AS TO THE ADMISSIBILITY OF

                      Application No. 25653/94

                      by K.P.

                      against Finland

      The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 22 June 1994 by

K.P. against Finland and registered on 14 November 1994 under file

No. 25653/94;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a Finnish citizen, born in 1949 and resident in

Espoo. She is an executive manager. Before the Commission she is

represented by Mr. Markku Fredman, a lawyer in Helsinki.

      The facts of the case, as submitted by the applicant, may be

summarised as follows.

      The applicant has two children, Roope, born in 1982, and Antti,

born in 1984. Anticipating their split-up in 1984, the parents agreed

to maintain joint custody of the children, who were to live with their

mother. This agreement became enforceable on account of its approval

by the Social Welfare Board (sosiaalilautakunta, socialnämnden) of

Espoo on 1 November 1984.

      The parents continued their cohabitation up to the end of 1988.

In January 1989 the father took the children to his new home and

refused to let the applicant see them.

      In June 1989 the applicant requested enforcement of the 1984

agreement. In July 1989 the children's father requested that he be

granted sole custody of the children. The applicant also requested sole

custody.

      On 11 September 1989 the County Administrative Board (läänin-

hallitus, länsstyrelsen) of Uusimaa ordered the father to hand over the

children to the applicant or they would be fetched. The father refused

to comply with the order and evaded enforcement.

      In an interim order of 3 October 1989 the District Court (kihla-

kunnanoikeus, häradsrätten) of Espoo held that the children were to

live with their father pending the outcome of the custody proceedings.

      By a decision of 6 February 1990 the father obtained sole custody

of the children and the applicant was awarded the right to visit and

keep the children during the first and the third weekend of each month

and during four weeks in the summer.

      The applicant was unable to have these visiting rights enforced.

      On 13 June 1990 the Espoo District Court's decision was upheld

by the Helsinki Court of Appeal (hovioikeus, hovrätten).

      In July 1990 the father requested enforcement of the custody

order, submitting that the applicant had fetched Antti on 30 June 1990

and had refused to return him. The applicant opposed the enforcement

request, stating that Antti had run away from the father's home and no

longer wished to return to him.

      On 17 August 1990 the applicant requested enforcement of her

visiting rights in respect of Roope.

      On 22 October 1990 the County Administrative Board ordered the

applicant to restore Antti to his father. On the same day the father

fetched Antti from his school.

      On 20 February 1991 the applicant requested enforcement of her

visiting rights in respect of Antti.

      The father opposed enforcement of the applicant's visiting

rights. He adduced, inter alia, an expert opinion submitted by Dr. Esko

Varilo on 22 October 1990, who, on the basis of interviews with the

father and his two maids, found a sufficiently strong suspicion that

both children had been subjected to incest and that the applicant

should therefore be refused access to them until the autumn of 1991.

At any rate, access should take place in supervised conditions. The

Conciliator (sovittelija, medlare) appointed by the Court had found no

indication of sexual abuse.

      On 19 June 1991 the City Administrative Court (maistraatti,

magistraten) of Helsinki ordered the father to comply with the visiting

rights confirmed on 13 June 1990 on pain of an administrative fine. The

Court considered that the contents of the expert opinions invoked had

essentially been brought to the attention of the ordinary courts which

had nevertheless granted the applicant the visiting rights at issue.

      On the father's appeal the Helsinki Court of Appeal on

14 November 1991 found that the applicant's visiting rights should be

re-examined by an ordinary court in the light of the fresh expert

opinions adduced by the father.

      Following the father's death on 4 April 1992 the applicant,

represented by counsel, requested custody of the children. A similar

request was lodged jointly by the female friend of the father, R, as

well as by the children's stepsister K. R had taken over the de facto

care of the children without informing the applicant of their

whereabouts. The local social authorities had agreed to this non-

disclosure.

      In the course of the proceedings the applicant subsidiarily

requested to be granted visiting rights extending to every weekend and

one month in the summer.

      By an interim order the Helsinki City Court on 22 June 1992

provisionally granted custody of the children jointly to R and K. The

applicant was granted eight hours of visiting rights per month in

supervised conditions.

      By a judgment of 30 November 1992 the provisional custody order

became final and the applicant was granted six hours of visiting rights

per month until 31 May 1993 and fourteen hours per month as from 1 June

1993. The Court found it established that the children had been

separated from the applicant for over two years except for certain

brief visits and the four-month long period during which Antti had been

staying with her. The conflicts within the family had resulted in the

children's need for therapy and stable conditions.

      The City Court had regard to, inter alia, witness testimony as

well as a report of the Social Welfare Authority (sosiaalivirasto,

socialverket) of Helsinki dated 25 November 1992. This report

concluded, inter alia, that the applicant's living conditions remained

in a state of flux. It noted that she was seeking treatment for her

mental problems and her abuse of alcohol. It was thus not to be

recommended that she be afforded custody. A further report submitted

by the Espoo Social Authority on 18 November 1992 concluded that,

although custody should not for the time being be afforded to the

applicant, as extensive visiting rights as possible ought to be

granted.

      The applicant, no longer represented by counsel, appealed against

the City Court's decision. She primarily challenged the custody order

but also requested that her visiting rights be extended. In her

additional submissions dated 14 January, 26 April and 21 June 1993 she

claimed to have become better qualified than R to be her children's

custodian; that her mental health was good; and that her living

conditions had significantly improved.

      On 8 September 1993 the Helsinki Court of Appeal upheld the City

Court's decision, considering the applicant's appeal as pertaining only

to the custody issue. It did not take into account her belated

submissions.

      On 27 December 1993 the Supreme Court (korkein oikeus, högsta

domstolen) refused the applicant leave to appeal, having considered the

matter as one concerning "a decision regarding custody etc.".

      From 8 September 1993 to 1 October 1994 the applicant was able

to meet both of her children on sixteen occasions and either of the

children on three occasions. However, eleven of the planned meetings

with the children were not organised, part of them for reasons given

by R and part of them for reasons given by the applicant. It appears

that at least on six occasions R refused to agree to these meetings

being organised on dates differing from those ordered by the courts.

The meeting on 1 October 1994 was cancelled by R after she had

allegedly been informed by the authorities that the applicant and her

children had met without R's and K's knowledge. According to the

applicant, Roope had seen the applicant at his own initiative and

without R's knowledge in August and September 1994.

      Meanwhile, the applicant, on 8 August 1994, lodged a fresh

request with the County Administrative Board for the enforcement of her

visiting rights. This was opposed by R and K, requesting that the

applicant's visiting rights should be revoked for at least a year. On

3 October 1994 R informed the applicant that she would not agree to any

further meetings between the applicant and the children until the

applicant had clarified the "secret" meetings between them.

      On 20 December 1994 the County Administrative Board ordered R to

comply with the City Court's decision of 30 November 1992 concerning

the applicant's visiting rights, on pain of an administrative fine in

the amout of 2.000 FIM. R appealed.

      On 27 January 1995 Antti eloped from R's home and stayed with the

applicant until 3 February 1995, when R fetched him from school.

      On 1 February 1995 R and K requested enforcement of the custody

order in respect of Antti.

      In accordance with her sons' wishes the applicant, in April 1995,

lodged a fresh request for custody of them, alternatively more

extensive visiting rigths.

      On 3 June 1995 Antti and Roope moved to the applicant's home. On

18 June 1995 Antti was apparently again fetched by R, but on 23 June

1995 he again ran away and returned to the applicant's home.

      On 6 July 1995 the Court of Appeal rejected R's appeal against

the County Administrative Board's order of 20 December 1994.

      In the course of the fresh custody proceedings the Helsinki

District Court (käräjäoikeus, tingsrätten) on 25 July 1995

provisionally extended the applicant's visiting rights. It did not

pronounce itself as to where the children should live.

      The District Court also requested the Helsinki Social Welfare

Authority's opinion apparently in regard to the custody matter. This

was to be submitted by February 1996.

      On 8 September 1995 R again fetched Antti from school.

      On 13 September 1995 the County Administrative Board rejected R's

and K's request for enforcement of the custody decision. The Board

noted that the children had voluntarily left R and K for the applicant

and had expressed a strong wish not to return to them. The children's

wish was to be respected, having regard to their maturity. R and K

appealed.

      On 29 September 1995 Antti again returned to the applicant's

home.

      R's and K's appeal was rejected by the Court of Appeal on

7 December 1995.

      As from the beginning of 1996 the children have been staying

mostly with R. No opinion concerning the custody dispute has yet been

submitted by the Social Welfare Authority.

COMPLAINTS

1.    The applicant complains under Article 8 of the Convention that

the transfer of custody from their father to R and K and the visiting

rights granted to herself did not respect her and her children's family

life. As a result of the custody order the children were forced to live

with R, a 56-year-old woman without children of her own and thus

insufficiently qualified to be their custodian. The courts also failed

to take into account the improvement in the applicant's living

conditions as reflected, inter alia, in the report of the Espoo Social

Welfare Authority. The custody order and the minimal visiting rights

initially granted effectively amounted to a de facto placement in

public care, since they did not aim at reuniting the family once the

applicant had overcome her temporary problems.

      In her submissions of 20 June 1996 the applicant furthermore

complains that the District Court's interim order of 25 July 1995

effectively prevents her from obtaining the enforcement necessary for

the upbringing of her children. Moreover, by delaying its reply to the

District Court the Helsinki Social Welfare Authority is allegedly

expecting her to withdraw her custody request.

2.    The applicant furthermore complains under Article 6 of the

Convention that the proceedings ending with the Supreme Court's

decision of 27 December 1993 were unfair. The courts did not give any

reasons for restricting her visiting rights to a minimum. This hampered

her possibility of appealing, particularly as she was no longer

represented by counsel. In addition, the Court of Appeal failed to

consider her appeal insofar as it concerned her visiting rights. It was

also under a special obligation to make a fresh assessment of her

children's interests, as her living conditions had been improving while

her appeal was pending before it. The Court of Appeal nevertheless

refused to take notice of her belated submissions.

      In her submissions of 20 June 1996 the applicant also complains

about the excessive length of the pending custody proceedings.

3.    Finally, the applicant complains under Article 6 para. 2 of the

Convention of a breach of the presumption of innocence in the

proceedings ending with the Supreme Court's decision of 27 December

1993. The court decisions were allegedly made in the light of incest

suspicions which were never investigated.

THE LAW

1.    The applicant complains of the transfer of custody of her

children from their father to R and K and of the minimal visiting

rights granted to her in 1992. The courts allegedly failed both to take

into account the improvement in her living conditions and to provide

for a reunification of her family once she had overcome her temporary

problems. She furthermore complains that the District Court's interim

order of 25 July 1995 prevents her from obtaining enforcement of the

visiting rights granted to her. She finally complains about the

Helsinki Social Welfare Authority's failure to submit its opinion on

her custody request.

      The applicant invokes Article 8 (Art. 8) of the Convention which,

as far as it is relevant, reads 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."

(i)   The Commission has first dealt with the complaint insofar as it

concerns the events up to and including the Supreme Court's decision

of 27 December 1993. It notes that the applicant lost custody of her

children already in 1990, i.e. before custody of them was granted to

R and K. The children were nevertheless of the applicant's and their

father's marriage and were thus ipso jure part of the original "family"

unit from the moment of birth and by the very fact of it. After her own

loss of custody the applicant had certain access to them. After the

second custody transfer she has continuously sought to obtain extended

visiting rights. These links are sufficient to establish "family life"

within the meaning of Article 8 para. 1 (Art. 8-1) between the

applicant and her children (see, e.g., Eur. Court H.R., Hokkanen v.

Finland judgment of 23 September 1994, Series A no. 299-A, pp. 19-20,

para. 54). The Commission will therefore assume that this provision

applies both in respect of the transfer of custody from the children's

father to R and K and in respect of the related restriction of her

visiting rights and that these measures amounted to an interference

with her right to respect for her family life.

      In order to be justified under the terms of Article 8 para. 2

(Art. 8-2) this interference must satisfy three conditions: it must be

"in accordance with the law", it must pursue one or more of the

legitimate aims enumerated in Article 8 para. 2 (Art. 8-2) and it must

be "necessary in a democratic society" for that or those legitimate

aims. The notion of necessity implies that the interference corresponds

to a pressing social need and, in particular, requires that it be

proportionate to the legitimate aim pursued. In determining whether an

interference is "necessary in a democratic society", the Commission

must determine whether the reasons adduced to justify the interferences

at issue were "relevant and sufficient", bearing in mind the margin of

appreciation left to the Contracting State (see, e.g., Eur. Court H.R.,

Olsson v. Sweden judgment of 24 March 1988, Series A no. 130,

pp. 31-32, paras. 67-68). Finally, certain procedural requirements are

also implicit in Article 8 (Art. 8) to the extent that in child care

matters the parents must have been 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., Eur. Court

H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no.

121, pp. 28-29, paras. 63-65 and the above-mentioned Olsson judgment,

p. 33, para. 71).

      In the present case it has not been alleged that the interference

was not in accordance with the law. It can furthermore reasonably be

assumed to have been intended to safeguard the development of the

applicant's children. It therefore served the legitimate aim of

protecting their health and rights.

      As regards the necessity of the interference, the Commission

finds no indication of arbitrariness in the national courts'

examination. It notes, in particular, that before restricting the

applicant's visiting rights to the extent complained of the Helsinki

City Court heard witnesses and had at its disposal, inter alia, reports

submitted by the social welfare authorities of Helsinki and Espoo.

Having regard to the children's need for stable conditions, the Court

found it appropriate to extend the applicant's visiting rights

gradually, thereby rejecting her request for visiting rights extending

to every weekend. The reasons invoked by the City Court were clearly

relevant and sufficient to justify the interference with the

applicant's rights under Article 8 (Art. 8).

      Finally, the Commission finds no indication that the applicant

was insufficiently informed of the investigations of her and her

children's living conditions. Nor can it find that she was at any stage

of the proceedings prevented from presenting her views. She was thus

sufficiently involved in the decision-making process, seen as a whole,

so as to provide her with the requisite protection of her interests.

      Taking all the circumstances of the case into account and having

regard to the State's margin of appreciation, the Commission is

satisfied that the Finnish courts were reasonably entitled to consider

that the transfer of custody from the children's father to R and K and

the related restriction of the applicant's visiting rights in 1992 were

necessary in order to achieve the above-mentioned legitimate aim.

Accordingly, there is no appearance of any violation of Article 8

(Art. 8) on this point.

(ii)  Insofar as the complaint concerns the further developments after

the Supreme Court's decision of 27 December 1993, the Commission

recalls that the essential object of Article 8 (Art. 8) is to protect

the individual against arbitrary interference by the public

authorities. There may in addition be positive obligations inherent in

an effective "respect" for family life. Whilst the boundaries between

the State's positive and negative obligations under this provision do

not lend themselves to precise definition, the applicable principles

are similar. In particular, in both contexts regard must be had to the

fair balance that has to be struck between the competing interests of

the individual or individuals involved as well as the community as a

whole, and in both contexts the State is recognised as enjoying a

certain margin of appreciation. What is decisive is whether the

national authorities have taken all necessary steps as can reasonably

be demanded in the special circumstances of each case (cf. the above-

mentioned Hokkanen judgment, p. 20, para. 55 and p. 22, para. 58).

      The question now arising is essentially whether there has been

a failure on the part of the Finnish authorities to respect the "family

life" prevailing between the applicant and her children while

attempting to strike a fair balance between their respective interests,

rights and freedoms and those of R and K (cf., ibid., p. 22, para. 58).

      In the Hokkanen judgment the Court noted that the applicant's

adversaries, who de facto had been caring for his child, had repeatedly

refused to comply with the court-ordered provisional access

arrangements concerning the child and the applicant; that they had

subsequently refused to fulfil their court-ordered obligation to

restore the child to him; and that they had finally refused to

cooperate with the authorities for the purpose of implementing the

court-ordered final access arrangements between the two (see ibid.,

pp. 10 et seq., paras. 11 et seq.). Despite this refusal on the part

of the applicant's adversaries the authorities had considered

themselves unable to intervene in the dispute with a view effectively

to enforcing the court orders issued at the applicant's request.

Eventually custody of the child was transferred to the applicant's

adversaries, having regard to her lengthy stay with them (see ibid.,

pp. 13-14, para. 29).

      The present applicant complains that the District Court's interim

order of 25 July 1995 prevents her from obtaining enforcement of the

visiting rights granted to her. The Commission finds that this

allegation has not been sufficiently substantiated. In any case, the

facts of the present application distinguish it from the Hokkanen case.

The Commission notes, in particular, that already prior to the District

Court's interim order of 25 July 1995 the applicant was able to meet

her children on a significant number of occasions. Subsequent to that

order the children have occasionally also been living with her.

      The applicant also complains about the Helsinki Social Welfare

Authority's failure to submit its opinion on her custody request.

Indeed it appears that the Authority's opinion has not yet been

submitted, although the time-limit fixed by the Helsinki District Court

expired already in February 1996.

      Nevertheless, having regard to the presently prevailing

circumstances, the conflicting interests at stake and the State's

margin of appreciation, the Commission cannot find that the authorities

have so far failed to make reasonable efforts to show respect for the

applicant's "family life". Accordingly, there is no appearance of any

violation of Article 8 (Art. 8) on this point either.

      It follows that the whole of this complaint must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.    The applicant furthermore complains that the proceedings ending

with the Supreme Court's decision of 27 December 1993 were unfair.

Allegedly, the courts did not give any reasons for restricting her

visiting rights to a minimum. This hampered her possibility of

appealing, particularly as she was no longer represented by counsel.

In addition, the Court of Appeal failed to consider her appeal insofar

as it concerned her visiting rights. It was also under a special

obligation to make a fresh assessment of her children's interests, as

her living conditions had been improving while her appeal was pending

before it. The Court of Appeal nevertheless refused to take notice of

her belated submissions. In her submissions of 20 June 1996 the

applicant also complains about the excessive length of the pending

custody proceedings.

      The applicant invokes Article 6 (Art. 6) of the Convention which,

as far as it is relevant, reads as follows:

      "1.  In the determination of his civil rights ..., everyone is

      entitled to a fair ... hearing within a reasonable time by [a]

      ... tribunal ..."

(i)   The Commission has first dealt with the complaint insofar as it

concerns the proceedings ending with the Supreme Court's decision of

27 December 1993. It recalls that under Article 26 (Art. 26) of the

Convention it may only deal with an application after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law. An applicant must make normal use of

remedies likely to be effective and adequate in respect of the matters

of which he complains (see, e.g., No. 13251/87, Dec. 6.3.91, D.R. p.

68 pp. 137 et seq. at pp. 163-164).

      In the present case the Commission finds no indication that the

applicant challenged, at least in substance, the unfairness of the

proceedings allegedly resulting from the City Court's failure to

provide proper reasons for the restriction of her visiting rights; the

Court of Appeal's failure to consider her appeal insofar as it

concerned her visiting rights; and its failure to take notice of her

belated submissions in support of her appeal.

      It is true that in the proceedings before the Court of Appeal and

the Supreme Court the applicant was no longer represented by counsel.

The Commission considers, however, that she was not, for this reason,

absolved from the requirement to exhaust domestic remedies (cf., e.g.,

Cardot v. France judgment of 19 March 1991, Series A no. 200, pp. 18-

19, paras. 34-36; No. 11244/87, Dec. 2.3.87, D.R. 55 p. 98;

No. 11921/86, Dec. 12.10.88, D.R. 57 p. 81).

      The Commission therefore concludes that the applicant did not

exhaust the remedies available to her under Finnish law. Moreover, an

examination of this aspect of the complaint does not disclose the

existence of any special circumstance which might have absolved her,

according to the generally recognised rules of international law, from

exhausting those remedies.

      It follows that this aspect of the complaint must be rejected for

non-exhaustion of domestic remedies under Article 27 para. 3

(Art. 27-3) of the Convention.

(ii)  Next the Commission has dealt with the complaint concerning the

allegedly excessive length of the pending custody proceedings. It

recalls that the reasonableness of the length of the proceedings is to

be determined in the light of the circumstances of the case and with

reference to the criteria laid down in the Court's case-law, in

particular the complexity of the case, the conduct of the applicant as

well as that of the competent authorities. On the latter point, the

importance of what is at stake for the applicant in the litigation has

to be taken into account (see, e.g., the above-mentioned Hokkanen

judgment, pp. 25 et seq., paras. 69 et seq.).

      The Commission notes that the custody proceedings which the

applicant instituted in April 1995 are still pending before the

Helsinki District Court which sofar appears to have issued only an

interim order on 25 July 1995.

      In the circumstances of the case the Commission does not find

that the present length of the proceedings could be considered

unreasonable for the purposes of Article 6 para. 1 (Art. 6-1) of the

Convention. Accordingly, there is no appearance of a violation of that

provision.

      It follows that this aspect of the complaint must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3.    Finally, the applicant complains of a breach of the presumption

of innocence in the proceedings ending with the Supreme Court's

decision of 27 December 1993. The court decisions were allegedly made

in the light of incest suspicions which were never investigated. She

again invokes Article 6 (Art. 6) of the Convention.

      The Commission has considered this complaint in the light of

Article 6 para. 2 (Art. 6-2) of the Convention which reads as follows:

      "Everyone charged with a criminal offence shall be presumed

      innocent until proved guilty according to law."

      The Commission observes that the applicant was not charged with

any criminal offence. Nor is there any indication of any other voicing

of suspicions or a finding of guilt which could raise an issue under

Article 6 para. 2 (Art. 6-2). Accordingly, there is no appearance of

any violation of this provision.

      It follows that this complaint must also be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                        of the First Chamber