FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18249/02 by C. against Finland

The European Court of Human Rights (Fourth Section), sitting on 5 April 2005 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr M. Pellonpää , Mr R. Maruste , Mr K. Traja , Ms L. Mijović , Mr J. Šikuta , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 18 April 2002 ,

Having regard to the partial decision of 20 January 2004 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr C. , is a British national who was born in 1955 and lives in Cartigny , Switzerland . He was represented before the Court by Mr Jean-Bernard Waeber , a lawyer practising in Geneva .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant and his wife, B., who was of Finnish origin, had two children, a boy T. born on 2 June 1987 and a girl A. born on 28 September 1989 . The family lived together in Switzerland until 1993 when B. took the children to Finland where she took up residence with L. as her female partner.

On 10 June 1994 , B. applied for divorce and for custody of the children.

On 10 October 1994 the parents reached an interim agreement whereby the children would stay in Finland with their mother for the moment and the applicant have the right to three supervised visits.

The applicant states that on 13 October 1994 he became aware that the children ' s maternal grandmother had made a complaint to the social services against B. ' s female partner, L., alleging that she had sexually abused A. There is some indication in the documents that the applicant may also have lodged a complaint on this ground. The criminal charges lodged against L. were later dismissed by the courts.

Meanwhile, it appears that the applicant took proceedings with a view to having the children returned to Switzerland under the Hague Convention. However, by decisions of the Court of Appeal dated 7 December 1994 and by the Supreme Court dated 15 June 1995, the applicant ' s application for return was refused, principally on the ground that he had voluntarily entered into an interim agreement that the children remain in Finland with their mother.

On 20 August 1996 , the District Court awarded sole custody of the children to the mother, finding that the children had lived with their mother in Finland since 1993 and that it was in their best interests to remain with her. On 8 July 1997 , the Court of Appeal upheld this decision, as did the Supreme Court on 14 November 1997 .

The applicant was however granted visiting rights. It appears that the children visited him in Switzerland during Easter and the summer of 1997 and met with him in Finland in 1998 (twice) and 1999 (three times) .

On 30 August 1999 , B., the mother, died. The children were then aged twelve and nine years respectively.

The applicant returned immediately to Finland . On 23 September 1999 , he lodged a request that the children, still living with L., be placed in a foster home and that he be accorded visiting rights.

Applications for custody of the children were lodged by both L. and by the applicant. During October 1999, the children were interviewed twice by a team consisting of a child psychiatrist and two psychologists. They expressed their wish to stay with L. because they felt safe and were used to living with her. A. was reported as stating that she would like to meet the applicant occasionally but only when she wished, while T. was reported as stating that the applicant was not part of his family and that he neither wanted to meet him or live in Switzerland .

The applicant saw the children three times during September 1999 in supervised contact visits. There was another meeting outside the social workers ' premises.

In a Social Welfare Board report dated 26 October 1999 , it was stated that, following the mother ' s death, L. ' s influence on the children had increased and the children turned to her for support. It was noted that the children were not able to act against L. ' s will, because they were dependent on her at that time. Consequently, the children were in a state of conflict, as they were not allowed to like the applicant. The report considered that the lack of contact with their close relatives endangered the development of their identity.

On 21 December 1999 , after an oral hearing at which the applicant, L. and another 18 witnesses, including a number of social workers involved in the case, were heard, the District Court awarded custody to the applicant. It observed inter alia , that according to the evidence, L. had been involved in bringing up the children since their return to Finland . According to a number of social workers involved in the case, the applicant was considered fit to be a custodial parent as , for example, in dealing with conflicts he had always put the children ' s best interests first. The meetings between the children had also gone well. It concluded that in fact both L. and the applicant were fit as custodians.

As regarded the views of the children, the District Court recalled that according to a statement of 23 February 1998 given by a social worker during previous proceedings, T. ' s wishes were not entirely his own; he had been influenced by B., his mother. His wishes were in contradiction with what he had told the social worker about the meetings with the applicant which had taken place. The social worker had noted that the fact that B. did not want T. to travel to see the applicant was significant and pointed out that it would be very important for the children ' s psychological development that they develop a more constructive view of the applicant. It recalled the evidence of a friend of B. and L. , who had given evidence before the court, had stated that the children ' s attitude towards the applicant had begun to be more positive from the summer of 1998, but that no meetings had taken place as from March 1999, apparently due to the fact that the children ' s activities were given priority and the meetings with the applicant tended to be proposed at short notice. T. had told her that it would be alright to meet with the applicant if he could decide when. A. had told her that she would like to meet with the applicant some day, but not at that time. T. ' s attitude towards meeting the applicant was therefore fairly positive. Following B. ' s death, everything had changed when the applicant came to see his children. As he allegedly had said that the law would make the children move to live in Switzerland , they did not want to meet with him anymore. According to this witness , the children feared moving to Switzerland .

The District Court considered that T. ' s attitude during the recent interviews was in contradiction with what had happened during the meetings with the applicant, which had all gone well. It found that none of the persons heard before the court had said that the children feared the applicant and concluded that, as the atmosphere in which the children had been living had obviously affected their wishes and hopes, it was not possible to analyse what their true views really were. Therefore, their expressed wishes could not be decisive when deciding the case. Noting that the case should be decided in accordance with the children ' s best interests, it decided that, given the strained relations between L. and the applicant, custody should be awarded to the latter. It was evident that L. would not be able to encourage the relationship between the children and the applicant enabling them to stay in contact. Therefore, the District Court ordered that custody be awarded to the applicant.

Pending L. ' s appeal against the decision, the enforcement of the order was suspended by the Court of Appeal on 22 December 1999 . According to the evidence of various social workers, the children had reacted to his expressed intention of taking them to Switzerland by refusing to meet with him unless L. was present. The applicant allegedly refused to meet with the children under these terms. The applicant ' s attempts to enforce contact visits also apparently failed due to the children ' s refusal to see him.

On 3 April 2000 , the Court of Appeal overturned the decision concerning the suspension and requested the Social Welfare Board and its Swiss counterpart to report on the case. During the period June-September 2000, pursuant to the court ' s request, the children were interviewed five times by social workers, three times in the presence of L. and twice alone. The social workers ' efforts to arrange a meeting between the children and the applicant were unsuccessful due to the children ' s opposition. It was reported by the social worker in later oral evidence that the children continued to express their wish to live with L. During the interviews , the children had turned to L. for support and been dependent on her. The children ' s memories of the applicant were, however, good. Nothing suggested that the children would have had any reason to feel unsafe in the applicant ' s company. According to one of the social workers at the meetings, the wishes that the children expressed were more dependent on the wishes of L. than their own will. According to the evidence given by other witnesses in the Court of Appeal, including other social workers, the children expressed their wish to be left alone and that they wanted to stay in Finland every time the applicant was brought up for discussion. They seemed to fear moving to Switzerland .

Meanwhile, it appears that the applicant applied to the District Court for its original order to be enforced. This request was refused on 31 August 2000 . His appeal to the Court of Appeal was later rejected on 28 June 2001 as meanwhile it had reached a fresh decision in the case. An application by the applicant to have the children placed in a foster home away from L. was also dismissed by the Social Welfare Board on 5 April 2000 and his appeal rejected by the Administrative Court of Helsinki on 19 December 2000.

On 23 March 2001 , after an oral hearing over four days during February and at which the applicant and L. were heard as well as eleven other witnesses from the District Court proceedings and four new witnesses, the Court of Appeal upheld the District Court ' s judgment. It ordered that the children move to live with the applicant on 16 August 2001 , after a transitional period during which the children could meet with the applicant one weekend per month and one week during the summer.

In its judgment, the Court of Appeal agreed that both L. and the applicant were fit to have custody: nothing suggested that they would not be fit. Given the ages of the children, it considered that their view had to be taken into account, but it was also evident that the strained relationship and litigation between the applicant and B., and later on L., had had influence on their view. It considered that the negative attitude towards meeting with the applicant was based on the fear of having to move to Switzerland . Nothing suggested that the children feared the applicant as such. Although the children were as mature as other children their age, they could not however be given the absolute right to decide on their future, particularly in light of their extremely difficult situation at that time. Concluding that the decision should be based on what was in their best interests, it found that the relationship between the children and the applicant was very important for a well-balanced development. It furthermore found that the fact that the applicant had said that he would allow the children to keep in touch with L. was in the best interests of the children. While it was true that the children appeared closer to L. and their environment (including their home, school, hobbies and close personal relations) would stay the same if custody was awarded to L., the Court of Appeal concluded, nonetheless, that the children ' s views did not correspond to their best interests. A situation which would lead the children and the applicant drift further apart was not in their best interests. Accordingly, it ordered that the applicant be awarded custody from 16 August 2001 after a transitional period of increased contact with the children.

The applicant visited Finland in March, April and May 2001, requesting visits with his children. The authorities addressed them to L. but did not take any step to require her co-operation. On only one occasion, in May 2001, L. accepted that the children see the applicant at their maternal grandmother ' s. However, only T. appeared, accompanied by a friend and one of L. ' s lawyers.

L. applied for leave to appeal. On 20 June 2001 , the Supreme Court granted L. leave to appeal and suspended the enforcement of the Court of Appeal ' s order. L. applied for an oral hearing, requesting that the parties, and possibly also the children, be heard. In his submissions to the Supreme Court in reply, the applicant applied for interim visiting rights and for the current psychological state of the children to be examined. He also requested that if L. ' s request for an oral hearing was granted the Supreme Court should rehear the evidence presented before the lower courts.

On 19 October 2001 , the Supreme Court re-iterated that it had rejected the request for an interim order as being purposeless and the request for a psychological examination as being unnecessary. It also rejected the request for an oral hearing as unnecessary in the circumstances and for the reasons set out in its judgment.

The Supreme Court recalled that, according to the Custody Act, the issue of custody had to be decided with regard to the child ' s best interests and that if the custodial parent of the children died, custody could be given either to the other parent or to another person, depending on where the best interests of the child lay. It agreed with both the lower courts that the applicant and L. were both fit to act as custodians. Both children however had said that they wanted to stay in the environment which they knew and with L. Their views had been thoroughly examined before both the District Court and the Court of Appeal and although the conflict between the adults had apparently disturbed the relationship between the children and the applicant, there was nothing to suggest that their wish to remain with L. was not their own independent opinion, in particular given their age and maturity.

The Supreme Court referred to section 2 of the Act on the Enforcement of Decisions concerning Custody and Access Rights and recalling that T. was 14 and A. was 12, found that a custody decision which required the children to move would not be possible to enforce. Having regard to the purpose of awarding custody, it would not be in the children ' s best interests to issue a custody order to a parent to whom they could not be transferred against their will. As the relations between the applicant and L. were bad, there was no reason to consider that it would be possible for the applicant to have custody while they continued to live with L. as that would render it impossible to take practical decisions concerning the children ' s lives. In the circumstances of this case, it was therefore not in the best interests of the children to transfer custody to the applicant against their will but custody should be awarded instead to the person with whom they were currently living.

As regarded visiting rights, the Supreme Court noted that contact visits could be carried out under agreement or court order but that given the age of the children it would be dependent on their willingness to see the applicant. It noted that according to the Custody Act, the custodian of children was under an obligation to co-operate in order to promote and maintain relationships between children and a parent. It did not make any order on the point.

The Supreme Court therefore overturned the decisions of the lower courts and awarded custody to L.

On 16 April 2002 , the Administrative Court of Helsinki dismissed the applicant ' s renewed request for the children to be placed in a foster home.

B. Rele vant domestic law and practice

1. Custody and a ccess

Custody of children is governed by the 1983 Act on Child Custody and Right of Acces s with regard to Children ( laki 361/83 lapsen huollosta ja tapaamisoikeudesta , lag 361/83 ang . vårdnad om barn och umgängesrätt – “the 1983 Act”). Section 1 provides that the aim of such custody is to ensure the child ' s balanced development and well-being, regard being had to the latter ' s special needs and wishes, as well as to encourage a close relationship between the child and the parents.

The c ourt may order that custody of a child be entrusted to one or more persons together with, or instead of, the parents (section 9 § 1). It may transfer custody from the parents to other persons only if, from the child ' s point of view, there are particularly strong reasons for doing so (section 9 § 2). It is also empowered to decide on access (section 9). The aim of access is to secure a child ' s right to maintain contacts with a parent with whom he or she is not living (section 2).

In deciding on matters of custody and access the competent court must take into account the wishes and interests of the child in accordance with the following considerations: primary emphasis must be placed on the interests of the child and particular regard should be had to the most effective means of implementing custody and access rights in the future (section 9 § 4 and section 10 § 1); the child ' s views and wishes must, if possible and depending on its age and maturity, be obtained if the parents are unable to agree on the matter or if the child is being cared for by a person other than its custodian or if it is deemed necessary in the latter ' s interests; the consultation must be carried out in a tactful manner, taking into account the child ' s maturity and without causing harm to its relations with the parents (section 11).

2. Enforcement of custody and access rights

Section 2 of the Act on the Enforcement of Decisions concerning Custody and Access Rights ( laki 619/1996 lapsen huoltoa ja tapaamisoikeutta koskevan päätöksen täytäntöönpanosta , lag 619/1996 om verkställighet av beslut beträffande vårdnad om barn och umgängesrätt ), which entered into force on 1 December 1996, provides that if a child has reached the age of twelve, enforcement must not take place against the child ' s will. Enforcement must not take place against the will of a younger child, if the child is sufficiently mature for its wish to be taken into account.

COMPLAINTS

The applicant complained under Article 8 of the Convention that the Supreme Court overturned the judgments of two lower courts which had ordered awarded him custody of his children and that he was not given adequate contact with his children during the proceedings or any order for contact made after the proceedings; and under Article 6 of the Convention that the Supreme Court did not hold an oral hearing or call further witnesses.

The applicant complained, in his observations submitted on 8 November 2004, that events also disclosed violations of Article 13 of the Convention and Article 5 of Protocol No. 7.

THE LAW

The applicant complained of the decision and procedure adopted by the Supreme Court in reversing the judgments of two lower courts which had awarded him custody of his children. He also complained of the extremely limited contact which took place during the proceedings and the failure to order any contact afterwards.

Article 8 of the Convention provides as relevant:

“1. Everyone has the right to respect for his ... family life ...

2. T here 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.”

Article 6 § 1 of the Convention provides as relevant

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government acknowledged that the impugned measures interfered with the applicant ' s right to respect for his family life but submitted that they were "in accordance with the law" and pursued the protection of health and morals of the children in question, namely to provide them with stable and safe living conditions and secure their development. They further submitted that the measures were necessary in a democratic society. They pointed out that the national authorities had the benefit of contact with the persons concerned and that a parent is not entitled under Article 8 to have measures taken which would harm a child ' s health or development.

The Supreme Court found in its judgment that it was not in the interests of the children to issue a custody order to a parent to whom they could not be transferred against their will. Domestic law required that the children ' s wishes and opinions be taken into account. When the Supreme Court gave its decision on 19 October 2001 T. was fourteen and A. twelve. They had lived permanently in Finland for eight years and had lived with their mother ' s partner, L., since their mother ' s death on 30 August 1999 . The two children had been consistent in their views throughout the proceedings, as shown by the various reports of the Social Welfare Office and the report of the conciliators which were based on meetings with the children. They referred to cases where the domestic courts had been entitled to take into account the views of children who were sufficiently mature ( Hokkanen v. Finland , judgment of 23 September 1994, Series A, no. 299-A, § 62; Sommerfeld v. Germany , no. 31871/96, ECHR 2003-VIII, § 65). Similarly, the Supreme Court acknowledged that it was not possible to enforce contact against the children ' s expressed will. Since the custody order could not have been enforced against their will, the children would otherwise have been left with L. rendering decisions about their school and health problematic as the applicant lived in Switzerland and relations between him and L. were bad. As the children ' s views had been repeatedly and thoroughly examined, the Supreme Court has sufficient reasons to assess the consequence of any custody order in the applicant ' s favour. On the basis of the evidence, it reached the view that their wish to remain with L. was their own and independent opinion. The applicant had full opportunity, orally and in writing, with the assistance of counsel to put forward his interests and he had access to all relevant information.

As regarded Article 6, the Government pointed out that there was no absolute right to an oral hearing. The Supreme Court was under no obligation to do so under domestic law. It had been L. who had applied for an oral hearing. The applicant had only approached the matter conditionally, stating that if they granted L. an oral hearing he requested the court to rehear all the evidence from the lower courts. In the circumstances, he could reasonably be regarded as having waived his right to an oral hearing. The Supreme Court rejected L. ' s request for a hearing as unnecessary. It was already accepted in both lower courts that L. and the applicant were fit custodians. As regarded the applicant ' s request for the current psychological state of the children to be examined, it found this was also unnecessary as the children had firmly and consistently said that they wished to remain in a familiar environment with L. In their view, therefore, there was no unfairness disclosed by the procedure before the Supreme Court.

The applicant submitted that the Supreme Court had found it in the best interests of the children to place them with L. despite the fact that a medical report showed that she suffered from psychiatric problems linked to alcohol and that she had deliberately blocked the children ' s contact with their father. The court accorded an unreasonable weight to the opinion and age of the children. The children had been under the influence of L. who had cut their links with their father over two years yet the court did not order any examination of the substance or voluntariness of their views but merely relied on the fact that the youngest child had turned twelve. I n doing so it overturned the decisions of two lower courts without further explanation or reasoning, although those courts had found it was in the children ' s best interests to be with their father. The court applied the criteria of age automatically without regard to issues of maturity or voluntariness of the views expressed. While children ' s views had to be taken into account, they did not have to be regarded as decisive. The applicant submitted that under L. ' s influence they had not been free to form their own opinion but had been manipulated. Prior to the mother ' s death, he had had excellent relations with the children, visiting Finland and obtaining their visit to Switzerland on two occasions. They had no reason to fear him or refuse to see. It was L. who turned the children against him and told them that he would force them to go to Switzerland and put them in a children ' s home, in order to keep them with her.

The applicant pointed out that he had enjoyed the right to have contact with the children but that L. had deliberately flouted the court decisions giving him that right. Nor had the authorities taken any step to enforce his right. He referred to the fundamental importance of a child ' s relationship with its biological parents and argued that generally custody should be given to such a parent who is best placed to ensure the emotional security and psychological welfare of the child. It would require compelling circumstances where one parent died to take custody from the remaining parent. The reports showed that the applicant was a competent parent, with understanding of the children ' s needs, whereas the social and judicial authorities ' views that L. was a fit parent were contradicted by her medical file, showing her serious and longstanding mental problems, which included violent delusional thoughts concerning the applicant and the maternal grandmother. In reaching its decision on custody, the Supreme Court also failed to make any order concerning access or to make any investigation into the issue and in so doing effectively approved the situation brought about illegally by L., who had no rights in respect of the children. The applicant concluded that the facts of the case disclosed violations of Articles 6, 8 and 13 of the Convention and Article 5 of Protocol No. 7.

The Court ' s assessment

1. The Court notes that the applicant ' s complaints under Article 5 of Protocol No. 7 concerning equality between spouses arising out of the previous custody proceedings involving his wife have already been rejected in a previous decision and his attempt to raise them in the context of this application rejected under Article 35 § 2(b) in the partial decision on admissibility of 20 January 2004 . The Court declines to reconsider the issue again.

2. Insofar as the applicant complains under Article 13 of the Convention that there is no effective remedy against the decision of the Supreme Court, the Court recalls that Article 13 cannot be interpreted as requiring a remedy against the decision of the highes t instance in a court procedure (see, mutatis mutandis , Pizzetti v. Italy , Commission report of 26 February 1993, Series A no. 257 ‑ C, § 41).

3. Having regard to the applicant ' s remaining complaints and the parties ' submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ' s complaints concerning the Supreme Court decision overturning the lower courts ' decision awarding him custody of his chi ldren and concerning his access to his children ;

Declares the remainder of the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President