Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24671/94

by Orvo Helge Juhonpoika KAIJALAINEN

against Finland

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 5 March 1994 by

Orvo Helge Juhonpoika KAIJALAINEN against Finland and registered on

25 July 1994 under file No. 24671/94;

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 Swedish citizen, born in 1937. He is a

journalist residing in Haninge, Sweden. Before the Commission he is

represented by Mr. Eilert Uusijärvi, a lawyer practising in Stockholm.

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

summarised as follows.

The applicant is the father of a girl called J, born in 1980. The

applicant has never had custody of his daughter. The applicant and the

child's mother, called P, co-habited in Sweden for about one year after

the child's birth.

On 20 January 1983 the District Court (tingsrätten) of Södra

Roslag, Sweden, granted the applicant access rights on an interim

basis. In the course of 1983 the applicant visited his daughter several

times.

In 1984 the child's mother, together with the child, left Sweden

for a place unknown to the applicant. The applicant searched for them

with the assistance of Interpol.

In 1984 the District Court granted the applicant access rights

and on 4 April 1985 the Svea Court of Appeal (hovrätten) upheld the

District Court's decision.

In or around 1987 the child and her mother were traced in

Helsinki, Finland.

Apparently, soon after the child and her mother had been found

in Finland the applicant lodged a request for enforcement of his access

rights, based on the above-mentioned Swedish Court of Appeal decision

of 4 April 1985. The City Administrative Court (maistraatti) of

Helsinki rejected his request.

In 1989 the applicant instituted proceedings in the City Court

(raastuvanoikeus) of Helsinki requesting that he be granted access

rights. The court had at its disposal opinions from both the Finnish

and Swedish child welfare authorities. The Social Welfare Board

(sosiaalilautakunta) of Helsinki stated in its opinion that the child

should be given psychotherapy before visits between her and her father

could be arranged. Towards the end of 1989 and in 1990 the child

attended a children's hospital in Helsinki for psychotherapy.

On 7 September 1989 the City Court rejected the applicant's

request concerning his access rights. On 24 January 1990 the Court of

Appeal (hovioikeus) of Helsinki upheld the City Court's decision.

On 25 February 1992 the applicant instituted new proceedings in

the City Court requesting that he be granted access rights. The court

had at its disposal two medical reports, both to the effect that the

child's own opinion on visiting arrangements should be taken into

consideration. The child psychiatrist, who had met J both in 1989 and

again in 1992, stated that J had said clearly and repeatedly that she

did not want to see her father. The child psychiatrist stated further

that J's mental age corresponded to 13 years and that she had a mature

understanding of the realities of life.

The child's mother requested that J be heard in court. The

applicant objected to this request. The City Court decided not to hear

J in court. Instead it decided to ask for an opinion from the Social

Welfare Board since it found that this way of hearing the child's point

of view was more appropriate and less damaging for her.

In its opinion of 6 October 1992 the Social Welfare Board stated

that the applicant ought not to be granted access.

On 12 October 1992 the City Court rejected the applicant's

request for access. The City Court stated that J was twelve years old

and mature for her age. She had not met her father for nine years. She

had a close relationship with her new family (her mother, her step-

father and one step-sister). For her, the step-father was her only

father. The court further stated that she did not want to meet her

(biological) father and that she wished that she herself could take the

initiative as regards visiting him. On this basis the City Court found

that it was not in the interests of the child to grant the applicant

access rights. The court's judgment was based on sections 2, 9, 10, 11

and 12 of the 1983 Act on Custody and Visiting Rights with regard to

Children (laki lapsen huollosta ja tapaamisoikeudesta).

On 11 November 1992 the applicant appealed to the Court of Appeal

of Helsinki, which on 12 May 1993 upheld the City Court's judgment.

On 7 September 1993 the Supreme Court (korkein oikeus) refused

the applicant leave to appeal.

COMPLAINTS

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

his right to respect for his family life has been violated. He alleges

that the authorities have failed to take positive measures in order to

facilitate a reunion between himself and his daughter. He maintains,

furthermore, that his daughter's opinion is influenced by her mother's

opinion of the applicant.

2. The applicant complains further, under Article 6 of the

Convention, that his right to a hearing within a reasonable time has

been violated. He maintains that he instituted proceedings as early as

1987 and the final decision was taken only on 7 September 1993.

3. Under Article 13 of the Convention the applicant complains that

he has not had an effective remedy before a national authority, taking

into account the authorities' passivity, which had caused the ties

between the applicant and his daughter to be loosened.

4. Finally, in a letter of 15 July 1994, the applicant complained

that his right to enjoy equality with the child's mother in their

relationship with the child had been violated. He invokes Article 5 of

Protocol No. 7 to the Convention.

THE LAW

1. The applicant complains that the refusal to grant him right of

access to his daughter violates his right to respect for his family

life.

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."

The Commission notes, firstly, that the Convention entered into

force with respect to Finland on 10 May 1990. The facts that relate to

a period prior to this date are therefore outside the Commission's

competence ratione temporis. This applies to the enforcement

proceedings concerning the Swedish decision on access rights as well

as the first set of proceedings in Finland concerning access rights,

i.e. the proceedings which ended with the Court of Appeal's decision

on 24 January 1990 as well as the complaint concerning the alleged

failure of the public authorities to take positive action.

It follows that in so far as the applicant's complaints relate

to these proceedings, they are incompatible ratione temporis with the

provisions of the Convention and must be rejected under Article 27

para. 2 (Art. 27-2).

The Commission notes, however, that events prior to 10 May 1990

may be taken into account as a background to the issues before the

Commission.

In accordance with the Court's and Commission's established case-

law, the right to respect for family life within the meaning of Article

8 (Art. 8) of the Convention includes the right of a divorced parent

who is deprived of custody following the breakup of the marriage to

have access to or contact with his or her child. The boundaries between

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

not lend themselves to precise definition, but 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 and the community as a whole, and in both

contexts the State is recognised as enjoying a certain margin of

appreciation (see Hokkanen v. Finland judgment of 23 September 1994,

Series A no. 299-A, p. 20, para. 55).

In the present case the applicant is not a divorced parent, but

he had lived with his child and its mother for about one year after the

child's birth and he is her biological father. In these circumstances

the Commission assumes that the decision of the courts, in the final

resort in the Supreme Court on 7 September 1993, to refuse the

applicant's request for access rights interfered with the exercise of

his right to respect for his family life within the meaning of Article

8 para. 1 (Art. 8-1). The Commission must therefore examine whether the

interference complained of was justified under Article 8 para. 2

(Art. 8-2) of the Convention, i.e. whether the interference was in

accordance with the law and had an aim which was legitimate and

necessary in a democratic society.

The Commission notes that the decisions taken by the Finnish

courts were based on, inter alia, section 9 of the Act on Custody and

Visiting Rights with regard to Children. Under this provision the court

is empowered to decide on access. The interference was thus in

accordance with the law within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

As regards the legitimate aim the Commission has consistently

held that, in assessing the question of whether or not the refusal of

a right of access to the non-custodial parent was in conformity with

Article 8 (Art. 8) of the Convention, the interests of the child

predominate. The interference therefore has a legitimate aim in so far

as it was effected for the protection of the child's interests (cf. No.

7911/77, Dec. 12.12.77, D.R. 12 p. 192). There is no doubt that, in the

present case, the interference with the applicant's right under Article

8 (Art. 8) had this purpose. It remains to be considered whether the

interference was necessary in a democratic society for the protection

of the child's interest.

The Commission points out that in examining whether the

interference was necessary it does not intend to substitute its own

judgment for that of the competent domestic courts. Its function is to

assess, from the point of view of Article 8 (Art. 8), the decision

which those courts took in the exercise of their discretionary power.

It is an important function of the law in a democratic society

to provide safeguards in order to protect children from harm and

emotional suffering resulting, for instance, from the breakup of the

relationship between their parents. In such cases this purpose may be

achieved by keeping the child away from a situation which could be

detrimental to his or her psychological development owing to the

existence of a conflict of loyalty vis-à-vis one or both of the parents

and the inevitable parental pressure put on him or her causing feelings

of insecurity and distress (cf. Hendriks v. the Netherlands, Comm.

Report 8.3.82, para. 120, D.R. 29 p. 14).

In the present case the Commission finds that the competent

national courts carefully considered the applicant's request for access

to his daughter. The courts had at their disposal statements from two

doctors and an opinion from the local Social Welfare Board.

Furthermore, they had evidence to the effect that the child, who was

mature for her age, did not wish to meet her father. The courts came

to the conclusion that it was in the child's interest not to grant the

applicant access rights.

In these circumstances the Commission is satisfied that the

interference complained of, namely the refusal of the applicant's

request for a visiting arrangement, was required by the interests of

the child and that the courts, in so deciding, did not go beyond their

discretionary power.

The Commission has not overlooked the applicant's situation. The

absence of ones' child may cause considerable suffering to the non-

custodial parent. However, where, as in the present case, there is a

serious conflict between the interests of the child and one of its

parents which can only be resolved to the disadvantage of one of them,

the interest of the child must, under Article 8 (Art. 8), prevail.

The Commission concludes that the interference with the

applicant's right to respect for his family life, being proportionate

to the legitimate aim pursued, could be considered necessary in a

democratic society, within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention, for the protection of the rights and

freedoms of another person, namely the child concerned.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains further that his right to a hearing

within a reasonable time has been violated. He maintains that the

proceedings lasted from 1987 to 1993.

Article 6 (Art. 6) of the Convention reads, as far as relevant,

as follows:

"1. In the determination of his civil rights and

obligations ... , everyone is entitled to a ... hearing

within a reasonable time ... "

As regards the period to be considered, the Commission notes,

firstly, that although the applicant had at the end of the 1980s

instituted enforcement proceedings and, later in 1989, proceedings for

access rights, these proceedings were terminated in 1988 and in 1990,

respectively. These proceedings were completely separate from the fresh

proceedings which the applicant instituted in 1992. Thus the pre-1992

proceedings, which furthermore took place before the Convention entered

into force with regard to Finland, cannot be taken into account even

as a background in assessing the length of the relevant proceedings.

The Commission recalls that the applicant instituted new

proceedings concerning his access rights on 25 February 1992. The final

decision in this respect was taken by the Supreme Court on 7 September

1993. Thus the proceedings lasted altogether about 18 months.

The Commission reiterates that the reasonableness of the length

of proceedings must be assessed in the light of the circumstances of

the 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 (see Eur. Court H.R., Vernillo judgment of 20

February 1991, Series A no. 198, p. 12, para. 30).

The Commission notes that the case was not very complex as

regards either the legal issues or the facts. The proceedings in the

City Court lasted about seven months, during which the City Court

obtained an opinion from the local Social Welfare Board. The

proceedings in the Court of Appeal lasted from 11 November 1992 to 12

May 1993, i.e. six months. The proceedings in the Supreme Court lasted

about four months. Taking into account that the case was heard

altogether at three instances, the Commission considers that a

reasonable time was not exceeded.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant complains further that his right to have an

effective remedy before a national authority as regards his family life

has been violated. The applicant invokes Article 13 (Art. 13) of the

Convention, which 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."

The Commission notes that the applicant had the opportunity to

request access rights before national courts, which he indeed did. The

requirement of effectiveness does not mean that the outcome of the

proceedings should correspond to the applicant's objectives.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. Finally, the applicant complains that his rights as regards his

relationship with his child have not been respected equally with those

of his former partner. He invokes Article 5 of Protocol No. 7 (P7-5)

to the Convention, which reads as follows:

"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."

The Commission notes that the applicant and his former partner,

with whom the applicant has never been married, are not "spouses"

within the meaning of Article 5 of Protocol No. 7 (P7-5). This

provision is therefore not applicable in the instant case.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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KAIJALAINEN v. FINLAND

KAIJALAINEN v. FINLAND

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