FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38913/03 by M .N. against Finland

The European Court of Human Rights ( Fourth Section), sitting on 11 September 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr J. Šikuta , Mrs P. Hirvelä, judges , and Mrs F. Aracı, Deputy Section Registrar ,

Having regard to the above application lodged with the European Court of Human Rights on 2 December 2003,

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 M.N., is a Finnish national who was born in 1942. He is represented before the Court by Mr E. Sallinen, a lawyer practicing in Nakkila. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

A. The circumstances of the case

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

The applicant has a son, M., born in May 1991 out of wedlock. The applicant stopped cohabiting with M. ’ s mother, A., shortly after M. ’ s birth. A. was granted sole custody of M. and no access arrangements were made for the applicant. It appears that the applicant had barely any contact with his son in his early childhood.

Due to A. ’ s unstable life, child welfare officials intervened to give her support in caring for M. from the age of three months onwards. In December 1997, M., then aged six, was taken into public care for a period of seven months and placed with a substitute family (S.-V.), who lived some 20 kilometres away from the applicant ’ s home. Since then, this family has provided M. with support and respite and holiday care. In 1998 M. started psychological therapy.

On 2 February 2000, A. was hospitalised and M. moved to live with the S.-V. family. Ten days later A. died. M. continued to live with S.-V. Around that time the applicant began to visit M. regularly, and it appears that M. began to stay with him every other weekend.

On 14 November 2000, the local Social Welfare Board ( sosiaalilautakunta, socialnämnden ) decided to take M. into public care pursuant to the Child Welfare Act ( lastensuojelulaki, barnskyddslagen ) and ordered that he be placed with the S.-V. family. It appears that the applicant consented to the care order, and did not appeal against it.

Meanwhile, the Social Welfare Board instituted proceedings before the District Court ( käräjäoikeus, tingsrätten ), requesting that custody of M. be granted to his foster parents. During the proceedings, the applicant applied for custody. On 9 March 2001, the District Court decided that custody of M. should be granted to the applicant as he, as a biological parent, was willing to assume custody. In addition, the visits between the applicant and M. had taken place without difficulty.

In December 2001 the applicant requested the Social Welfare Board to remove his son from public care. The Social Welfare Board asked for a report on the applicant ’ s circumstances from the Social Welfare Board of the applicant ’ s home municipality. According to the report, the applicant had been unwilling, or unable, to cooperate. The social welfare officials considered that were M. to live with his father, his care, upbringing, supervision and other needs might not be guaranteed. They were not convinced that M. would be better off with his father. M. ’ s psychiatrist, Dr. P., filed an opinion with the Social Welfare Board, in which she reported that M. did not want to decide where he should live, but had said that he did not want further changes in his life and wished to continue going to the same school with his friends.

It appears that the applicant was invited to participate in two preparatory meetings held by the Social Welfare Board on 15 March and 2 April 2002. The applicant did not attend.

On 4 June 2002, the Social Welfare Board decided to refuse the request. It considered that the circumstances justifying M. ’ s continued public care still existed.

The applicant continued to meet M. regularly. It appears that although he was granted a right to have M. live with him for two extended periods in June and July 2002, for reasons attributable to the applicant the visits did not in fact take place.

The applicant challenged the care decision before the Turku Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ). He claimed that public care was contrary to M. ’ s interests. Further, the fact that he was M. ’ s biological father had been neglected in the decision-making. He maintained that if the decision had been based on the fact that he had never lived with M., it was deficient since he had never been given that possibility.

The Social Welfare Board submitted a statement to the court to which the applicant filed a response. Upon the request of the applicant, the Administrative Court held an oral hearing on 9 October 2002. In the hearing the applicant maintained that M. should live with him. He claimed that cooperation between the social welfare officials and the substitute family had been difficult. The court took evidence from a social worker, K., who stressed inter alia that M. had been provided with child welfare services since the age of three months. She also considered that cooperation with the applicant had been difficult and that he was socially restricted. The foster mother, S., told the court that the applicant had never visited them and that M. had developed significantly during his stay with the substitute family. M., then aged eleven, expressed the view that he would like to live with his father, although he had good relations with his foster parents and the other children living in the substitute family.

The Administrative Court upheld the decision on 30 October 2002. It found that the mere fact that the applicant had been granted custody of M. was not conclusive of the public care in issue. It went on to find that the applicant was reported as having been uncooperative with the social welfare officials, who could not rely on him to take day-to-day responsibility for M. As M. had had difficult experiences and had suffered bereavement in his childhood, the Administrative Court concluded that, in its assessment, the continuation of public care in the substitute family was in M. ’ s best interests.

On 2 December 2002, a care plan meeting was held at the home of the substitute family. According to the Government, the social welfare official reported that the applicant had behaved inappropriately at the meeting. This was contested by the applicant.

The Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ), having obtained written submissions from the Social Welfare Board and the applicant, upheld the public care decision on 16 September 2003.

In summer 2006 M. lived with the applicant for a month. He refused to return to the S.-V. family and on 18 July 2006, he was placed in a children ’ s foster home. When the re-placement was considered by the Social Welfare Board, M. did not object, and nor did he express the wish to live with the applicant. The applicant did not attend a preparatory hearing although allegedly invited. M. spent two weeks with the applicant over Christmas 2006.

B. Relevant domestic law

For an account of domestic law see K. and T. v. Finland [GC], no. 25702/94, §§ 94-133 , ECHR 2001 ‑ VII and R. v. Finland , no. 34141/96, §§ 54-58 , 30 May 2006 ). In addition, the provisions of particular relevance to the present case are described below.

Section 16 of the Child Welfare Act ( lastensuojelulaki, barnskyddslagen , Act no. 683/1983 as later amended) provides that the Social Welfare Board must take a child into care and provide substitute care for him or her if (a) the child ’ s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by alcohol or drug abuse, by committing an illegal act other than a minor offence or by any other comparable behaviour; (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) substitute care is considered to be in the best interests of the child.

According to section 20 of the Act, the Social Welfare Board must discharge a child from care when there is no longer any need for the care or substitute placement referred to in section 16, unless such discharge is clearly contrary to the best interests of the child. In determining the best interests of the child, the duration of the substitute care, the relationship between the child and the persons providing the substitute care, and the contacts between the child and his parents shall be taken into account.

COMPLAINTS

1. The applicant complained under Article 8 of the Convention that M. ’ s public care was not justified. He had been given custody and M. should, consequently, have been permitted to live with him. The refusal to ter minate the public care indicated that the authorities had not actively sought to reunite M. with him, the biological parent.

2. The applicant also complained under Article 6 of the Convention that the decisions by the domesti c courts lacked adequate reasons and that his arguments had not been duly taken into account.

T HE LAW

A. The alleged violation of Article 8

The applicant complained that his right to respect for his family life as safeguarded by Article 8 of the Convention had been violated on account of the placement of M. in public care and the refusal to terminate it.

Article 8 reads as follows:

“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.”

1. The parties ’ observations

The Government conceded that there was family life between M . and the applicant and that the impugned measures , namely the initial care order and the decision to continue the public care , amounted to interferences with his right to respect for his family life.

They noted that the measures had a basis in national law, namely the Child Welfare Act and the Child Custody and Right of Access Act. As to the legitimacy of the aim pursued, t he Government observed that there was nothing to suggest that the laws had been applied for any purpose other than to provide M. with safe and stable living conditions and to ensure his development in a secure environment. The care decisions were based on the best interests of M.

During M. ’ s early childhood the applicant had met his son only irregularly and for some years he had hardly had any contact with him. M. suffered the loss of his mother and the domestic authorities and courts concluded that it was in his best interests to stay with the substitute family in order to secure his development. In addition, the applicant had never lived permanently with M. or with any other child. The social welfare authorities, being well aware of the unsatisfactory situation, had tried to discuss the matter with the applicant without much success. T he Government noted that the applicant had always been invited to attend the care plan meetings, where he could have expressed his view on the public care. Finally, the applicant was entitled to maintain regular contact with M. and, indeed, M. ’ s visits to him had mostly taken place as planned and without difficulty.

The applicant, for his part, submitted that in the circumstances of the case the placement of M. in public care and the refusal to terminate it did not str ike a fair balance between the competing public and private interests involved . He argued that he had tried to maintain regular contact with his son during his childhood, but due to M. ’ s mother ’ s unstable personal situation, this had proved to be impossible. While admitting that stable living conditions were important for a child, he argued that there were many other elements to be taken into account in assessing where M. should live. M. should have been placed with him in 2000, and he could have continued to see his substitute family. Since A. ’ s death, the regular visits between the applicant and M. had been successful, indicating that he was indeed capable of being a good father.

He also considered that the social welfare officials had had a negative attitude of him, which had made him reluctant to trust or co-operate with them. Over the months and years, he had in vain repeated his wish to have M. live with him. The social welfare officials had conducted the meetings in a way which had made him feel unable to influence the decisions concerning M. ’ s placement.

2. The Court ’ s assessment

(a) The public care order

The Court recalls that under Article 35 § 1 of the Convention it may only deal with the matter after all domestic remedies have been exhausted. It appears from the documents submitted to the Court that the applicant did not appeal against the Social Welfare Board ’ s decision of 14 November 2000 by virtue of which M. was taken into public care and placed with the substitute family, S.-V.

It follows that in so far as the complaint concerns the public care order as such, it must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

(b) Termination of public care

The Court will examine the complaint in so far as it concerns the refusal to terminate the public care of M.

The mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention. Any such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 and can be regarded as “nec essary in a democratic society” (see among many other authorities H.K. v. Finland , no. 36065/97, § 105 , 26 September 2006 ).

The decision not to terminate M. ’ s public care in the instant case was taken on the ground that his best interests were served by his continuing to live with the S.-V. family. The Court does not doubt that the measure was “in accordance with the law” and pursued the legitimate aim of protecting the rights and freedoms of the child. It remains to be considered whether it was “necessary in a democratic society”.

In that context, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify these measures were relevant and sufficient for the purpose of paragraph 2 of Article 8 (see, inter alia , Olsson v. Sweden (no. 1) , judgment of 24 March 1988, Series A no 1 30, p. 32, § 68). It must also be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned (see Olsson v. Sweden (no. 2) , judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90). It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, for instance, Hokkanen v. Finland , judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55 ).

As the Court has reiterated time and again, the taking of a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child. In this regard a fair balance has to be struck between the interests of the child in remaining in the public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which may override those of the parent. In particular, the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child ’ s health and development (see among many other authorities Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 169 , ECHR 2000 ‑ VIII ). After a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited ( K.A. v. Finland , no. 27751/95, § 138 , 14 January 2003 ).

Further, whereas the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into public care, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed. The minimum to be expected of the authorities is to examine the situation anew from time to time to see whether there has been any improvement in the family ’ s situation. The possibilities of reunification will be progressively diminished and eventually destroyed if the biological parents and the child are not allowed to meet each other at all, or only so rarely that no natural bonding between them is likely to occur (see K. and T. v. Finland [GC], cited above , § 151, 154-155, 173, 178-179).

As to the instant application, the applicant - who had never lived in the same household with M. – did not contest the Social Welfare Board ’ s initial decision to take M. into public care and to place him with the S.-V. family, where he lived from February 2000 when he was almost nine years old. M. lived in the substitute family for almost two years until the applicant requested termination of the public care. As reported by the social welfare officials, M. had by that time become well-integrated into the substitute family, having developed solid and stable relationships with his foster parents. He had experienced major changes in his life, and it was considered to be important for his upbringing and development that he was ensured stable living conditions with the substitute family. It is therefore apparent that the maintaining of public care was based on valid reasons.

The Court attaches weight to the fact that the refusal to terminate M. ’ s public care did not totally deprive the applicant of his family life with the child. The applicant ’ s right to visit M. was never restricted. On the contrary, the authorities tried to maintain a close relationship between the applicant and his son by ensuring regular contacts between them. The applicant was at all times allowed to see his child twice a month and for longer spells during holiday periods (c.f. R. v. Finland , no. 34141/96, § 92 , 30 May 2006 ).

The Court further notes that although Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by that Article (see among many other authorities Nanning v. Germany , no. 39741/02 , § 66, 19 June 2007) . In the instant case there is nothing to suggest that the applicant was not involved in the decision-making process to a degree required for the protection of his interests. The applicant was invited to attend meetings held by the social welfare authorities when the termination of public care was under consideration. In addition, the applicant, who was represented by counsel, was able to submit throughout the proceedings all arguments he considered relevant to his case. He was also heard at the oral hearing before the Administrative Court and had full knowledge of the information relied on by the authorities in recommending that M. should continue to be subject to the public care measure.

Against this background, and having regard to the assessment of the child ’ s best interests made by the social welfare authorities and the domestic courts, and to the fact that the applicant ’ s access rights have never been restricted, the Court is satisfied that the continuation of the public care did not exceed the State ’ s margin of appreciation.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The alleged violation of Article 6 § 1

The applicant also complained, under Article 6 § 1 of the Convention, that the proceedings were unfair.

Article 6 § 1 of the Convention reads in relevant part:

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

The Court has found above that the procedural requirements inherent in Article 8 were complied with by both the domestic authorities and the domestic courts. In particular, t h ere is no indication that t he proceedings before the Administrative Court were in any way unfair or that the decision taken was not supported by adequate reasons. It cannot therefore be conclude d that the applicant was deprived of a fair hearing within the meaning of Article 6 § 1 of the Convention .

It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The Court ’ s conclusion

The Court concludes that the applica nt ’ s complaints are inadmissible. T he application of Article 29 § 3 of the Convention to the case should therefore be discontinued .

For these reason s, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Nicolas Bratza Deputy Registrar President