FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65040/01 by Jenn Aimar KAJARI against Finland

The European Court of Human Rights (Fourth Section), sitting on 14 February 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Mr J. Borrego Borrego , Ms L. Mijović , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 4 December 2000 ,

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 Jenn Aimar Kajari , is an Estonian national who was born in 1944 and lives in Tallinn . He is represented before the Court by Mr I. Grazin and Mr H. Vallikivi , lawyers practising in Tallinn . The Government are represented by their Agent, Mr Arto Kosonen , Director in the Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties and as they appear from the documents , may be summarised as follows.

Background

The applicant and another Estonian national have a daughter born out of wedlock in 1992. On 31 July 1994 mother and daughter arrived in Finland . On 17 February 1995 their residence there was officially registered. In 1994-1998 the daughter lived both with her father in Estonia and with her mother in Finland in accordance with an agreement between the parents.

According to the Government, on 18 January 1995 the applicant gave his written consent to the child ’ s temporary stay in Finland and on 5 February 1995 he gave his consent that s he stay permanently in Finland, presupposing that his visiting rights woul d not be affected .

According to the applicant, he and the mother agreed in writing on 3 February 1995 that they would participate equally in the care of their daughter and that she would spend an equal amount of time, about one month at a time, with each parent.

On 8 December 1995 the applicant and the mother agreed that neither of them would pay the other maintenance in respect of their daughter. On 19 December 1995 the agreement was confirmed by the Social Welfare Board ( sosiaalilautakunta , socialnämnden ) of Harjavalta , Finland .

On 17 August 1998 the mother removed the child from day care in Tallinn and brought her to Finland .

C ustody proceedings

On 12 November 1998 the mother instituted custody proceedings in the District Court ( käräjäoikeus , tingsrätten ) of Kokemäki , Finland , following which the court made an interim order awarding her sole custody.

The court received the Social Welfare Board’s of Harjavalta and the Social Welfare and Health Care Department’s ( Sotsiaal - ja Tervishoiuamet ) of Tallinn written opinions on the assessment of the parents and their living conditions. The Finnish authority had interviewed the mother, the child and her brother, the mother’s partner and the child’s day care teacher. It did not interview the applicant nor did its Estonian counterpart interview anyone other than the applicant. It appears that the authorities did not contact each other before submitting their opinions.

The District Court held two hearings, on 17 May and 4 June 1999 , during which the parents with counsel were present. It received evidence from the parties and several witnesses. In its decision of 9 June 1999 the court found that the Finnish courts had jurisdiction and that Finnish law was applicable to the case. The court held that as the parents were unable to agree on matters relating to custody, custody should be awarded to the mother alone. The court reached its decision having had regard to all the circumstances and evidence submitted to it and having assessed the case also in the light of the written opinions of the relevant social welfare authorities.

On 10 December 1999 the Turku Court of Appeal ( hovioikeus , hovrätten ), having held a hearing, rejected the applicant’s appeal. It held that the Finnish courts had jurisdiction because the child resided in Finland and had a close connection with the country. It also agreed with the lower court that Finnish law was applicable. As the parents’ agreement of February 1995 had not been confirmed by the Social Welfare Board, the custody had not been settled prior to the proceedings in question. Further, the court found that the child’s living conditions with the mother were balanced and solid. As the parents were unable to make decisions together relating to their daughter’s custody, the court saw no reason to amend the lower court’s decision.

On 12 June 2000 the Supreme Court ( korkein oikeus , högsta domstolen ) refused leave to appeal.

In 2002 the applicant lodged an application with the Finnish Ministry of Justice ( oikeusministeriö , justitieministeriet ) in order to have the child returned to Estonia under the Hague Convention on the Civil Aspects of International Child Abduction. The application was rejected, since it had already been confirmed by the above-mentioned courts that the child’s habitual residence was in Finland . Thus, the Hague Convention did not operate.

Meanwhile, on 28 August 1998 the applicant instituted custody proceedings before the Tallinn City Court ( Tallinna Linnakohus ). In June 1999 the proceedings were suspended “until clarification of the issue of proper forum”. There is no information on whether the case is still pending.

Access proceedings

On 26 January 2000 the applicant instituted access proceedings before the District Court of Kokemäki . He requested that the child be allowed to visit him once a month from Friday evening until Sunday evening and during some of the holidays.

On 9 June the court received a written opinion from the Social Welfare Board of Harjavalta , which had interviewed the mother and her partner on several occasions. Also the daughter had been interviewed at her home. The applicant had been interviewed over the telephone and he had submitted some documents in support of his access claim.

On 6 July 2000 the court held a hearing during which the parents with their counsel were present. It received written and oral evidence.

On 14 July 2000 the court ordered that the child should have the right to meet with the applicant every other Friday from 12 noon to 6 p.m. under the supervision of a social worker at the child’s domicile. The mother was to assume responsibility for transporting their daughter to these meetings and for bearing the transportation costs. The court considered that the visits should be supervised owing to the fact that the applicant and the child had not met regularly for two years. One of the factors that contributed to this conclusion was that the applicant had allegedly tried to abduct the child. Further, as to the view of the Social Welfare Board that access should be granted twice a month for three hours at a time, the court found that three hours was too short a period in order to develop a trusting relationship between the applicant and his daughter and accordingly, it ordered that the visits should last six hours at a time. Lastly, the court emphasised that the access arrangements could be altered in the future, if need be.

On 9 March 2001 the Turku Court of Appeal rejected the applicant’s appeal without an oral hearing. As to the allegedly unfair District Court proceedings, it found that the applicant had been able to submit evidence, which fact transpired from the decision. In its decision the District Court had stated what evidence had been submitted to it. As to the merits, the Court of Appeal found no reason to amend the lower court’s decision.

On 30 July 2001 the Supreme Court refused leave to appeal.

B. Relevant domestic law and practice

Jurisdiction and applicable law

A case relating to child custody or right of access may be considered in a Finnish court if the child has his or her habitual residence in Finland or has other close ties to Finland . A child , who has lived in Finland without interruption for at least one year before the case is brought, shall be deemed to have his or her habitual residence t here, unless otherwise shown in the case . If Finland has become the main living environment of the child, even a shorter period of time than one year may form the basis for the jurisdiction of a Finnish court ( sections 19 (186/1994) and 20 of the Child Custody and Right of Access Act ( laki lasten huollosta ja tapaamisoikeudesta , l ag angående vårdnad om barn och umgängesrätt ; 361/1983 ) .

A Finnish court is competent to issue interim orders in cases concerning custody and right of access, even though it is lacking jurisdiction as to the merits of the case (section 21; 186/1994) .

Finnish law applies to cases relating to child cu stody or right of access and to the confirm ation of agreement s (s ection 22 ; 186/1994).

C ustody and right of access

Custody and right of access may be organised either by an agreement that is confirmed by the Social Welfare Board or by a court decision. The parents can have joint custody, custody can be awarded to one of the parents or to some one else who has consented thereto. The child ha s the right to maintain contact and meet with the parent with whom he or she no longer resides (sections 7, 8 (186/1994) and 9). When making a decision relating to custody and right of access, the best interests and the wishes of the child must be taken into account ( sections 10 and 11 ) .

Recognition and enforcement of a foreign custody agreement

W hen a child has domicile in Finland at the time of conclusion of an agreement on his or her custody, the agreement has to be made in accordance with Finnish law, even if all the parties are of a foreign nationality. In order for the agreement to be valid, it has to be confirmed by the Social Welfare Board (section 8). Alternatively, the question of custody may be decided by a court. A n agreement concluded without the confirmation of an authority may upon request be recognised and enforced in Finland as a decision given in a foreign State, if the measure is legally valid and enforceable in the State where the child had habitual residence at the time of conclusion of the agreement (section 23).

In order to have an agreement enforced in Finland it must first be recognised by the Helsinki Court of Appeal (section 25; 186/1994).

Changing an agreement or review of a court order

A parent may at any time institute proceedings in a case relating to custody or right of access (section 14). An agreement or a court order may be amended if the circumstances have change d (section 12).

Report by the Social Welfare Board

In order to decide on a case relating to child custody or right of access, the court must, unless unnecessary, request the Social Welfare Board to prepare a report on the circumstances of the case. The court is not bound by the report, which states the circumstances as the social welfare authorities see them and the Social Welfare Board’s opinion on how custody or rights of access could be arranged (section 16; 186/1994).

Discretion of the court

In cases where the parents are unable to reach an agreement on custody or right s of access, the case will be decided by the court. The guiding principle is the best interests of the child. Special attention shall be paid to the manner in which custody or right of access may best be realised (section 10).

Ascertain ing the child’s wishes and views

The child’s wishes and views must be ascertained as far as possible in view of the child’s age and stage of development . The views of the child shall be ascertained tactfully, taking his or her stage of development into account, and in a manner not detrimental to the relationships between the child and the parents (section 11).

In normal circumstances a twelve-year-old is considered mature enough to express his or her views. The interview of a child is usually conducted by the social welfare authorities and at the child’s home. However, the court may decide to hear the child in person, if there are important reasons for doing so, the child does not object to it and it causes no harm to the child (section 15).

COMPLAINTS

1. As to the custody proceedings,

(a) the applicant complained, under Article 6 § 1 of the Convention, that the courts in Finland were not the correct forum, since the mother had abducted the child from Estonia at a time when the child was not yet a Finnish resident within the meaning of Finnish law. The case should therefore have been dealt with under Estonian law;

(b) he also complained that the decisions were not duly reasoned and the courts violated the equality-of-arms principle, disregarding the applicant’s arguments and most of the evidence submitted by him without giving proper reasons for doing so. In short, the applicant was not afforded a reasonable opportunity to present his case and thus, he was denied a fair trial;

(c) he complained, under Article 8, that divesting him of custody of his daughter violated his right to respect for family life. The courts disregarded the fact that the parents had made an agreement, binding at least under Estonian law, concerning joint custody. Moreover, the Social Welfare Board acted in a partial manner and did not hear the applicant before it gave its written opinion to the District Court. The courts overstepped their margin of appreciation in evaluating the evidence before them and reached decisions that were not in the child’s best interests;

(d) he complained, under Article 8 in conjunction with Article 14, that the decisions in the custody case were based on one-sided evidence. Information given by the applicant was excluded, which led to his being discriminated against when the matter was decided.

2. As to the access proceedings,

(a) the applicant complained, under Article 8, that the case was prepared in a poor and passive manner by the Social Welfare Board. On his own initiative he was eventually able to be interviewed over the telephone. Its written opinion to the District Court, stating that there was a risk that the applicant might abduct the child, was biased and superficial and could not be regarded as an expert opinion;

(b) he complained that his right to access to his child had been overly restricted by the courts’ decisions and fixed in a manner that made it effectively impossible for him to develop or to even maintain his relationship with his child: the daughter attends school on weekdays and due to the long journey between Estonia and her home it is impossible for the applicant to arrive at noon and to stay until six o’clock in the evening. The courts did not take the applicant’s rights as a father into account at all. The daughter should have been heard before the courts to find out her opinion, or at least to verify the reasons she had, according to the Social Welfare Board, expressed for her reservations as to meeting the applicant alone. The decisions did not strike a fair balance between the applicant’s rights and other interests involved, and moreover, they were not even properly reasoned;

(c) he complained, under Article 8 in conjunction with Article 14, that he was discriminated against as a father in the access proceedings, since the Social Welfare Board did not take into account his right to develop ties to his daughter;

(d) he complained, under Article 6 § 1, that the courts lacked objective impartiality; for instance, the District Court stated that “the question concerns only the child’s right to meet with her father and not the father’s right too see his child”, and the higher courts did not correct that statement. The decisions were not properly reasoned, either.

3. Lastly, he complained, under Article 5 of Protocol No. 7, that his right to enjoy equality of rights between spouses in his relations with his child has been violated by the decisions in the custody and access cases.

THE LAW

A. Article 8 of the Convention

The applicant alleged a breach of his right to respect for family life. Article 8 reads:

“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.”

The parties’ submissions

The Government contested the allegation, considering the complaint manifestly ill-founded. They acknowledged that there was family life between the applicant and his daughter and that the impugned measures constituted an interference with the right to respect for family life. However, they were in accordance with the law and pursued the legitimate aims of protecting the health or morals and the rights and freedoms of the child. There was no indication that the law had been applied for any other purpose than to provide the child with safe and stable living conditions and to ensure a secure environment for her development. As regards the necessity test, the Government submitted the following.

As to custody, the Government argued that the measure had a basis in national law, according to which the Finnish courts had jurisdiction given the fact that the child had been living in Finland since 1994. The courts received the social welfare authorities’ opinions and written and oral evidence and they gave relevant reasons for their decisions. The applicant with counsel was present during the hearings. Thus, also the procedural requirements of Article 8 were complied with.

As to access, the Government argued that the measure had a basis in national law, according to which in case of dispute it was for the court to define the extent and the manner for the visits having regard to the best interests of the child. In the present case, the courts had received the Social Welfare Board’s written opinion and evidence submitted by the parties. The courts had given relevant reasons. At the time of the proceedings, the girl had already been living with her mother in Finland for over five years. She had taken the view that she would like to see her father on her own when she grew older. If the parents agreed, nothing prevented the applicant and his daughter from meeting more often, as the visiting rights ordered by the courts were only a minimum.

The Government also submitted that the applicant had only met his daughter three times for 2-3 hours at a time in accordance with the impugned decisions, namely in July, August and November 2000. Five organised visits had been unsuccessful as none of the parents had appeared. Nor had they informed the social welfare authorities of any cancellation. On 3 November 2000 the parents had agreed that there would be no more scheduled visits until further notice. The applicant visited his daughter four times in 2001 in her home for 1-4 hours at a time. Although the visits as ordered by the courts could be considered somewhat unsuitable, the length and the frequency of the visits were still at the courts’ discretion, bearing in mind the best interests of the child. If the circumstances change, the applicant could request that the court reconsider the access arrangements. As to the fact that the girl had not been heard before the courts, the Government pointed out that children were in principle not heard in court. They considered that the decision-making process provided the applicant with the requisite protection of his interests.

As to the custody proceedings, the applicant maintained that the Finnish courts had lacked jurisdiction. In any event, they should have applied Estonian law to the agreement of 3 February 1995 and consequently enforced the agreement and awarded the parents joint custody. Although the applicant had signed some documents regarding his daughter’s stay in Finland , he had never had any intention to waive his rights as custodian or to live with his daughter in Tallinn . The documents that he had signed had been in Finnish, which he did not understand well. The mother had told him that the documents needed to be signed to enable her to reside in Finland and to receive social benefits there.

The applicant contested that the impugned decisions had served a legitimate aim. He took the view that the aim had been to discriminate against him as a resident of Estonia , which is a country with a lower living standard, compared to the mother, who benefited from the Finnish social security.

Further, the applicant contested the Government’s view that the measures had been necessary in a democratic society. He considered that he had not been afforded due process by the Social Welfare Board and the courts. The Social Welfare Board had not contacted him of its own motion and it had received information from him only after several discussions. The Finnish authorities and courts had been reluctant to examine the real nature of the relationship between the applicant and his daughter.

As to the access proceedings, the applicant questioned whether there had been a legitimate aim.

The applicant submitted that the proceedings and their outcome had been one-sided. The Social Welfare Board and the courts had based their view on the fact that the parents were in dispute about their daughter’s custody. Not only did the Finnish authorities and the courts lack a proactive approach but they had closed their eyes to the applicant’s attempts to re-establish a normal relationship with his daughter.

Lastly, the applicant submitted that he had regularly visited his daughter since 2000. In mutual agreement with the mother the meetings as granted by the courts had soon been replaced by meetings and joint activities at the daughter’s home and in other places in Finland .

The Court’s assessment

1. Insofar as the custody proceedings are concerned, the parties agree that there was family life between the applicant and his daughter and that the decision refusing the applicant custody of his child amounted to an interference with his right to respect for his family life, as guaranteed by Article 8 § 1. The Court sees no reason to differ. Any such interference will constitute a violation of this provision unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under Article 8 § 1 and can be regarded as “necessary in a democratic society”.

The Court observes that t he decision in issue had a basis in national law and it was aimed at protecting the best interests of the child, which is a legitimate aim within the meaning of Article 8 § 2 .

In determining whether the refusal of custody was “necessary in a democratic society”, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of Article 8 § 2. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. 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 regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin v. Germany [GC], no. 30943/96, § 64 , ECHR 2003 ‑ VIII ).

The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. The Court has recognized that the authorities enjoy a wide margin of appreciation when deciding custody matters. They should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents (see Sahin , cited above, §§ 65-66).

In the present case, the Finnish courts adduced relevant and sufficient reasons to justify their decisions refusing custody. They found that as the parents were unable to agree on matters relating to custody, it should be awarded to the mother alone. The lower court reached its decision having had regard to all the circumstances and evidence submitted to it and having assessed the case also in the light of the written opinions of the relevant social welfare authorities. The appeal court, finding that the daughter’s living conditions with her mother were balanced and solid, saw no reason to hold otherwise.

As to the procedural requirements implicit in Article 8, the Court finds no indication that the d ecision -making process did not provide the applicant with the requisite protection of his interests.

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. Insofar as the access proceedings are concerned, the Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes theref ore that these complaint s are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

B. Article 8 in conjunction with Article 14 of the Convention

The applicant alleged discrimination in relation to the alleged breach of the right to respect for family life.

Article 14 reads:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The parties’ submissions

The Government contested the allegation, considering the complaint manifestly ill-founded for the following reasons.

As to the custody proceedings, the Government argued that the applicant had not particularised his complaint insofar as he alleged that he had not been allowed to present evidence. In fact, most of the evidence in the hearing had been submitted by him. As to the allegation that the decisions had been based on one-sided evidence, the Government submitted that the mere fact that the outcome of the case had not been in conformity with the applicant’s wishes did not suggest that the courts had not considered the case from all aspects.

As to the access proceedings, the Government submitted that the allegedly discriminatory opinion of the Social Welfare Board had been examined by the courts. The courts had taken note of all the circumstances and all the evidence before issuing its decision.

The applicant submitted that although he had been able to present his arguments before the courts, they clearly placed substantial weight on the arguments of his ex-partner, whereas they did not explain why they disagreed with the arguments put forward by him.

The Court’s assessment

1. As to the custody proceedings, the Court finds that the examination of the application does not disclose any indication of a violation.

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. As to the access proceedings, the Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

C. Article 6 § 1 of the Convention

The applicant complained, under Article 6, that he had been denied fair proceedings by impartial tribunals.

Article 6 § 1 reads in relevant part:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

1. Insofar as the custody proceedings are concerned, the Court reiterates that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by the domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see Schenk v. Switzerland , judgment of 12 July 1988 , Series A no. 140, p. 25 , § 45 .

As to the complaint about the evaluation of the evidence, the Court reiterates that, as a rule, it is for the national courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see Asch v. Austria , judgment of 26 April 1991 , Series A no. 203, p. 10 , § 26).

As to the reasoning provided by the domestic courts, the Court reiterates that whilst Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Nor is the Court called upon to examine whether arguments are adequately met (see Van de Hurk v. the Netherlands , judgment of 19 April 1994 , Series A no. 288, p. 19-20 , § 59-61).

The Court finds that the examination of the application does not disclose any indication of a violation.

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

2. Insofar as the access proceedings are concerned, the Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

D. Article 5 of Protocol No. 7 to the Convention

The applicant alleged a breach of Article 5 of Protocol No. 7 to the Convention which reads:

“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”

The Co urt 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 Proto col No. 7 . This provision is therefore not applicable in the instant case (see Kaijalainen v. Finland , no. 24671/94 , Commission decision of 12 April 1996 , unreported ) .

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaints under Articles 6, 8 and 14 of the Convention concerning [A1] the access proceedings ;

Declares inadmissible the remainder of the application.

Michael O ’ Boyle Nicolas Bratza Registrar President

[A1] Summarise the complaints succinctly without necessarily citing the invoked Convention Articles.