T.H. v. FINLAND
Doc ref: 19823/92 • ECHR ID: 001-45629
Document date: October 22, 1993
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 19823/92
T. H.
against
Finland
REPORT OF THE COMMISSION
(adopted on 22 October 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-11). . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 12-16) . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-112). . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 17-85) . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 86-112). . . . . . . . . . . . . . . . . . 9
a. The 1983 Act on Custody and Visiting
Rights with Regard to Children
(paras. 86-97). . . . . . . . . . . . . . . . 9
b. The 1898 Guardianship Act
(paras. 98-101) . . . . . . . . . . . . . . .13
c. The 1975 Act on the Enforcement of
Decisions Concerning Custody and Visiting
Rights with Regard to Children
(paras. 102-109). . . . . . . . . . . . . . .14
d. The 1889 Penal Code
(paras. 110-112). . . . . . . . . . . . . . .17
III. OPINION OF THE COMMISSION
(paras. 113-147) . . . . . . . . . . . . . . . . . . . .19
A. Complaints declared admissible
(paras. 113-114) . . . . . . . . . . . . . . . . .19
B. Points at issue
(para. 115). . . . . . . . . . . . . . . . . . . .19
C. Article 8 of the Convention
(paras. 116-146) . . . . . . . . . . . . . . . . .19
a. The existence of "family life" between
the applicant and S.. . . . . . . . . . . . .20
b. Whether there has been a lack of respect
for the applicant's family life . . . . . . .21
Conclusion
(para. 147). . . . . . . . . . . . . . . . . . . .24
D. Article 5 of Protocol No. 7
(paras. 148-150) . . . . . . . . . . . . . . . . .24
Conclusion
(para. 151). . . . . . . . . . . . . . . . . . . .24
E. Article 6 para. 1 of the Convention
(paras. 152-162) . . . . . . . . . . . . . . . . .24
Conclusion
(para. 163). . . . . . . . . . . . . . . . . . . .26
F. Article 13 of the Convention
(paras. 164-166) . . . . . . . . . . . . . . . . .26
Conclusion
(para. 167). . . . . . . . . . . . . . . . . . . .26
G. Recapitulation
(paras. 168-171) . . . . . . . . . . . . . . . . .26
SEPARATE OPINION OF MR. DANELIUS, JOINED BY MM. NØRGAARD,
JÖRUNDSSON, SOYER, REFFI AND CONFORTI . . . . . . . . . . . . . . .28
CONCURRING OPINION OF MR. ROZAKIS, JOINED BY MM. MARXER
AND CABRAL BARRETO. . . . . . . . . . . . . . . . . . . . . . . . .30
PARTLY CONCURRING AND PARTLY DISSENTING OPINION
OF MR. LOUCAIDES. . . . . . . . . . . . . . . . . . . . . . . . . .31
DISSENTING OPINION OF MM. TRECHSEL, WEITZEL AND SCHERMERS
AND MRS. THUNE. . . . . . . . . . . . . . . . . . . . . . . . . . .32
DISSENTING OPINION OF MR. SCHERMERS . . . . . . . . . . . . . . . .33
DISSENTING OPINION OF MRS. THUNE AND MR. PELLONPÄÄ. . . . . . . . .34
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .36
APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . . . .37
APPENDIX III : CALENDAR OF MEASURES TAKEN DURING THE
SECOND SET OF CUSTODY PROCEEDINGS. . . . . . . .53
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Finnish citizen born in 1953 and resident at
Jäniksenlinna. Before the Commission he is represented by
Mr. Heikki Salo, a lawyer practising in Helsinki.
3. The application is directed against Finland. The respondent
Government are represented by Ambassador Tom Grönberg, Director General
for Legal Affairs, Ministry for Foreign Affairs, Helsinki.
4. The application concerns the non-enforcement of court decisions
regarding the applicant's custody and visiting rights in respect of his
daughter S., the transfer of custody of S. from the applicant to S.'s
maternal grandparents and the length of custody proceedings. The
applicant complains under Article 6 para. 1 and Articles 8 and 13 of
the Convention as well as Article 5 of Protocol No. 7 to the
Convention.
B. The proceedings
5. The application was introduced on 10 April 1992 and registered
on 13 April 1992.
6. On 29 June 1992 the Commission decided to invite the parties to
submit written observations on the admissibility and merits of the
application. It further decided to give the application precedence.
7. The Government's observations were submitted on 10 October 1992
and the applicant's observations in reply on 10 November 1992.
8. On 23 October 1992 the Commission granted the applicant legal
aid.
9. On 9 February 1993 the Commission declared admissible the
applicant's complaints under Articles 8 and 13 of the Convention and
Article 5 of Protocol No. 7 as well as his complaint under
Article 6 para. 1 and Article 13 of the Convention regarding the length
of the second set of the custody proceedings. The remainder of his
complaints and the complaints introduced by the applicant in the name
of S. were declared inadmissible. The Commission also requested the
parties to submit further observations on the merits of the admitted
complaints.
10. Further observations on the merits were submitted by the
Government on 19 March and 28 September 1993 and by the applicant on
18 March, 22 April and 11 October 1993.
11. After declaring the complaints admissible, the Commission, acting
in accordance with Article 28 (b) of the Convention, also placed itself
at the disposal of the parties with a view to securing a friendly
settlement. Active consultations with the parties took place in
February and March 1993. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
13. The text of this Report was adopted on 22 October 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
15. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. The applicant is the father of S., born on 8 September 1983. On
30 April 1985 the applicant's wife, the mother of S., committed
suicide. According to the applicant, he then agreed with S.'s maternal
grandparents (hereinafter "R.N." and "S.N.") that they would
provisionally take care of S. until he had solved the problems caused
by the death, including a re-organisation of his farming activities
enabling him to resume the care of S. During this period S. spent the
weekends with the applicant.
18. According to the applicant, R.N. and S.N. demanded, in
November 1985, at a time when S. was staying with him, that S. come to
stay with them or otherwise S.N. would commit suicide. The applicant
complied. Soon thereafter he was informed by R.N. and S.N. that they
would not return S. Conciliation efforts involving the Social Welfare
Board (sosiaalilautakunta, socialnämnden) of Tuusula were unsuccessful.
19. On 9 December 1985 the applicant lodged a report with the Chief
of the Rural Police District of Tuusula who, in his function as Bailiff
(ulosottomies, utmätningsman), refused executive assistance and
directed him to institute enforcement proceedings before the County
Administrative Board (lääninhallitus, länsstyrelsen) of Uusimaa in its
function as Executor in Chief (ulosotonhaltija, överexekutor).
20. R.N. and S.N. subsequently brought an action against the
applicant before the District Court (kihlakunnanoikeus, häradsrätten)
of Tuusula, requesting that custody of S. be transferred to them.
21. On 28 January 1986 the action was dismissed, R.N. and S.N. having
been considered to lack locus standi.
22. In February 1986 the applicant requested the County
Administrative Board to take measures in order to have S. returned. In
an opinion submitted by the conciliator appointed by the Social Welfare
Board the circumstances in which the applicant lived were not found to
prevent such a return.
23. On 2 May 1986 the County Administrative Board rejected the
request, noting that S. had been staying with R.N. and S.N. with the
applicant's consent. Having regard to, inter alia, the time which had
elapsed from the moment when S. had been moved to stay with R.N. and
S.N., as well as to the interaction between S. and the applicant, the
Board considered that her return could be contrary to her interests.
The Board therefore directed both parties to institute custody
proceedings before the District Court.
24. Custody proceedings were instituted by both parties. Following
a hearing on 16 July 1986 the District Court decided to obtain the
Social Welfare Board's opinion. It further provisionally ordered that
S. was to stay with R.N. and S.N. and granted the applicant certain
visiting rights.
25. R.N. and S.N. refused to comply with the order insofar as it
granted the applicant visiting rights.
26. On 30 September 1986 the County Administrative Board ordered R.N.
and S.N. to comply with the order under penalty of administrative fines
(uhkasakko, vite) of 2.000 FIM each.
27. In a preliminary opinion of 28 October 1986 to the District Court
the Social Welfare Board considered it to be in S.'s interests to have
a relationship with both R.N. and S.N. and the applicant. It noted that
S.'s right to see her father had not been enforced, but found nothing
to prevent S. from continuing to stay with R.N. and S.N.
28. On 31 October 1986 the District Court held a further hearing and
again adjourned the case. The applicant was again granted provisional
visiting rights.
29. R.N. and S.N. refused to comply with the order.
30. In an opinion of 12 January 1987 to the District Court
Mr. Erkki Rutanen, a psychologist, considered that S. should be
returned to the applicant. According to the Centre, the contact between
the applicant and S. was mutual, namely through playing and
discussions.
31. On 14 January 1987 the applicant and S. met in the presence of
officials of the Child Guidance Centre (kasvatusneuvola, uppfostrings-
rådgivningen) of Central Uusimaa and R.N. and S.N.
32. On 21 January 1987 the County Administrative Board rejected the
applicant's request for execution of the District Court's order of
16 July 1986. It further found that, as his visiting rights had been
amended by the District Court on 31 October 1986, the order imposing
an administrative fine on R.N. and S.N. in case of non-compliance with
the earlier decision concerning visiting rights had ceased to be valid.
33. In an opinion of 22 January 1987 to the District Court the Child
Guidance Centre considered that custody of S. should remain with the
applicant. The opinion stated, inter alia:
(translation from Finnish)
"...
[R.N.'s and S.N.'s] negative attitude towards [the
applicant] as well as their frightening picture of the way
in which their daughter died prevent the development of a
normal relationship between [S.] and [the applicant] and
make S. fear [him]. [The applicant] can accept that [S.] is
fond of [R.N. and S.N.]. These, however, treat [her] in a
possessive way and view any attachment by [her] to [the
applicant] as a loss of [her]. For example, in one
situation subject to [our] investigation, where, apart from
both parties, three officials were present and no danger
could have been caused by [the applicant], [S.N.] 'tied'
[S.] to herself by preventing her from moving around freely
in the room and even from having eye-to-eye contact with
[the applicant].
On the basis of our investigations and our knowledge of
child and family psychology we conclude that [the
applicant] is better suited than [R.N. and S.N.] to provide
an environment supporting her healthy mental development
and that it is in her interests to live permanently with
[the applicant] ..."
34. In a final opinion of 23 January 1987 the Social Welfare Board
considered that custody of S. should remain with the applicant and that
she should live with him.
35. On 26 January 1987 the District Court confirmed the applicant's
custody of S. and ordered that she be handed over to him.
36. On 10 March 1987 the County Administrative Board ordered R.N. and
S.N. to comply with the District Court's decision of 26 January 1987
under penalty of administrative fines of 8.000 FIM each.
37. R.N. and S.N. persisted in their refusal.
38. On 6 May 1987 R.N.'s and S.N.'s appeal against the District
Court's decision was rejected by the Court of Appeal (hovioikeus,
hovrätten) of Helsinki.
39. On 7 May 1987 the County Administrative Board ordered R.N. and
S.N. to return S. to the applicant and to pay 2.000 FIM each of the
previously imposed fines.
40. On 13 May 1987 the applicant requested the Chief of the Rural
Police District of Järvenpää to execute the County Administrative
Board's decision.
41. On 20 May 1987 it was discovered that S. had been moved to an
unknown place.
42. On 29 May 1987 the applicant lodged a complaint with the
Chancellor of Justice (oikeuskansleri, justitiekanslern), alleging that
the authorities had failed to take sufficient measures in order to find
and return S.
43. On 23 June 1987 the Court of Appeal rejected R.N.'s and S.N.'s
appeal against the County Administrative Board's decision of
10 March 1987.
44. On 30 July 1987 the Supreme Court (korkein oikeus, högsta
domstolen) granted R.N. and S.N. leave to appeal against the decision
of the Court of Appeal of 6 May 1987 and ordered a stay of execution
of the decisions of 6 May and 23 June 1987 or, alternatively, that
execution be suspended.
45. On 17 May 1988 the Supreme Court rejected R.N.'s and S.N.'s
appeal and quashed the order for a stay of execution.
46. On 18 May 1988 the applicant requested the Chief of the Rural
Police District of Järvenpää to take measures in order to have S.
returned.
47. In the meantime, R.N. and S.N. requested a stay of execution and
an annulment of the Supreme Court's decisions of 17 May 1988.
48. On 10 June 1988 the applicant renewed his request of 18 May 1988,
this time to the Chief of the Rural Police District of Mäntyharju,
where S. had been found.
49. On the same day R.N. and S.N. requested the Social Welfare Board
to investigate whether the execution of the Supreme Court's decision
would be in S.'s interests. The matter was subsequently transferred to
the National Board for Social Welfare (sosiaalihallitus,
socialstyrelsen).
50. On 6 July 1988 the Chancellor of Justice found no reason to take
measures with regard to the applicant's complaint, as following the
County Administrative Board's decision of 7 May 1987 measures had
immediately been taken in order to have it executed. He further
referred to the subsequent order by the Supreme Court for a stay of
execution of the decisions of the Court of Appeal of 6 May and
23 June 1987 as well as R.N.'s and S.N.'s request for a stay of
execution of the Supreme Court's decisions of 17 May 1988.
51. On 13 September 1988 the Supreme Court rejected R.N.'s and S.N.'s
request for a stay of execution, as well as their request for an
annulment of the Supreme Court's decisions.
52. In the spring of 1989 the National Board for Social Welfare
ordered R.N. and S.N. to allow S.'s mental state and her attitude
towards the applicant to be investigated.
53. On 30 May 1990 the National Board recommended the Social Welfare
Board to take measures so as to have custody of S. transferred to R.N.
and S.N., to have the applicant granted visiting rights and to have
another person appointed S.'s guardian.
54. At the request of the Social Welfare Board the Guardianship Board
(holhouslautakunta, förmyndarenämnden) of Tuusula on 25 July 1990
submitted an opinion according to which the applicant had handled his
guardianship in a satisfactory manner. The Guardianship Board concluded
that the applicant should continue both as S.'s custodian and guardian.
55. On 13 August 1990 the Social Welfare Board requested the District
Court to transfer custody of S. to R.N. and S.N. Although considering
that the applicant was suitable to be responsible for S.'s upbringing
and that he could offer her a good home environment, the Board had
regard to the fact that S. had lived with R.N. and S.N. as from 1985.
The Board further noted that S.'s right to see the applicant had not
been enforced during her stay with R.N. and S.N. and therefore
requested that the applicant be granted visiting rights. It was finally
proposed that the applicant remain S.'s guardian.
56. The case was first before the District Court on
19 September 1990, but was adjourned, the Court having decided to
obtain an opinion from the Guardianship Board.
57. In a further opinion of 31 October 1990 the Guardianship Board
proposed that the applicant be dismissed as S.'s guardian.
58. On 14 November 1990 the District Court decided to obtain a
further opinion from the Child Guidance Centre (kasvatus-neuvola,
uppfostringsrådgivningen) of Central Uusimaa. S. was provisionally
ordered to stay with R.N. and S.N. and the applicant granted certain
visiting rights.
59. R.N. and S.N. refused to comply with the court order insofar as
it concerned the applicant's visiting rights.
60. On 20 December 1990 the applicant requested the County
Administrative Board to take measures to execute the court order.
61. On 1 January 1991 the Child Guidance Centre of Central Uusimaa
ceased to exist. Its functions were taken over by the Child and Family
Guidance Centre (perhe- ja kasvatusneuvola, familje- och uppfostrings-
rådgivningen) of Tuusula.
62. On 31 January 1991 the applicant renewed his request of
20 December 1990 to the County Administrative Board.
63. On 28 March 1991 the County Administrative Board ordered R.N. and
S.N. to comply with the court order of 14 November 1990 under penalty
of administrative fines of 5.000 FIM each.
64. R.N. and S.N. persisted in their refusal.
65. In an opinion of 7 May 1991 to the District Court the Child and
Family Guidance Centre of Tuusula confirmed the views submitted by the
Child Guidance Centre of Central Uusimaa in its opinion to the District
Court on 22 January 1987. It noted that R.N. and S.N. had refused to
participate in interviews for the purpose of carrying out a further
investigation, and that they had also refused to subject S. to such an
investigation. It further referred to a statement in the opinion of
13 December 1989 submitted by a working group of the Lastenlinna
children's hospital, according to which, although S. related to R.N.
and S.N. as her psychological parents, there were no mental obstacles
for her to meet the applicant, and that, on the contrary, such meetings
were in her interests.
66. On 8 May 1991 the District Court rejected the Social Welfare
Board's request of 13 August 1990.
67. Following separate appeals by R.N. and S.N. as well as the Social
Welfare Board, the Court of Appeal on 24 July 1991 ordered a stay of
execution of the District Court's decision of 8 May 1990.
68. On 25 September 1991 the Court of Appeal, by a majority, partly
quashed the District Court's decision and transferred custody of S. to
R.N. and S.N. The Court of Appeal found that there were particularly
weighty reasons for maintaining the factual care situation, as S. had
been living with R.N. and S.N. since 30 April 1985. It further noted
that according to the opinion of the children's hospital her most
important relationship was that with R.N. and S.N., that she conceived
their home as her own, that it was important that this relationship and
home environment should not be significantly changed, but that she
should be able to meet the applicant and create a realistic
relationship with him.
69. The Court of Appeal further had regard to the opinion of
7 May 1991 by the Child and Family Guidance Centre of Tuusula. The
Court finally noted that references had been made to S.'s own wish not
to see the applicant. However, having regard to her age and the fact
that she clearly had not been able to form such an opinion without
being affected by others, it found that no significant importance could
be attached to it.
70. The Court of Appeal further granted the applicant visiting
rights. During the first three months he and S. were to meet for four
hours the first Saturday of the month on premises chosen by the Social
Welfare Office of Tuusula and in the presence of an official of that
Office. Subsequently they were to meet the first and third weekends of
the month between Saturday 12.00 hrs and Sunday 12.00 hrs. In the
summer S. was to stay with the applicant for two weeks. S. was further
to spend Christmas 1991 with R.N. and S.N. Subsequently her stays
during special holidays were to rotate between R.N. and S.N. and the
applicant.
71. The Court of Appeal further considered that the applicant should
remain S.'s guardian.
72. On R.N.'s and S.N.'s appeal the Court of Appeal on
19 December 1991 quashed the Country Administrative Board's decision
of 28 March 1991 in view of the District Court's decision of 8 May 1991
whereby it had revoked its order of 14 November 1990.
73. On 21 January 1992 the Supreme Court rejected the applicant's
request for a hearing and refused the applicant leave to appeal.
74. On 22 June 1992 the applicant again lodged a request for
enforcement with the County Administrative Board, this time requesting
execution of the Court of Appeal's decision of 25 September 1991. He
referred, inter alia, to the fact that in 1991 all three meetings
planned between him and S. had failed, as R.N. and S.N. had refused to
bring S. to the meetings. They had further refused to respond to
attempts to arrange further meetings between the applicant and S.
75. In their submissions to the County Administrative Board R.N. and
S.N. argued that the applicant had himself broken off his family life
with S. already years ago and that coercive enforcement measures could
not be applied, as S. clearly objected to meeting the applicant.
They referred to an opinion by Ms. Anne Ketonen, a psychiatrist,
according to which the use of such measures in order to force S. to
meet her unknown father would contravene her interests. A further
expert opinion by Ms. Terttu Arajärvi, a professor of psychiatry, had
concluded that S. was at present unwilling to meet the applicant and
that this opinion was mature enough to be taken into account.
76. The applicant considered that the opinion of Ms. Ketonen was
inaccurate and unreliable and that the opinion of Ms. Arajärvi only
showed how much influence R.N. and S.N. had had and were having on S.'s
opinions, as S. had stated that she did not want to see the applicant
because she "did not like him". S. had seen the applicant most recently
at the meeting arranged by the Child Guidance Centre on 14 January
1987, during which, according to the opinion of the Centre of
22 January 1987 the contact between her and the applicant had been
mutual. Judging from Ms. Arajärvi's opinion, however, S. no longer
remembered her meeting with the applicant in 1987. Moreover, the Family
and Child Guidance Centre had concluded, as late as in May 1991, that
there were no mental obstacles to prevent S. from seeing the applicant
and that, on the contrary, such meetings were in her interests.
77. In response to the applicant's request for measures to be taken
by the Social Welfare Board of Järvenpää, now the competent local
authority, the Board on 25 June 1992 stated that the Child and Family
Guidance Centre of Järvenpää had offered R.N. and S.N. "an opportunity
to obtain assistance and to discuss the matter concerning visiting
rights". R.N. and S.N. had refused, however, to contact the Centre. The
Social Welfare Board referred to a letter from the Centre of
16 June 1992 according to which, in those circumstances, "nothing else
could be done by the Centre".
78. On 10 November 1992 the applicant renewed his request for
enforcement of 22 June 1992.
79. In response to the applicant's request of 22 June 1992 the County
Administrative Board on 31 December 1992 ordered R.N. and S.N. to
comply with the Court of Appeal's decision under a penalty of
administrative fines of 5.000 FIM each.
80. The County Administrative Board rejected the applicant's request
that S. be physically transferred from R.N. and S.N., as such a measure
could only be applied in order to enforce a custody decision. The Board
noted, however, that R.N. and S.N. had totally refused to co-operate
in order to let the applicant meet S. Considering S.'s age and R.N.'s
and S.N.'s strong influence on her opinions, S. could not be considered
so mature that her will should be taken into account.
81. The County Administrative Board had regard, inter alia, to an
opinion submitted by the conciliator appointed by the Social Welfare
Board of Järvenpää. The conciliator noted inter alia that R.N. and S.N.
had agreed to the applicant seeing S. in their home. The applicant,
however, had categorically refused to have anything to do with R.N. and
S.N. The conciliator had met S., but only in the presence of R.N. and
S.N., as she had refused to talk to the conciliator in private. When
questioned about the father, S. had become very reserved. She had,
however, objected to meeting the applicant. The conciliator concluded
that S.'s opinion should be taken into account.
82. The Board's order was appealed against by R.N. and S.N.
83. R.N. and S.N. subsequently refused to bring S. to a meeting
between her and the applicant planned by the Social Welfare Board of
Järvenpää for 3 April 1993.
84. On 2 September 1993 the Court of Appeal held a hearing regarding
R.N.'s and S.N.'s appeal against the County Administrative Board's
decision of 31 December 1992.
85. At present the applicant cohabits with a woman, with whom he has
two children.
B. Relevant domestic law
a. The 1983 Act on Custody and Visiting Rights with Regard to
Children (laki 361/83 lapsen huollosta ja tapaamisoikeudesta, lag
361/83 ang. vårdnad om barn och umgängesrätt)
86. Chapter 1, Section 1, para. 1 reads:
(Finnish)
"Lapsen huolto. Lapsen huollon tarkoituksena on turvata lapsen
tasapainoinen kehitys ja hyvinvointi lapsen yksilöllisten
tarpeiden ja toivomusten mukaisesti. Huollon tulee turvata
myönteiset ja läheiset ihmissuhteet erityisesti lapsen ja hänen
vanhempiensa välillä."
(Translation)
"Custody of a child. The aim of custody of a child is to ensure
the child's balanced development and well-being, having regard
to the special needs and wishes of the child. Custody shall
[further] ensure positive and close relationships, in particular
between the child and his or her parents."
87. Section 2, para. 1 reads:
(Finnish)
"Tapaamisoikeus. Tapaamisoikeuden tarkoituksena on turvata
lapselle oikeus pitää yhteyttä ja tavata vanhempaansa, jonka
luona lapsi ei asu.
(Translation)
"Visiting rights. The aim of visiting-rights is to ensure the
right of the child to keep contact with and see that parent, with
whom the child is not living."
88. Section 3 reads:
(Finnish)
"Lapsen huoltajat. Lapsen huoltajia ovat hänen vanhempansa tai
henkilöt, joille lapsen huolto on uskottu.
Lapsen huolto päättyy, kun lapsi täyttää kahdeksantoista vuotta
tai sitä ennen menee avioliittoon."
(Translation)
"The custodians of a child. The child's custodians are his or
her parents or [other] persons to whom care of the child has been
entrusted.
Custody of a child ends when the child reaches the age of
eighteen or, prior to that, gets married."
89. Section 4, para. 3 reads:
(Finnish)
"Huoltaja edustaa lasta tämän henkilöä koskevissa asioissa,
jollei laissa ole toisin säädetty."
(Translation)
"The custodian represents the child in his or her personal
matters, unless otherwise prescribed by law."
90. Chapter 2, Section 6, para. 1 reads:
(Finnish)
"Huoltajat lapsen syntymän perusteella. Lapsen vanhemmat, jotka
lapsen syntyessä ovat avioliitossa keskenään, ovat kumpikin
lapsensa huoltajia. ..."
(Translation)
"Custodians on the basis of the child's birth. The parents of a
child who are married to each other when the child is born are
both the custodians of the child ... ."
91. Section 9, para. 1 reads:
(Finnish)
"Tuomioistuimen päätös lapsen huollosta ja tapaamisoikeudesta.
Tuomioistuin voi päättää,
...
4) että lapsen huolto uskotaan vanhempien ohella tai sijasta
yhdelle tai useammalle henkilölle, joka on antanut tähän
suostumuksensa;
5) että lapsella on oikeus pitää yhteyttä ja tavata
vanhempaansa, jonka luona lapsi ei asu."
(Translation)
"The court's decision regarding custody and visiting-rights. The
court may decide,
...
4) that custody of the child shall be entrusted to one or
several persons having consented to this, either together with
or instead of the parents;
5) that the child shall have the right to keep contact with
that parent, with whom it is not living."
92. Section 9, para. 2 reads:
(Finnish)
"Jos vanhemmat tai toinen heistä ovat lapsensa huoltajia, voi
tuomioistuin uskoa lapsen huollon 1 momentin 4 kohdan mukaisesti
vanhempien sijasta yhdelle tai useammalle henkilölle vain, jos
tähän on lapsen kannalta erittäin painavia syitä."
(Translation)
"If the parents are or one of the parents of the child is the
child's custodian[s], the court can entrust custody to one or
several persons other than the parent[s] in accordance with
para. 1 no. 4 only if, from the child's point of view, there are
particularly weighty reasons for this."
93. Section 9, para. 4 reads:
(Finnish)
"Tuomioistuimen on ratkaistessaan lapsen huoltoa ja
tapaamisoikeutta koskeva asia otettava huomioon lapsen etu ja
lapsen omat toivomukset siten kuin 10 ja 11 §:ssä säädetään."
(Translation)
"When deciding a matter concerning custody and visiting-rights
with regard to a child, the court shall consider the interests
and wishes of the child according to what is stated in
Sections 10 and 11."
94. Section 10, para. 1 reads:
(Finnish)
"Huoltoa ja tapaamisoikeutta koskevan asian ratkaiseminen. Lapsen
huoltoa ja tapaamisoikeutta koskeva asia on ratkaistava ennen
kaikkea lapsen edun mukaisesti. Tässä tarkoituksessa on
erityisesti kiinnitettävä huomiota siihen, miten huolto ja
tapaamisoikeus parhaiten toteutuvat vastaisuudessa."
(Translation)
"Decisions regarding custody and access. Decisions concerning
custody and access with regard to a child shall be based
primarily on the interests of the child. Particular regard shall
be had to the optimal implementation of custody and visiting-
rights in the future."
95. Section 11 reads:
(Finnish)
"Lapsen toivomusten ja mielipiteen selvittäminen. Lapsen huoltoa
ja tapaamisoikeutta koskevassa asiassa on selvitettävä lapsen
omat toivomukset ja mielipide sikäli kuin se on lapsen ikään ja
kehitystasoon nähden mahdollista, jos vanhemmat eivät ole asiasta
yksimieliset, jos lapsi on muun henkilön kuin huoltajansa
hoidettavana taikka jos tätä muutoin on pidettävä lapsen edun
kannalta aiheellisena.
Lapsen mielipide on selvitettävä hienovaraisesti ja ottaen
huomioon lapsen kehitysaste sekä siten, että tästä ei aiheudu
haittaa lapsen ja hänen vanhempiensa välisille suhteille."
(Translation)
"The investigation of the child's wishes and opinion. In a matter
concerning custody and visiting-rights with regard to a child the
child's own wishes and opinion shall, if possible, be obtained,
having regard to the child's age and maturity and provided the
parents are unable to reach an agreement, if the child is being
cared for by someone else than its custodian or if, for some
other reason, consultation shall be regarded as necessary in the
interests of the child.
The child's opinion shall be obtained tactfully, having regard
to its stage of maturity and without causing harm to the
relations between the child and its parents."
96. Chapter 3, Section 17, paras. 1 - 2 read:
"Väliaikaiset määräykset. Kun lapsen huoltoa tai tapaamisoikeutta
koskeva asia on vireillä tuomioistuimessa, voi tuomioistuin antaa
väliaikaisen määräyksen siitä, kenen luona lapsen tulee asua ja
tapaamisoikeudesta sekä tapaamisen tai luonapidon ehdoista. Jos
tähän on erityistä syytä, tuomioistuin voi määrätä, kenelle
lapsen huolto uskotaan, kunnes asiasta lopullisesti päätetään.
Tuomioistuimen antamaan väliaikaiseen määräykseen ei saa hakea
muutosta."
(Translation)
"Provisional orders. When a custody or access matter is pending
before a court of law, the court may issue an interim order as
to where the child should live, the right of access and the
conditions attached thereto. For special reasons the court may
also issue an interim order as regards custody.
No appeal lies against an interim order."
97. Chapter 4, Section 19 reads:
"Lainvoimaa vailla olevan päätöksen täytäntöönpano. Tuomio-
istuimen päätös lapsen huollosta tai tapaamisoikeudesta ja siitä,
kenen luona lapsen tulee asua, voidaan panna heti täytäntöön,
vaikka se ei ole saanut lainvoimaa, jollei päätöksessä ole toisin
määrätty."
(Translation)
"The enforcement of a decision which has not acquired legal
force. A decision pertaining to custody of or visiting-righits
with regard to a child, or ordering a child to live with someone,
is immediately enforceable without having acquired legal force,
provided otherwise is not stated in the decision."
b. The 1898 Guardianship Act (holhouslaki 34/1898, lag 34/1898
angående förmynderskap)
98. Chapter 2, Section 16, as amended by Act no. 368/83, reads:
(Finnish)
"Vajaavaltainen on henkilö, joka ei ole täyttänyt kahdeksaatoista
vuotta (alaikäinen) ... ."
(Translation)
"A minor is a person under eighteen years of age ... ."
99. Chapter 3, Section 23, para. 1, as amended by Act no. 368/83,
reads:
(Finnish)
"Alaikäisen holhoojia ovat hänen huoltajansa, jollei toisin ole
päätetty ... ."
(Translation)
"The custodians of a minor shall be his or her guardians, unless
otherwise has been decided ... ."
100. Chapter 4, Section 33, as amended by Act no. 368/83, reads:
(Finnish)
"Holhoojan tulee hoitaa vajaavaltaisen omaisuutta sekä
edustaa vajaavaltaista hänen omaisuuttaan koskevissa asioissa.
Tässä tehtävässään holhoojan tulee tunnollisesti pitää huolta
vajaavaltaisen oikeuksista ja edistää vajaavaltaisen parasta."
(Translation)
"The guardian shall take care of [the minor's] possessions and
represent him or her in matters concerning those possessions. In
this task the guardian shall conscientiously safeguard [the
minor's] rights and promote [his or her] interests."
101. Section 37, as amended by Act no. 368/83, reads:
(Finnish)
"Holhoojan on kuultava vajaavaltaista asiassa, jota
vajaavaltaisen kannalta on pidettävä tärkeänä. Kuuleminen ei
kuitenkaan ole tarpeen, jos vajaavaltainen ei kykene ymmärtämään
asian merkitystä."
(Translation)
"The guardian shall hear [the minor] in matters of importance
from [the minor's] point of view. [This] is not necessary, if
[the minor] is unable to comprehend the meaning of the matter."
c. The 1975 Act on the Enforcement of Decisions Concerning Custody
and Visiting Rights with Regard to Children (laki 523/75 lapsen
huollosta ja tapaamisoikeudesta annetun päätöksen täytäntöönpanosta,
lag 523/75 om verkställighet av beslut som gäller vårdnad om barn och
umgängesrätt)
102. Section 1, as amended by Act no. 366/83, reads:
(Finnish)
"Päätöksellä tarkoitetaan tässä laissa tuomioistuimen antamaa
päätöstä ja väliaikaista määräystä ... .
Tämän lain säännöksiä lapsen huollosta annetun päätöksen
täytäntöönpanosta on soveltuvin osin noudatettava myös pantaessa
täytäntöön päätöstä, jossa on määrätty kenen luona lapsen tulee
asua sekä päätöstä lapsen luovuttamisesta huoltajalleen."
(Translation)
"A decision under this Act refers to a decision or an interim
order by a court ...
The provisions of this Act regarding the enforcement of a
decision regarding custody of a child shall also be applied,
mutatis mutandis, when enforcing a decision ordering that a child
should live with someone and a decision ordering that a child
shall be handed over to its custodian."
103. Section 4, as amended by Act no. 366/83, reads:
(Finnish)
"Ennen asian ratkaisemista ulosotonhaltijan on annettava
sosiaalilautakunnan määräämän tai muun sopivaksi katsomansa
henkilön (sovittelija) tehtäväksi järjestää sovittelu päätöksen
täytäntöönpanemiseksi.
Sovittelun tarkoituksena on saada se, jonka huostassa lapsi on,
vapaaehtoisesti täyttämään, mitä päätöksessä on määrätty.
Sovittelua ei ole määrättävä toimitettavaksi, jos aikaisemmin
toimitetun sovittelun perusteella on ilmeistä, että sovittelu jää
tuloksettomaksi taikka jos lapsen etu vaatii, että lapsen
huollosta annettu päätös on painavista syistä pantava heti
täytäntöön."
(Translation)
"Before deciding the matter the Executor in Chief shall assign
a person appointed by the Social Welfare Board or another
suitable person (conciliator) to mediate [between the parties]
so as to have the decision enforced.
The aim of the mediation is to have the person taking care of the
child to voluntarily fulfil his obligation as stated in the
decision.
Conciliation shall not be ordered, if it is evident from previous
conciliation that it would be unsuccessful or if it is in the
child's interest that a decision regarding custody should, for
weighty reasons, be enforced immediately."
104. Section 5 reads:
(Finnish)
"Päättäessään täytäntöönpanosta ulosotonhaltija voi asettaa
uhkasakon tai, milloin on kysymys lapsen huollosta tai
luovuttamisesta huoltajalle, määrätä ulosottomiehen noutamaan
lapsen."
(Translation)
"When deciding on the enforcement the Executor in Chief may order
that the decision shall be enforced under penalty of an
administrative fine or, when [it] relates to custody of a child
or the handing over of a child to its custodian, order the
Bailiff to physically transfer the child."
105. Section 6, as amended by Act no. 366/83, reads:
(Finnish)
"Jos lapsi on täyttänyt 12 vuotta, täytäntöönpanoon ei saa ryhtyä
vastoin lapsen tahtoa. Sama on voimassa 12 vuotta nuorempaankin
lapseen nähden, jos lapsi on niin kehittynyt, että hänen
tahtoonsa voidaan kiinnittää huomiota."
(Translation)
"If the child is twelve years of age, enforcement shall not take
place contrary to its will. The same applies if a child under
twelve years of age is so mature that regard can be had to its
will."
106. Section 7, para. 2 reads:
(Finnish)
"Ulosotonhaltijan on päätöksessään mainittava ne seikat, joiden
perusteella hakemus on hylätty. ..."
(Translation)
"The Executor in Chief shall in its decision state the
circumstances warranting the refusal [of enforcement]. ..."
107. Section 8, para. 1, as amended by Act no. 366/83, reads:
(Finnish)
"Jos lapsi on jonkun muun hoidossa kuin sen, jolla huoltajan,
tapaamisoikeuden nojalla tai muulla laillisella perusteella on
oikeus pitää lasta luonaan, tulee ulosotonhaltijan hakemuksesta
ryhtyä toimenpiteisiin lapsen luovuttamiseksi lailliselle
huoltajalleen, vaikka ei ole olemassa 1 §:n 1 tai 2 momentissa
tarkoitettua päätöstä sitä vastaan, jonka hoidossa lapsi on."
(Translation)
"If the child is being cared for by someone other than the person
who has been granted custody, visiting-rights or any other lawful
right to keep the child, the Executor in Chief shall, on request,
take measures to have the child handed over to its legal
custodian despite the absence of a decision referred to in
Section 1, paras. 1 or 2."
108. Section 8, para. 2 reads:
(Finnish)
"Ulosotonhaltijan tulee hylätä 1 momentissa tarkoitettu hakemus
ja osoittaa asianosaiset panemaan lapsen huoltoa koskeva asia
vireille tuomioistuimessa,
1) jos lapsi on annettu hoidettavaksi huoltajan suostumuksella
ja on aihetta olettaa, että lapsen luovuttaminen takaisin
huoltajalleen saattaisi olla vastoin lapsen etua ottaen huomioon
hoitosuhteen kestoaika, lapsen ja huoltajan välinen
kanssakäyminen, heidän välillään vallitseva suhde ja sen laatu;
tai
2) jos lapsen etu muutoin erittäin painavista syistä vaatii, että
asia on saatettava tuomioistuimen ratkaistavaksi."
(Translation)
"The Executor in Chief shall reject a request for enforcement
made under para. 1 and direct the parties to institute custody
proceedings before a court of law
1) if the child has been, with the custodian's consent, handed
over to be cared for by somebody else, and provided there is
reason to believe that a return of the child to his or her
custodian would be contrary to the child's interests, having
regard to the length of the [factual] care, the interaction and
relationship between the child and its custodian as well as to
the quality of that relationship; or
2) if, for other particularly weighty reasons, the interests
of the child warrant a decision by a court in the matter."
109. Section 13, para. 1 reads:
(Finnish)
"Ulosotonhaltijan tämän lain nojalla antama päätös on heti
täytäntöönpantavissa, jollei päätöksessä ole toisin määrätty."
(Translation)
"A decision under this Act by the Executor in Chief is
immediately enforceable, if otherwise is not stated in the
decision."
d. The 1889 Penal Code (rikoslaki 39/1889, strafflag 39/1889)
110. Chapter 2, Section 4 b, para. 2, as amended by Act no. 650/76,
reads:
(Finnish)
"Uhkasakko pakkokeinona asetetaan markkamääräisesti, huomioon
ottaen myös asianomaisen maksukyky. Sellainen uhkasakko voidaan
erityisistä syistä tuomita lievempänä kuin se on asetettu."
(Translation)
"An administrative fine imposed for the purpose of enforcement
shall consist of a fixed sum, having regard to the solvency of
the person concerned. Such an administrative fine may, for
particular reasons, be lowered in the payment order."
111. Section 5, para. 1, as amended by Act no. 650/86, reads:
(Finnish)
"Sakkoon [tai uhkasakkoon] tuomittu, jolta sakkoa ei ole saatu
perityksi, on maksamatta olevan sakon [tai uhkasakon] sijasta
määrättävä pidettäväksi vankeudessa ..."
(Translation)
"If a fine [or an administrative fine] cannot be collected from
a person ordered to pay such a fine [or administrative fine],
[it] shall be converted into a prison sentence ..."
112. Section 5, para. 4, as amended by Act no. 650/86, reads:
(Finnish)
"Jos niihin syihin nähden, joista sakon [tai uhkasakon]
maksamatta jääminen on johtunut, tai muusta erityisestä syystä
harkitaan kohtuulliseksi, muuntorangaistus saadaan määrätä ...
lyhyemmäksi, ... . Erityisistä sakotetun henkilökohtaisiin
olosuhteisiin liittyvistä syistä tuomioistuin saa jättää
muuntorangaistuksen määräämättä, jollei yleisen lainkuuliaisuuden
ylläpitäminen vaadi muuntorangaistuksen määräämistä."
(Translation)
"A prison sentence converted from a fine [or an administrative
fine] may be shortened ... in view of the reasons why the fine
[or administrative fine] has not been paid or if this is
considered fair for any other particular reason. For particular
reasons pertaining to the personal circumstances of the person
fined, the court may decide not to convert the fine into a prison
sentence, unless this is required by the maintenance of public
obedience to the law."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
113. The Commission has declared admissible the applicant's complaints
under Articles 8 (Art. 8) and 13 (Art. 13) of the Convention and
Article 5 of Protocol No. 7 (P7-5) to the Convention concerning, on the
one hand, the non-enforcement of court orders granting him custody of
as well as visiting rights to S. and, on the other hand, the transfer
of his custody of S. to R.N. and S.N.
114. The Commission has further admitted the applicant's complaint
under Article 6 para. 1 (Art. 6-1) of the Convention of the duration
of the second set of the custody proceedings ending on 21 January 1992.
B. Points at issue
115. Accordingly, the issues to be determined are :
- whether there has been a violation of Article 8 (Art. 8) of the
Convention;
- whether there has been a violation of Article 5 of Protocol No. 7
(P7-5) ;
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention; and
- whether there has been a violation of Article 13 (Art. 13) of the
Convention.
C. Article 8 (Art. 8) of the Convention
116. Article 8 (Art. 8) of the Convention reads :
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
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."
117. The applicant argues that his right to respect for his family
life has been violated. In allowing R.N. and S.N. to continue to keep
S. despite court decisions to the contrary, the authorities failed to
promote a speedy re-unification of the applicant and S. In the light
of the expert opinions in the case it must have been clear to the
social authorities from an early date that the arbitrary keeping of S.
by R.N. and S.N. not only contravened the applicant's interests but
also those of S. No circumstances justifying the non-enforcement of the
decisions were - or are - at hand. Regard must also be had to the
excessive length of the present enforcement proceedings.
118. The applicant emphasises that the non-enforcement resulted in the
Social Welfare Board instituting further proceedings in order to have
custody of S. transferred to R.N. and S.N. No grounds for such a
transfer existed, however, except for the fact that, as a result of the
non-enforcement of the earlier decisions, R.N. and S.N. had been able
to pursue their de facto care of S.
119. The applicant points out that at the latest following the
District Court's decision of 8 May 1991 rejecting the Social Welfare
Board's request for a transfer of custody of S., the authorities should
have enforced the applicant's right of custody. Instead they appealed
against the decision, as a result of which R.N. and S.N. were able to
continue their arbitrary keeping of S. In the end, custody of S. was
transferred to R.N. and S.N. in view of the length of her stay with
them and in spite of a fresh opinion by the Child and Family Guidance
Centre of Tuusula according to which the applicant was more suitable
as S.'s custodian than R.N. and S.N.
120. In the applicant's view it can be deduced from the reasoning of
the Court of Appeal's decision of 25 September 1991 that an arbitrary
keeping of a child, if long enough, amounts to a particularly weighty
reason for depriving a natural parent of custody of that child. Such
a reasoning clearly impairs the principle of legality.
121. The applicant recalls that not even subsequent to the transfer
of custody have R.N. and S.N. allowed him to meet S., although his
visiting rights were considered by the Court of Appeal to be in S.'s
interests. In view of R.N.'s and S.N.'s persistent defiance of the
court orders issued in the case as well as their good financial
situation the fines which they have been threatened with have been
totally insufficient for the purpose of securing these visiting rights.
During the entire proceedings R.N. and S.N. have only once been ordered
to pay fines for neglecting to comply with a court order and even then
the amount was reduced.
122. The Government submit that, as regards the lack of enforcement
of the District Court's final decision of 8 May 1991 upholding the
applicant's status as S.'s custodian, the stay of its execution may
have been ordered in the interests of S.
123. As to the transfer of custody the Government argue that, whether
or not R.N.'s and S.N.'s keeping of S. up to that transfer was
arbitrary, was not necessarily decisive for the transfer. The transfer
was justified in the interests of the child in view of her lengthy stay
with them, this stay having created an established family life. In such
circumstances the rights of S. must prevail over the rights of the
applicant despite his status as her guardian.
a. The existence of "family life" between the applicant and S.
124. The Commission recalls that the mutual enjoyment by parent and
child of each other's company constitutes a fundamental element of
family life (e.g. Eur. Court H.R., Rieme judgment of 22 April 1992,
Series A no. 226-B, p. 68, para. 54). The existence or not of a family
life falling within the scope of Article 8 (Art. 8) will depend on a
number of factors and on the circumstances of each particular case (see
e.g. No. 12402/86, Dec. 9.3.88, D.R. 55 p. 224).
125. The applicant is the father of S. who was born in September 1983
and lived with him until April 1985. Following R.N.'s and S.N.'s
subsequent refusal to return her to him the applicant nevertheless
enjoyed a certain access to S. until 1986. He has persistently demanded
her return and, in any case, that his visiting rights be enforced.
126. Furthermore, as far as the applicant's visiting rights are
concerned, the Commission observes that the non-enforcement has,
judging from the authorities' decisions, in no way been based on S.'s
unwillingness to meet him. On the contrary, these visiting rights have
been - and continue to be - considered to be in S.'s own interests.
127. The Commission further observes that the applicant has retained
his status as S.'s guardian from the very beginning of the proceedings
up to this day.
128. In these circumstances, the Commission finds that the
relationship between the applicant and S. has continued to be "family
life" within the meaning of Article 8 (Art. 8) until the present day
(cf. No. 14247/88, Dec. 3.7.92, D.R. 73 p. 27).
b. Whether there has been a lack of respect for the applicant's
family life
129. Whether a parent's lack of access to his or her child amounts to
an interference or lack of respect for the right guaranteed in the
first paragraph of Article 8 (Art. 8) will depend on the circumstances
of the case, such as the nature of the past relationship between the
parent and the child, the capacity of the child to express its views
and its preference, if stated (cf. the above-mentioned No. 14247/88).
130. In this respect and as far as the applicant's right of custody
is concerned, the Commission observes that up to the transfer of S.'s
custody on 25 September 1991 the applicant had never been deemed unfit
as S.'s custodian. On the contrary, he had been considered better
suited than R.N. and S.N. to be responsible for her upbringing.
131. The Commission recalls in this connection that the notion of
"respect" enshrined in Article 8 (Art. 8) is not clear-cut. This is the
case especially where the positive obligations implicit in that concept
are concerned. Its requirements will vary considerably from case to
case according to the practices followed and the situations obtaining
in the Contracting States. When determining whether or not such an
obligation exists regard must be had to the fair balance that has to
be struck between the general interest and the interests of the
individual as well as to the margin of appreciation afforded to the
Contracting States (Eur. Court H.R., B. v. France judgment of
25 March 1992, Series A no. 232-C, pp. 47 et seq., paras. 44 et seq.).
132. In the present case the Commission must strike a balance between
the various interests involved such as the interest of S., that of the
applicant as well as the general interest in ensuring respect for the
rule of law.
133. It is appropriate in this context to seek guidance in the case
of Olsson v. Sweden (no. 2) (Eur. Court H.R., judgment of
27 November 1992, Series A no. 250), which concerned the prohibition
preventing parents from removing their children from a foster home
after the children's placement in public care had ended. In that case
it was held, that
"[w]hilst national authorities must do their utmost to bring
about ... co-operation with a view of re-uniting children with
their natural parents, their possibilities of applying coercion
... are limited since the interests as well as the rights and
freedoms of all concerned must be taken into account, notably the
children's interests and their rights under Article 8 (Art. 8)
... . Where contacts with the natural parents would harm those
interests or interfere with those rights, it is for the national
authorities to strike a fair balance ... . ... [W]hat will be
decisive is whether the national authorities have made such
efforts to arrange the necessary preparations for reunion as can
reasonably be demanded under the special circumstances of each
case" (pp. 35-36, para. 90).
134. The Commission considers, however, that there is a fundamental
difference between the reunification obligation resulting from the
termination of de jure care as in the second Olsson case, and the
obligation to terminate a de facto care based on defiance of law and
court orders, as in the present case. Although in the latter situation,
too, coercion should be avoided as far as possible so as not to
contravene the interests of the child, it is clear that the threshold
for enforcing cannot be the same as in the first-mentioned situation.
A contrary approach could have the effect of encouraging child
abduction as a means of eventually obtaining parental rights and would
be incompatible with the rule of law.
135. Turning to the instant case, the Commission recalls that the
Convention entered into force with regard to Finland on 10 May 1990.
Although not being competent ratione temporis to evaluate the decisions
and events prior to 10 May 1990, the Commission must take into account
the applicant's situation on that day (cf., mutatis mutandis, Eur.
Court H.R., Martins Moreira judgment of 26 October 1988, Series A
no. 143, p. 16, para. 43).
136. The Commission is called upon to examine whether the failure of
enforcement of the applicant's parental rights as of 10 May 1990 up to
this day amounts to a lack of respect for his family life. His parental
rights included custody of and visiting rights to S. up to
25 September 1991 and, subsequently, visiting rights. The transfer of
custody was deemed to be in the interest of S. However, also the
retention of the applicant's visiting rights and status as S.'s
guardian were considered to be in her interests.
137. The Commission observes that on 10 May 1990 the applicant was
S.'s custodian and guardian. Except for the meeting arranged by the
authorities on 14 January 1987 his visiting rights had remained
unenforced as from the end of 1985, despite findings in the course of
the first set of custody proceedings that the circumstances in which
he lived would not prevent the return of S.
138. In August 1990 the Social Welfare Board requested that his
custody be transferred to R.N. and S.N. In the course of these
proceedings a number of court decisions granted the applicant a right
to meet S. None of them were enforced.
139. In the course of the custody proceedings and the subsequent
enforcement proceedings the County Administrative Board has twice
threatened R.N. and S.N. with administrative fines of 5.000 FIM each.
No payment order has, however, been issued. In addition, the social
authorities have offered their services with a view to conciliating the
parties.
140. The Commission recalls that it is free to take into consideration
the development of the case following the introduction of the
application up to and including the present stage of the proceedings,
given that these constitute a continuation of the facts underlying the
present complaint as admitted by the Commission (the above-mentioned
Rieme judgment, p. 67, para. 51). In this respect it notes that
following the transfer of custody of S. in September 1991 the applicant
in June and November 1992 again requested enforcement of his visiting
rights. On R.N.'s and S.N.'s appeal against the County Administrative
Board's order of 31 December 1992 proceedings are still pending before
the Court of Appeal.
141. The Commission is satisfied that reasonable steps have been taken
by the applicant himself in order to have his rights enforced. It is
struck by the absence of effective measures taken in response to the
his requests for enforcement. It recalls that, although the object of
Article 8 (Art. 8) is essentially that of protecting the individual
against arbitrary interference by the public authorities, it may also
impose positive obligations on the State inherent in an effective
respect for private or family life. These obligations may involve the
adoption of measures designed to secure respect for family life even
in the sphere of the relations of individuals between themselves (cf.
Eur. Court H.R., X and Y v. the Netherlands judgment of 26 March 1985,
Series A no. 91, p. 11, para. 23).
142. The Commission does not doubt that the non-enforcement of the
various court decisions has created a situation where the applicant's
and S.'s reunification may well be a difficult process, as the social
interaction between the two dates quite far back in time. It observes,
however, that this difficulty appears to have been taken into account
also by the domestic courts, in particular by the Court of Appeal in
its decision of 25 September 1991, as the visiting rights then granted
the applicant and still valid were initially to be enforced on premises
chosen by the local Social Welfare Office and in the presence of an
official of that Office. Only subsequently were the applicant and S.
to meet with no official being present. Moreover, S. was to spend every
second Christmas with the applicant. The same arrangement was to apply
for other special holidays.
143. As regards S.'s own wishes, it has been established on several
occasions, most recently by the County Administrative Board's in its
decision of 31 December 1992, that, in her present circumstances of
living, regard cannot be had to that opinion. The Commission, even
assuming that S.'s opinion ought to be considered, notes that the
opinion which she expressed to the conciliator in 1992 was only
submitted in the presence of R.N. and S.N. and that she refused to
speak to the conciliator in their absence.
144. The Commission also takes into account the considerable length of
the present enforcement proceedings, in particular in view of the
requirement under Finnish law that proceedings of this kind be speedy.
145. In the above-mentioned circumstances the Commission considers
that, even having regard to the margin of appreciation afforded to the
State, the national authorities have failed to make the efforts which
could reasonably be expected to enforce the applicant's rights in the
circumstances of this case.
146. The Commission concludes that no fair balance was struck between
the various interests involved in the case. In these circumstances, the
Commission finds that the non-enforcement of the applicant's custody
rights up to the transfer of custody of S. in 1991 as well as the non-
enforcement of his visiting rights amount to a lack of respect for his
family life.
Conclusion
147. The Commission concludes, by nineteen votes to two, that there
has been a violation of Article 8 (Art. 8) of the Convention.
D. Article 5 of Protocol No. 7 (P7-5)
148. Article 5 of Protocol No. 7 (P7-5) reads:
"Spouses shall enjoy equality of rights and responsibilities of
a private law character between them, and in their relations with
their children, as to marriage, during marriage and in the event
of its dissolution. This Article shall not prevent States from
taking such measures as are necessary in the interests of the
children."
149. The applicant complain that the failure of the authorities to
respect his family life also violates Article 5 of Protocol No. 7
(P7-5) to the Convention.
150. In view of its considerations of this complaint, insofar as it
has been lodged under Article 8 (Art. 8) of the Convention, the
Commission does not find it necessary to examine it separately under
Article 5 of Protocol No. 7 (P7-5). It finds no separate issue under
this provision.
Conclusion
151. The Commission concludes, unanimously, that no separate issue
arises under Article 5 of Protocol No. 7 (P7-5) to the Convention.
E. Article 6 para. 1 (Art. 6-1) of the Convention
152. Article 6 para. 1 (Art. 6-1) reads, insofar as it is relevant:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal established by law.
..."
153. The applicant recalls that, although he had already in 1987 been
considered, after careful investigations, to be the most suitable
person to have the care and custody of S., the Social Welfare Board
instituted further proceedings in order to have S.'s custody
transferred. At this point, however, no further grounds justifying a
transfer existed except the fact that, as a result of the non-
enforcement of the three previous court decisions, S.'s stay with R.N.
and S.N. had been prolonged. Thus, there was no need to carry out
further extensive investigations. In reality, no such investigations
took place, as can be seen from the fact that the opinion requested by
the District Court on 14 November 1990 was based exclusively on
material already known to the District Court.
154. The applicant submits that the excessively lengthy suspension of
the proceedings was further based on the District Court's attempt to
see whether or not the access arrangements ordered on 14 November 1990
would be adhered to. It must, however, have been expected by the
District Court that R.N. and S.N. would continue to defy all court
orders.
155. The applicant further submits that the administrative re-
organisation of the Child Guidance Centre of Uusimaa is no valid
justification for the excessive duration of the proceedings, the
authorities being obliged to make arrangements in order to avoid such
delays.
156. The Government admit that the applicant's conduct was appropriate
throughout the proceedings, as regards their length. The conduct of the
authorities was, however, also sufficiently expeditious. Admittedly,
cases pertaining to custody and visiting rights shall be treated as
urgent by the courts. The Social Welfare Board's request for a transfer
of the care and control of S. to R.N. and S.N. required, however,
careful examination. The case was very complex, necessitating that
sufficient time and diligence be vested in the examination. This sought
to ensure that S.'s interests be respected.
157. The Government further submit that as from 1 January 1991 the
functions of the Child Guidance Centre of Central Uusimaa were taken
over by the Child and Family Guidance Centre of Tuusula. It is true
that no new significant elements could be produced in the expert
opinion to the District Court as a result of R.N.'s and S.N.'s refusal
to participate in the investigation carried out by the Child and Family
Guidance Centre of Tuusula. The State, however, cannot be held
accountable for this lack of co-operation, which, in any case, had no
influence on the length of the proceedings.
158. The Commission reiterates that the reasonableness of the length
of proceedings must be assessed in the light of the circumstances of
each case and having regard to the following criteria: the complexity
of the case, the conduct of the parties and that of the authorities
dealing with the case (Eur. Court H.R., Vernillo judgment of
20 February 1991, Series A no. 198, p. 12, para. 30).
159. In the present case the proceedings at issue were instituted by
the Social Welfare Board's request on 13 August 1990. They ended on
21 January 1992 with the decision by the Supreme Court not to grant
leave to appeal. The total period to be considered was thus almost one
and a half year.
160. The Commission notes that the proceedings involved a hearing
before the District Court on 19 September 1990. This hearing was,
however, suspended until 14 November 1990, the Court having decided to
request an opinion from the Guardianship Board of Tuusula. On
14 November 1990 the hearing was suspended until 8 May 1991, the Court
having decided to request an opinion from the Child Guidance Centre of
Central Uusimaa.
161. The Commission notes the requirement under domestic law and
Article 8 (Art. 8) of the Convention that custody matters be speedily
dealt with by the courts. Irrespective of whether or not there were
sufficient reasons for the District Court's second suspension of the
proceedings for nearly six months, the Commission observes that the
overall proceedings lasted less than eighteen months and involved three
separate courts.
162. In the light of the criteria laid down in the Court's case-law
and having regard to the particular circumstances of the case, the
Commission therefore concludes that the length of the second set of
custody proceedings did not exceed a "reasonable time".
Conclusion
163. The Commission concludes, by sixteen votes to five, that there
has been no violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
F. Article 13 (Art. 13) of the Convention
164. Article 13 (Art. 13) of the Convention reads :
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
165. The applicant complains that the failure of the authorities to
respect his family life by reason of the non-enforcement of decisions
as well as the length of custody proceedings also violates Article 13
(Art. 13) of the Convention.
166. In view of its above considerations with regard to the complaints
under Articles 6 (Art. 6) and 8 (Art. 8) of the Convention the
Commission does not find it necessary to examine the complaints under
Article 13 (Art. 13).
Conclusion
167. The Commission concludes, by twenty votes to one, that it is not
necessary to examine the complaints under Article 13 (Art. 13) of the
Convention.
G. Recapitulation
168. The Commission concludes, by nineteen votes to two, that there
has been a violation of Article 8 (Art. 8) of the Convention (para. 147
above).
169. The Commission concludes, unanimously, that no separate issue
arises under Article 5 of Protocol No. 7 (P7-5) to the Convention
(para. 151 above).
170. The Commission concludes, by sixteen votes to five, that there
has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention
(para. 163 above).
171. The Commission concludes, by twenty votes to one, that it is not
necessary to examine the complaints under Article 13 (Art. 13) of the
Convention (para. 173 above).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
SEPARATE OPINION OF MR. DANELIUS, JOINED BY MM. NØRGAARD,
JÖRUNDSSON, SOYER, REFFI AND CONFORTI
(regarding Article 8 of the Convention)
The question whether there has been a lack of respect for the
applicant's family life arises in regard, on the one hand, to the
enforcement of the applicant's custody rights and the transfer of these
custody rights to his daughter's grand-parents and, on the other hand,
to the enforcement of the applicant's rights of access to his daughter.
In the consideration of whether there has been a violation of the
Convention, it is necessary to take into account that Finland was only
bound by the Convention as from 10 May 1990. Those facts in the present
case which relate to the period before that date are therefore only
indirectly relevant as a background of the developments which occurred
after that date.
As regards the custody of the applicant's daughter, I note that
on 30 May 1990, i.e. only a few weeks after 10 May 1990, the National
Board for Social Welfare recommended that the Social Welfare Board
should take measures in order to have the custody transferred to her
grand-parents. Proceedings regarding this question were instituted on
13 August 1990. These proceedings ended on 21 January 1992, when the
Supreme Court refused to grant leave to appeal against the judgment of
the Court of Appeal of 25 September 1991 by which the custody of the
applicant's daughter had been transferred to the grand-parents.
I find it justified that, while these proceedings were pending,
the authorities refrained from taking measures to enforce the
applicant's custody rights and preferred to await the outcome of the
proceedings. I also consider that, in view, in particular, of the long
time during which the applicant's daughter had lived with her grand-
parents despite the applicant's custody rights which were not enforced,
the decision in 1991 to transfer the custody to the grand-parents could
reasonably be considered to have been in the daughter's best interests
and does not therefore constitute a violation of the applicant's rights
under Article 8 of the Convention.
Long before 10 May 1990, the applicant had been granted access
rights to his daughter, although these rights had not been effectively
enforced. When, on 30 May 1990, the National Board for Social Welfare
recommended that the Social Welfare Board should take measures to have
the custody rights transferred to the grand-parents, it also
recommended that the applicant should be given rights of access to his
daughter. This was accepted by the Court of Appeal which, in its
judgment of 25 September 1991, regulated in detail the applicant's
access rights.
However, the applicant was unable to have these rights enforced.
On 22 June 1992, he instituted enforcement proceedings and he renewed
his request for enforcement on 10 November 1992. On 31 December 1992,
the County Administrative Board ordered the grand-parents, under threat
of administrative fines, to comply with the Court of Appeal's judgment.
However, the grand-parents appealed against this decision to the Court
of Appeal where proceedings are still pending.
Consequently, the applicant, whose rights of access have been
recognised for a long time, has not been able to have these rights
enforced. The fact that no enforcement has been possible after
10 May 1990 must be considered as particularly serious in view of the
fact that enforcement had been impossible also during a long period
before that date. Although the grand-parents have been threatened with
administrative fines, no decision to sanction their non-compliance with
the relevant court decisions by ordering them to pay those fines has
been taken. Moreover, the enforcement proceedings which the applicant
instituted on 22 June 1992 and renewed on 10 November 1992 have not
been quickly brought to an end but are still pending.
Without expressing an opinion on what precise measures would
have been appropriate in the difficult circumstances of this case, I
consider that the Finnish authorities did not sufficiently ensure the
applicant's effective enjoyment of the rights of access which he had
been granted by the courts. By failing to do so, the authorities showed
a lack of respect for the applicant's family life. On this basis, I
conclude that Article 8 has been violated in the present case.
(Or. English)
CONCURRING OPINION BY MR. ROZAKIS,
JOINED BY MM. MARXER AND CABRAL BARRETO
(regarding Article 8 of the Convention)
While I agree with the majority of the Commission that there has
been a lack of respect for the applicant's family life leading to a
violation of Article 8 of the Convention, I am not entirely in
agreement with its analysis as to the factors constituting the elements
of lack of respect.
The Commission considers that the violation of Article 8 is due
only to the non-enforcement of the visiting rights of the applicant for
the period commencing from the ratification of the Convention by
Finland, as well as the non-enforcement of his custody rights from that
date up to the date of the transfer of the custody rights of the
applicant to R.N. and S.N.
In my opinion the violation also results from the judgment of
the Court of 25 September 1991 transferring the custody of the child
from the applicant to R.N. and S.N. This judgment affected negatively
the nature of family life of the applicant as had been constituted
throughout the years, it has contributed to a further weakening of the
ties of the father with his child, and has also unjustifiably
contributed to the legitimisation of an otherwise illegal, de facto
situation.
(Or. English)
PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF MR. LOUCAIDES
As regards the complaint under Article 8 of the Convention the
Commission recalled in its decision on admissibility (Appendix II,
p. 48),
"[w]here the complaint concerns a continuing situation it falls
within the Commission's competence ratione temporis,
notwithstanding the fact that the situation complained of is a
consequence of a decision which was made or an occurrence which
took place prior to the entry into force of the Convention with
regard to the Contracting Party (No. 214/56, Dec. 9.6.58,
Yearbook 2 p. 214 (234)" .
The Convention entered into force with regard to Finland on
10 May 1990, while the applicant's custody of S. remained unenforced
as from the end of 1985 up to 25 September 1991. During this period he
only met S. once, namely at the meeting arranged by the social
authorities on 14 January 1987. Following the transfer of custody to
R.N. and S.N. in 1991 the visiting rights then granted to the applicant
also remained unenforced.
I conclude that, although part of the decisions concerning the
applicant's parental rights were rendered prior to 10 May 1990, the
non-enforcement of the decisions must be considered a continuing
situation falling, as a whole, within the Commission's competence
ratione temporis.
As regards the non-enforcement prior to 10 May 1990 I note that
an administrative fine of 2.000 FIM for each of R.N. and S.N. was
imposed on 30 September 1986. This was never followed by a payment
order. Another fine was imposed on 10 March 1987 in the amount of
8.000 FIM for each of R.N. and S.N. On 7 May 1987 R.N. and S.N. were
ordered to pay only 2.000 FIM each of this fine. The Commission has not
been informed of any enforcement of this payment order.
This background of events reinforces the view that the necessary
will on the part of the authorities of the respondent State to enforce
the parental rights of the applicant was lacking.
I conclude that the non-enforcement of the parental rights of
the applicant was a continuing breach of his right to respect for his
family life.
I also agree with the concurring opinion of Mr. Rozakis on the
question of a violation of Article 8 because of the transfer of custody
of S. from the applicant to R.N. and S.N.
As regards the complaint under Article 6 para. 1 of the
Convention I agree with the opinion of the minority.
(Or. English)
DISSENTING OPINION OF MM. TRECHSEL, WEITZEL AND SCHERMERS
AND MRS. THUNE
(regarding Article 6 of the Convention)
We disagree with the majority of the Commission on the question
whether the length of the second set of custody proceedings was
excessive.
We note, as the majority, the requirement under domestic law and
also implicit in Article 8 of the Convention, that custody matters be
speedily dealt with by the courts. Although the overall proceedings
before three courts lasted less than eighteen months, the proceedings
before the District Court were suspended on 14 November 1990 for almost
six months in order for the Court to obtain a further expert opinion
from the Child Guidance Centre of Central Uusimaa (as from
1 January 1991 the Child and Family Guidance Centre of Tuusula).
At the time of the suspension of the proceedings, however, the
applicant had already, after careful investigations, been considered
by three courts to be the most suitable person as S.'s custodian. In
the second set of custody proceedings instituted by the social
authorities the only ground justifying, in their view, a transfer of
custody was the duration of S.'s stay with R.N. and S.N. despite court
orders ordering her to be returned to the applicant.
In view of R.N. and S.N.'s previous refusals to comply with
court orders the District Court could not reasonably expect R.N. and
S.N. to co-operate in the investigation ordered to be carried out by
the Child Guidance Centre. Neither could the District Court reasonably
expect them to comply with the order granting the applicant provisional
visiting rights which was issued in connection with the suspension of
the custody proceedings. A suspension with nearly six months was
therefore excessive.
We note the rather speedy consideration of the case by the Court
of Appeal and the Supreme Court. We conclude, however, that, in the
particular circumstances of this case, the length of the second set of
custody proceedings as a whole exceeded a "reasonable time".
(Or. English)
DISSENTING OPINION OF MR. SCHERMERS
With respect to Article 8 I agree with the Commission's Report.
With respect to the length of proceedings I joined the minority.
I also voted against the conclusion that it is not necessary to
examine separately the complaints under Article 13 of the Convention.
Article 13 requires an effective remedy in case of a violation of a
right or freedom set forth in the Convention. In cases like the present
one, where execution by force is virtually impossible because of the
interests of the child, the effectiveness of possible remedies is one
of the main problems. Practice shows that the execution of court
decisions concerning children may cause substantial difficulties.
Guidance by the Strasbourg institutions seems advisable. I consider
that the Commission should have studied that particular problem.
In my opinion a remedy spread over a substantial period of time
or even a remedy which, after balancing the different interests, only
partially restores a violated human right may be an effective remedy
in child care cases. In the present case, however, no effective remedy
seemed available. Therefore, there has been a violation of Article 13
of the Convention.
(Or. English)
DISSENTING OPINION OF MRS. THUNE AND MR. PELLONPÄÄ
(regarding Article 8 of the Convention)
We disagree with the majority of the Commission in so far as
concerns the violation of Article 8 of the Convention.
The Convention entered into force with respect to Finland on
10 May 1990. Although the complaint concerns developments which had
started earlier, only the events subsequent to that date can be taken
into account in the assessment of whether there has been lack of
respect for the applicant's rights guaranteed by Article 8. The
Commission must take as its starting point the situation on
10 May 1990. It is not competent ratione temporis to evaluate, from the
point of view of the Convention, the decisions and events which led to
the situation as it existed on the above-mentioned date. Thus, the
Commission should not, as it seems to do in para. 137, have regard to
the non-enforcement of certain decisions between 1985 and 10 May 1990
as an aggravating circumstance against the State, nor regard the fact
that S. had spent that period with her grandparents as a factor
speaking against the applicant.
We note that on 30 May 1990 the National Board for Social
Welfare recommended the local Social Welfare Board to take measures so
as to have custody over S. transferred to R.N. and S.N. This initiative
finally led to the judgment of the Court of Appeal of
25 September 1991, whereby custody of S. was transferred to R.N. and
S.N. This was deemed to be in the interest of S. Taking into account
the margin of appreciation of State authorities, we cannot find that
this decision was in violation of Article 8 of the Convention. In
reaching this conclusion we note that the Court of Appeal confirmed
that the applicant would retain his status as S.'s legal guardian and
granted him visiting rights with respect to S. Visiting rights had been
granted by the District Court's interim decision of 14 November 1990.
These were, however, later revoked as a consequence of the District
Court's final decision of 8 May 1991, whereby the applicant retained
custody of S.
The applicant has not been able to exercise his visiting rights
based on any of these decisions. This state of affairs appears to be
primarily due to the lack of compliance with a number of court
decisions on the part of R.N. and S.N., i.e. private persons for whose
actions and omissions the State is not directly responsible. The
question remains, however, whether the non-enforcement of the visiting
rights by State authorities shows a lack of respect for the applicant's
rights guaranteed by Article 8.
As stated by the Commission, the "notion of 'respect' enshrined
in Article 8 is not clear-cut. This is the case especially where the
positive obligations implicit in that concept are concerned. Its
requirements will vary considerably from case to case according to the
practices followed and the situations obtaining in the Contracting
States. When determining whether or not such an obligation exists
regard must be had to the fair balance that has to be struck between
the general interest and the interests of the individual as well as to
the margin of appreciation afforded to the Contracting States"
(para. 131 and the case mentioned therein).
We accept that it is appropriate in this context to seek
guidance from the case of Olsson v. Sweden (no. 2) (Eur. Court H.R.,
judgment of 27 November 1992, Series A no. 250), referred to in
para. 133 of the Report. As stated in that case, "what will be decisive
is whether the national authorities have made such efforts to arrange
the necessary preparations for reunion as can reasonably be demanded
under the special circumstances of each case" (pp. 35-36, para. 90).
The question in the present case is whether the Finnish
authorities have made such efforts as can reasonably be demanded of
them with a view to enforcing the applicant's rights. In deciding this
question all the circumstances of the case must be taken into account,
including the fact that the applicant has never lost his status as S.'s
legal guardian.
We note that on two occasions, once before and once after the
transfer of custody of S., the County Administrative Board has
threatened R.N. and S.N. with administrative fines of 5.000 FIM each.
In addition, the social authorities have offered their services with
a view to conciliation between the parties. The authorities, however,
have neither ordered the physical transfer of S. as a means of
enforcement, nor ordered the payment of the administrative fines.
The fact that after the transfer of custody domestic law
excludes the possibility of a physical transfer of S. for the purpose
of the enforcement of the applicant's visiting rights is not decisive
in the assessment whether the Convention has been complied with. Even
so, we cannot conclude that the failure to use force, whether it
results from the legal situation or from reluctance of the authorities
to resort to such a measure, amounts to a breach of Article 8. In the
delicate situation in question, where the interests of the child must
be an overriding consideration, the use of physical coercion cannot be
regarded as required by the Convention.
There remains the question whether, in order to comply with the
Convention, the authorities should have resorted to additional measures
short of physical transfer. While domestic law may have afforded
certain possibilities, we doubt whether they would have provided
appropriate means of protecting the applicant's rights. In any case,
we find it understandable that, pending the proceedings concerning the
transfer of custody, no drastic measures were resorted to.
We accept that one may question whether enough has been done by
the authorities after the transfer of custody on 25 September 1991. In
particular, the length of the appeal proceedings concerning the
administrative fines with which R.N. and S.N. were threatened on
31 December 1992 is disturbing. Nevertheless, we do not think this
suffices to constitute a violation of Article 8. In the light of all
the circumstances of the case we conclude, on balance, that the
behaviour of the State authorities in the period following 10 May 1990
does not show a lack of respect for the applicant's rights as
guaranteed by Article 8.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
10 April 1992 Introduction of the application
13 April 1993 Registration of the application
Examination of Admissibility
29 June 1992 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
10 October 1992 Government's observations
10 November 1992 Applicants' observations in reply
9 February 1993 Commission's deliberations and
decision to declare the application
in part admissible, in part
inadmissible and to request further
written observations on the merits
Examination of the merits
19 February 1993 Decision on admissibility transmitted
to the parties
18 March 1993 Applicant's further observations on
the merits
19 March 1993 Government's further observations on
the merits
22 April 1993 Applicant's supplementary observations
on the merits
8 May 1993 Commission's consideration of the
state of proceedings
28 September 1993 Government's supplementary
observations on the merits
11 October 1993 Applicant's supplementary observations
on the merits
15 October 1993 Commission's deliberations on the
merits and final vote
22 October 1993 Adoption of the Report
APPENDIX III
CALENDAR OF MEASURES TAKEN DURING THE SECOND SET OF CUSTODY
PROCEEDINGS
Date Item
_________________________________________________________________
13 August 1990 Request by the Social Welfare
Board of Tuusula to the District
Court of Tuusula for a transfer of
custody of S. to R.N. and S.N.
16 August 1990 The District Court's first
consideration of the request. Fixing
of hearing.
19 September 1990 Hearing before the District Court.
Decision to obtain an opinion from
the Guardianship Board of Tuusula.
31 October 1990 The Guardianship Board's opinion
arrives to the District Court.
14 November 1990 Second hearing before the District
Court. Decision to obtain an opinion
from the Child Guidance Centre of
Central Uusimaa. Interim decision
ordering that S. stay with R.N. and
S.N. and the applicant enjoy visiting
rights.
20 December 1990 The applicant's request to the County
Administrative Board for enforcement
of the District Court's interim
decision.
1 January 1991 The Child Guidance Centre of Uusimaa
ceases to exist. Its functions are
taken over by the Child and Family
Guidance Centre of Tuusula.
2 January 1991 Interim decision by the County
Administrative Board. Communication
to the applicant.
31 January 1991 The applicant's renewed request to the
County Administrative Board for
enforcement of the District Court's
interim decision.
5 February 1991 R.N.'s and S.N.'s observations on the
applicant's enforcement request
arrive to the County Administrative
Board.
27 February 1991 The County Administrative Board
transmits the documents to the
conciliator of Järvenpää.
15 March 1991 The conciliator returns the documents
to the County Administrative Board.
28 March 1991 The County Administrative Board's
decision ordering R.N. and S.N. to
comply with the District Court's
interim decision under a threat of
administrative fines of 5.000 FIM
each.
7 May 1991 The opinion by the Child and Family
Guidance Centre of Tuusula arrives to
the District Court.
8 May 1991 The District Court's decision
rejecting the Social Welfare Board's
request for a transfer of custody.
6 June 1991 The Social Welfare Board's appeal
arrives to the District Court.
7 June 1991 R.N.'s and S.N.'s appeal arrives to
the District Court.
19 June 1991 The applicant's request to the County
Administrative Board of enforcement
of the District Court's decision of
8 May 1991.
24 June 1991 The applicant's observations on the
appeals arrive to the District Court.
24 June 1991 R.N.'s and S.N.'s observations on the
applicant's enforcement request
arrive to the County Administrative
Board.
25 June 1991 The County Administrative Board's
interim decision. Communication to
the applicant.
27 June 1991 The appeals are transmitted by the
District Court to the Court of Appeal
of Helsinki.
5 July 1991 The case is assigned to a Rapporteur
Judge.
24 July 1991 The Court of Appeal's interim decision
ordering stay of execution of the
District Court's decision of 8 May
1991.
31 July 1991 R.N's and S.N.'s observations on the
applicant's enforcement request of
19 June 1991 arrive to the County
Administrative Board.
2 August 1991 The Court of Appeal's request to the
County Administrative Board to obtain
the applicant's observations in reply
to R.N.'s and S.N.'s appeal.
25 September 1991 The Court of Appeal's decision
transferring S.'s custody to R.N. and
S.N. and granting the applicant
visiting rights.
26 November 1991 The applicant's as well as R.N.'s and
S.N.'s requests for leave to appeal
arrive to the Supreme Court.
2 December 1991 The case is assigned to a Rapporteur
Judge.
14 January 1992 The Supreme Court's deliberations.
21 January 1991 The Supreme Court's decision.