N. Vajić ,   Mr   M. Pellonpää , judges , and Mr V. Berger , Section Registrar , Having regard to the above application introduced with the European Commission of Human Rights on 21 September 1995 and registered on 23   January 1996, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows:       THE FACTS The applicants are Finnish citizens, born in 1969 and 1963 respectively and resident in Helsinki. They are represented before the Court by Mr Matti Wuori, a lawyer in Helsinki. The respondent Government are represented by Mr Holger Rotkirch, Director-General for Legal Affairs in the Ministry for Foreign Affairs, and by Mr Arto Kosonen, Director in the same Ministry. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are partners and have two children: G., born in 1989, and J., born in 1994. While the family was living in Sweden in 1992 G. was placed in public care during the applicant mother’s arrest. Following the mother’s disappearance on her release the applicant father and G. went to Finland to look for her. On arrival in Finland the father was in a confused state of mind necessitating an examination at a psychiatric hospital. G. was taken into public care by means of an emergency order issued pursuant to section 18 of the Child Welfare Act ( lastensuojelulaki, barnskyddslag 683/1983) but this care was apparently not prolonged. The applicants later moved to Lahti, where the social authorities were monitoring the family from September 1992 onwards. On 11 January 1994 an official of the Social Welfare and Health Board ( sosiaali- ja terveyslautakunta, social- och hälsovårdsnämnden ) of Lahti decided to place G. in public care by an emergency order. The applicant had left a shelter in contravention of an agreed care plan and had taken G. to an unknown place. They returned to the shelter on 26 January 1994 but again left it a few hours later before the care order could be enforced. On 1 February 1994 the Social Welfare and Health Board confirmed the care order pursuant to section 16 of the Child Welfare Act and decided that G. be placed in a children’s home in Lahti. The Board found that she had been forced to live in an unsafe environment due to the applicants’ alcohol and drug abuse and their criminal behaviour. She had also had been exposed to, and frightened by, domestic violence. The parents had declined an offer of treatment against their drug abuse and had avoided co-operation with the social workers. In 1992 G. had been placed in a foster home in Sweden with the parents’ consent. The mother had later fetched her from there without giving advance notice. On 23 December 1993 the mother and G. had been forced to seek shelter in a home for abused women and children because of the father’s violent behaviour. The mother had not fully accepted the care plan drawn up by social workers and, on 27 January 1994, she had moved with G. to whereabouts unknown to the Board. The Board estimated that the public care would need to be long-lasting. The applicants appealed to the County Administrative Court ( lääninoikeus, länsrätten ) of Häme, arguing that their home conditions had improved and stating that they were no longer abusing drugs. On 7 April 1994 G. and the applicant mother were located by the authorities and G. was placed in the children’s home. On 11 April 1994 the applicants fetched her from there without permission and again disappeared. They were located in May 1994 but G. was not forcibly removed from the applicants, since the authorities feared the applicant father could turn violent. In July 1994 the applicants reached an agreement with social workers that G. would be placed in a foster family and not in the children’s home. Before handing G. over to the foster family the applicant mother again disappeared with her. On 7 September 1994 the County Administrative Court dismissed the applicants’ appeal against the care order. The applicant father’s further appeal to the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ) was dismissed on 22 March 1995. Meanwhile, on 17 September 1994, the applicants were located at the Central Hospital in Rovaniemi, where the mother was about to give birth to her second child. She had told hospital staff that she wished to leave the hospital with the baby immediately after the birth. In a decision of the same day the Social Director placed the new-born baby in public care by an emergency order. The two children were first cared for in the hospital which the applicant mother had left without indicating any contact address. On 19 September the baby was moved to a children’s home, whereas G. was placed in a foster family, whose whereabouts were not disclosed to the applicants. Access was prohibited until 31 March 1995. In upholding the access prohibition on 20 September 1994 the Board noted that in April 1994 the mother had fetched G. from a children’s home without permission and that the father had repeatedly threatened to take her away from there. The Board again referred to the applicants’ criminal behaviour and alcohol and drug abuse. On 22 September 1994 baby J. was placed in the same foster family and a similar access prohibition was issued on 4 October 1994. On 1 November 1994 the Social Welfare and Health Board replaced the emergency care order with an ordinary order and upheld the access prohibition. It noted that immediately after having delivered the baby the applicant mother had gone into hiding in order to evade enforcement of the care order concerning G. The applicants had been found guilty of different crimes and had been using alcohol and narcotic substances. In such circumstances they were incapable of ensuring J.’s healthy development and of providing her with a secure environment. The applicants had further refused services offered to them in order to deal with their alcohol problem. On 10 February 1995 the County Administrative Court dismissed the applicants’ appeals against the care order concerning J. and the access prohibitions issued in respect of the two children. The applicants’ further appeals were dismissed by the Supreme Administrative Court on 11   September 1995. On 21 March 1995 the Social Welfare and Health Board extended the respective access prohibitions until 31 March 1996, again without disclosing the children’s whereabouts. The applicants’ appeal was dismissed by the County Administrative Court on 22 August 1996. On 6 September 1995 the County Administrative Court rejected the applicant mother’s appeal against the respective access prohibitions prolonged in March 1995. On 20 March 1996 the Social Welfare and Health Board extended the respective access prohibitions until 31 March 1997, again without disclosing the children’s whereabouts. In regard to G. the Board noted, inter alia , a medical report dated 15 March 1995 concluding that she had been subjected to sexual abuse. It also noted that the father was serving a prison sentence and that the mother was corresponding with the children and sending them packages via the social authorities. On 22 August 1996 the County Administrative Court dismissed the applicants’ appeal against the respective access prohibitions, noting that they had been issued in view of the risk that the applicants might again attempt to remove the children from the foster home and go into hiding with them. According to the Government, the applicants have been convicted of various violent and drug-related offences, most recently in 1996. B.     Relevant domestic law The relevant legislation is outlined in the Court’s judgment in K. and T. v. Finland ([GC], no. 25702/94, §§ 94-136, ECHR 2001). Those provisions of particular relevance to the present case are described below. According to section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2). The care order must be forwarded to the administrative court for approval if a party opposes it and in certain other circumstances (section 17, subsection   2). If a child is in imminent danger for a reason stated in section 16 or is otherwise in need of an urgent care order and substitute care, the Social Welfare Board may take him or her into care without submitting the decision to the administrative court for approval (section 18). An emergency care order expires within 14 days of the decision unless a normal order under section 17 is requested during that period. Such an order must be made within 30 days, or on special grounds within 60 days of the emergency order. The child’s custodians, biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act ( hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section   17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties. According to section 47 of the Social Welfare Act ( sosiaalihuoltolaki, socialvårdslag 710/1982), a decision made by the Social Welfare Board is enforceable regardless of an appeal (a) if the decision requires immediate implementation; (b) if, for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; or (c) when the Social Welfare Board has ordered the decision to be enforced at once. According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child’s contacts with his or her parents and other close persons (subsection 2). According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree, the Social Welfare Board or the director of a children’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the children’s home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction. The care plan to be drawn up in respect of a child in public care shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved. Under the Social Welfare Act officials may not, without the consent of the person concerned or that of, for instance, his or her custodian, disclose personal and family information obtained in the performance of their duties. This duty of confidentiality does not prevent officials from disclosing information to those entitled to obtain it for the performance of their official duties (section 57). Thus the social welfare authorities are entitled to obtain, from a public body such as a municipal care centre, any material required for the performance of their duties (section 56). The confidentiality of patient records, as stipulated in the Act on the Status and Rights of Patients ( laki potilaan asemasta ja oikeuksista, lagen om patientens ställning och rättigheter 785/1992), may thereby be waived (section 13 of the said Act). A refusal to disclose information requested under section 56 of the Social Welfare Act constitutes an offence (section 58). The Child Welfare Act obligates the authorities to provide social welfare authorities with information not only in accordance with Section 56 of the Social Welfare Act but also actively and on their own initiative. According to section 40 of the Child Welfare Act, certain officials are under a duty to notify the social authorities immediately whenever a child appears to be in evident need of child welfare measures. Others may also notify the Social Welfare Board of similar suspicions. Under the Act on Publicity of Public Documents as in force at the relevant time ( laki yleisten asiakirjain julkisuudesta, lagen om allmänna handlingars offentlighet 83/1951) documents drawn up and issued by an authority, or which had been submitted to an authority and were still in that authority’s possession, were public (section 2, subsection 1). An exception to the rule of full publicity was made, inter alia , for medical and similar reports, which were accessible to the public only with the consent of the person they related to (section 17). The refusal of access to a document could be submitted for reconsideration by the authority refusing such access, following which there lay an appeal under the general rules for appeals against a decision of that authority. If no right of appeal existed under such general rules, an appeal could be lodged with the superior authority. If no such authority existed, an appeal against a state authority’s decision could be lodged with the Supreme Administrative Court. An appeal against a decision by another authority could be lodged with an administrative court (section 8, subsection 1). On 1 December 1999 the Act on Publicity of Public Documents was replaced by the Act on Publicity of the Activities of Public Authorities ( laki viranomaisten toiminnan julkisuudesta, lagen om offentlighet i myndigheternas verksamhet 621/1999) which provides for similar access and avenues of appeal. COMPLAINTS The applicants complain that their right to respect for their family life has been violated on account of their children’s placement in public care. Social workers violated their secrecy obligation by contacting the applicants’ friends, neighbours and relatives in the matter. In their decisions the authorities stated that the applicants had been found guilty of crime and had been abusing drugs and alcohol, although they had allegedly never been suspected, let alone convicted, of any crime relating to such abuse. Although their conditions had begun to improve, the authorities were describing them more and more negatively. The access prohibition, including the refusal to disclose their children’s whereabouts, was too rigid. Finally, receipt of packages and letters which the applicants have sent to the children apparently via the Board has not been acknowledged. The applicants invoke Article 6 § 2 as well as Articles 8 and 10 of the Convention. THE LAW 1.     The applicants have first complained that their right to respect for their family life was violated on account of their children’s placement in public care and its excessively rigid implementation. The Court will examine this complaint under Article 8 of the Convention which reads, as far as relevant, as follows: “1.     Everyone has the right to respect for his ... 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.” The Government submit that the complaint is manifestly ill-founded. The interference with the applicants’ right to respect for their family life was based on various provisions of the Child Welfare Act and the related Decree which are intended to protect the best interests of the children. The public care orders were grounded on reports by social welfare officials and a doctor, all recommending public care. The applicants’ family had been assisted by Swedish and Finnish social authorities during the two preceding years and the applicants’ views had become known to the authorities. As the applicants made themselves unavailable or failed to meet with social welfare officials in order to agree on the terms of the care plans, some of the care orders and access restrictions had to be issued without having heard them beforehand. In sum, however, the applicants were sufficiently involved in the decision-making process. The Government furthermore submit that the applicants’ strong opposition to the public care of their children and their failure to attend meetings with the social welfare officials have rendered it impossible to consider access arrangements. Moreover, the applicants’ contention that their conditions had improved was not substantiated and they failed to provide reliable information to the social authorities. Under the Finnish public care policy the biological parents remain the guardians and custodians even if their children are in public care. On reaching the age of majority, a child raised in a foster family may choose whether or not to create normal ties with the biological parents. The Government finally contend that all packages and other correspondence from the applicants have been delivered to the children. The applicants contend that various assertions by the Government have either remained unsubstantiated or are untrue. For example, the applicant mother has never served a prison sentence. Nor have the Government specified what allegedly misleading information the applicants provided to the social authorities. The applicant mother originally left the shelter home with G., since it had been unsuitable for a lengthier stay with a small child and officials had threatened to take G. away from her. The applicants further maintain that the policy of alienating the applicants’ children from them and postponing any contact until the children have become adults contravenes the purpose of Article 8 of the Convention. The severing of the biological family ties excludes any subsequent reunification of the family. Nor could the applicants effectively act as their children’s guardians and custodians without any meaningful contact with them other than through correspondence. Finally, the applicants contend that they have never seen the medical report of 15 March 1995 referred to by the Government. The Court recalls that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see, amongst others, the aforementioned K. and T. v. Finland judgment, § 151). The taking of a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child. In this regard a fair balance has to be struck between the interests of the child in remaining in the public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which may override those of the parent ( ibid ., § 178). An interference with a right guaranteed by Article 8 constitutes a violation of this provision unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”. The Court must also determine whether, having regard to the particular circumstances of the case and notably the importance of the decisions to be taken, the applicants were involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests (see, e.g., the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, § 64, and the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87). In the present case the placement of the applicants’ children in public care no doubt interfered with their right to respect for their family life. The Court finds no indication, however, that this interference was not based on the Child Welfare Act or did not aim at protecting the health and rights of the children. Neither can the Court find that the social welfare authorities or the administrative courts overstepped their margin of appreciation in issuing the public care orders as well as in implementing and upholding them. The Court places particular weight on 123/09/199923/02/1998 31/03/9811LB...M. PELLONPÄÄ40521/982 1E. and S. [Erkki and Satu VIHANTA]Finland4the applicants’ repeated violations of agreements and orders pertaining to G.’s placement outside their home as well as to their repeated disappearances following their removal of G. from such premises. As for the emergency care order issued in respect of the new-born J., the Court recalls that when such an order has to be made, it may not always be possible, because of the urgency of the situation, to associate in the decision-making process those having custody of the child. Nor may it even be desirable, even if possible, to do so if those having custody of the child are seen as the source of an immediate threat to the child, since giving them prior warning would be liable to deprive the measure of its effectiveness. The Court must however be satisfied that the national authorities were entitled to consider that there existed circumstances justifying the abrupt removal of the child without any prior contact or consultation with its parents or other carers. In particular, it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to taking the child into public care, was carried out prior to the implementation of a care measure (see the aforementioned K. and T. v.   Finland judgment, § 166). In the present case the applicants have not disputed that the applicant mother indicated to hospital staff her wish to leave with the new-born child immediately on having delivered it. When the emergency order had rendered it impossible for her to take J. along she left the hospital without the child and without providing any contact information. Noting also the applicants’ history of repeatedly removing their older child from premises and care agreed upon, the Court finds it reasonable for the competent authorities to believe that if the applicants had been forewarned of the intention to take their new-born child into public care, they would have removed their new-born from the hospital. Such an early removal from the maternity ward could have had dangerous consequences for the new-born. The Court has not overlooked that the taking of a new-born baby into public care at the moment of its birth is an extremely harsh measure. There must be extraordinarily compelling reasons before a baby can be physically removed from the care of its mother, against her will, immediately after birth as a consequence of a procedure in which neither she nor her partner has been involved ( ibid. , § 168). The Court is satisfied however that such reasons have been shown to exist in the present case in relation to the emergency order issued in respect of J. In all of the aforementioned circumstances the Court, moreover, does not find that the access prohibition concerning the children was such as to lack justification under Article 8 § 2 of the Convention. Summing up, the Court concludes that the Finnish authorities could reasonably consider it justified to place the applicants’ children in public care. Nor has it been shown that the implementation of that care was as such in violation of Article 8. Accordingly, the interference with the applicants’ rights can be considered proportionate to the legitimate aim pursued and thereby “necessary in a democratic society”. To sum up, the interference has been justified under Article 8 § 2 of the Convention. As recalled above, Article 8 also guarantees to parents the right to be involved, as fully as possible, in the decision-making, not least in a matter of such magnitude as involves the removal of their children from their care. The Court notes the applicants’ contention that they have never seen the medical report of 15 March 1995 referred to by the Government. This report was first mentioned in the Social Welfare and Health Board’s decision of 20 March 1996, when the prohibition on the applicants’ access to the children was prolonged. The Court finds no indication that the applicants sought to obtain a copy of this report and that they challenged any such refusal under the then Act on Publicity of Public Documents. In these circumstances the Court cannot conclude that the applicants were insufficiently involved in the decision-making leading up to their children’s placement in public care and the confirmation of those care orders by the administrative courts. The Court finds no indication that the social welfare officials’ disclosure of confidential material concerning the applicants and their family was in violation of Article 8 of the Convention. The possibility for a social welfare authority to forward such material for expert assessment was provided for by section 57 of the Social Welfare Act and there is no indication that the material was disclosed in violation of the secrecy obligation applicable to the authorities, officials and experts involved in the case. Finally, the Court finds no substantiation of the applicants’ allegation that correspondence from them did not reach their children in the foster home. It follows that this part of the application   must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.   2.     The applicants have further complained that various decisions of the social authorities wrongly imputed certain criminal behaviour to them. The Court recalls Article 6 § 2 of the Convention which provides as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” Under Article 35 § 1 of the Convention, however, the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. If no such decision exists, the period will begin from the event in question. The statements regarding the applicants’ alcohol and drug abuse and their criminal background were made in the Social Welfare and Health Board’s decisions of 1 February and 20 September 1994, whereas the application was introduced only in September 1995. In any case, the applicants or their counsel did not object to the statements in question in their subsequent submissions to the County Administrative Court. It follows that this complaint must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. For these reasons, the Court, by a majority, Declares the application inadmissible. Vincent Berger   Georg Ress   Registrar   President