FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28339/95 by S . T . on her own and on her son ’ s behalf against Finland

The European Court of Human Rights (Fourth Section), sitting on 19 March 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs E. Palm , Mr J. Makarczyk , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 3 July 1995 and registered on 28 August 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

Having regar d to the Court ’ s decision of 10 February 2000 to dispense with an oral hearing,

Having deliberated, decides as follows:

THE FACTS

The applicants are a mother (the first applicant) and her son (the second applicant). They are both Finnish nationals, born in 1947 and 1984 respectively. They are represented before the Court by Ms A. Suomela of the League for the Protection of the Family ( Perheen Suojelun Keskusliitto ) .

A. The circumstances of the case

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

G. is the child of Ms S. T . ’ s marriage to a citizen of Gambia. The marriage ended in 1985. She had sole custody of G. In 1988 the applicants moved from Sweden to Finland. G. apparently started to gain more weight than was average for a child of his age. In 1989 the applicant mother took him to the Aurora Hospital in Helsinki for examinations. It appears that a psychologist there reported G. ’ s overweight condition to the social authorities, which appointed a support person for the family.

On 19 August 1991 Ms S. T . brought G. in for further examinations at the Aurora Hospital. G. was voluntarily placed in the department for child psychiatry (although it is alleged that this was contrary to Ms S. T . ’ s wishes). G. reacted strongly to his placement. Ms S. T . allegedly found out at a later stage that the staff was severely punishing children at the hospital. In 1992 she repeatedly requested that G. be discharged, but the staff underlined the importance of his continued hospital care. After the hospital treatment had lasted for a year and a half, the applicant mother demanded that G. be returned home in April 1993.

On 29 March and 7 April 1993 Ms S. T . was informed of a proposal to place G. in public care. According to a written notice, this proposal was to be considered by the local Social Welfare and Health Board ( sosiaali - ja terveyslautakunta , social- och hälsovårdsnämnden ; hereinafter “the Board” ) on 29 April 1993.

On 29 April 1993 the Board placed G. in public care, finding that the applicant mother lacked the resources to set the necessary boundaries for G. and that the applicants had “too close a relationship”. The Board estimated that G. ’ s public care was likely to last a long time. G. was to be placed in the special children ’ s home . Ms S. T . appealed to the County Administrative Court ( lääninoikeus , länsrätten ) , complaining that the written notice had referred to the wrong year (1994 and not 1993). She did not appeal against the public care decision as such.

In May 1993 Ms S. T . allegedly discovered that G. had been severely punished by hospital staff as bruises were found on his body. It was G. ’ s firm wish to go home. The applicant mother ’ s wish that G. be discharged immediately was refused.

On 7 June 1993 G. was placed in the special unit of the children ’ s home . On 8 June 1993 the police decided, in the absence of sufficient evidence, to discontinue the investigation initiated as a result of a report made by the applicant mother about the suspected assault on G. at the Aurora Hospital.

On 29 June 1993 the director of the Social Services approved the proposal to modify the substitute care as from 7 June 1993 (G. was transferred from the Aurora Hospital to the children ’ s home) . The applicant mother appealed against this decision, firstly to the Board and then to the County Administrative Court. She did not appeal to the County Administrative Court against t he Board ’ s later decision of 19 August 1993 upholding the director ’ s decision.

On 15 July 1993 the County Administrative Court, without holding an oral hearing, rejected the applicant mother ’ s appeal against the decision of 29 April 1993 to place G. in public care. The court found that Ms S. T . and her representative had both been informed orally before the Board ’ s meeting that the written notice had been incorrect and that the Board would consider the matter on 29 April 1993. The court upheld the Board ’ s decision, stating, inter alia, the following:

“The shortcomings in the care of G., especially taking into account his illness, are seriously threatening his health and further development. The mother is not able to take care of his upbringing at the present time. The open care measures have proved to be insufficient. The public care is found to be in the interest of the child. The Board has, thus, been obliged to take G. into public care and to organise his substitute care.”

The applicant appealed to the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ).

Ms S. T . ’ s sister and brother-in-law then informed the social workers in charge of the case that they could care for G. in their home so as to avoid his placement in a children ’ s home. They were well-off and had a big house with a separate flat which could be used by the applicants. The request was apparently rejected. In proceedings instituted before the District Court ( käräjäoikeus , tingsrätt ) , Ms S.T ’ s sister, L.L., and brother-in-law, R.L., requested shared custody of G. together with Ms S. T .

On 19 August 1993 the Board decided to uphold the decision concerning the change of substitute care made by the director on 29 June 1993. As noted earlier, the applicant mother did not appeal to the County Administrative Court against the decision of 19 August 1993.

According to a social worker ’ s notes from a meeting which she and apparently other social workers had with Ms S. T . on 24 August 1993, Ms S. T . had requested to be allowed to visit G. every day at the children ’ s home. It had nevertheless been agreed at the meeting that G. would visit his mother at home every second weekend and that the applicant mother would visit him at the children ’ s home for three hours on three different weekdays and telephone him daily at a certain hour.

The first applicant later alleged that no such agreement had been reached. In a letter of 29 September 1993 she pointed out that the care order had not restricted her access to G. and that she intended to visit him every day.

On 7 October 1993 the Board restricted Ms S. T . ’ s access to G. until 6 November 1993. She was allowed to receive G. in her home every second weekend, visit him for three hours on three different weekdays and telephone him daily at a certain hour.

On 28 October 1993 the Board prolonged the restriction until 30 April 1994, after having heard the applicant and her legal counsel at its meeting. According to the Board ’ s decision, G. had a serious overweight condition and eating disorder. It appeared that his mother could not set any boundaries for him as G. had managed to gain three kilos during a one-night visit to his mother ’ s home. The applicant appealed against the prolonged restriction, requesting an oral hearing. On 10 February 1994 the County Administrative Court rejected the appeal without holding an oral hearing. There is no right of appeal from a County Administrative Court ’ s decision concerning the restriction of access rights.

On 4 November 1993 the County Administrative Court did not consider the merits of the applicant mother ’ s appeal concerning the changes made to the substitute care as no appeal is allowed against such decisions.

On 11 February 1994 the director of the Social Services prohibited on a short-term emergency basis the right of access of the applicant mother to G., including telephone contact, until 24 February 1994 as the mother-son relationship was found to be too symbiotic and dependant. Moreover, G. had started to become very aggressive and stressed in anticipation of the visits and phone calls. He had thrown tantrums and acted in a threatening way towards other children and adults. According to the decision, G. had been hospitalised on 9 February 1994 because of his disorderly behaviour. It was considered that G. had to be “removed from his mother ’ s sphere of influence” and be given “the peace required by his treatment”. G. had to integrate into the children ’ s home.

A further access prohibition was issued on 24 November 1994 and lasted until 6 December 1994 as G. had again acted so aggressively at the children ’ s home that a psychiatrist had to be called to visit him. The decision was taken by the director of the Social Services. This was a short-term emergency decision which also prohibited the access of L.L. and R.L. to the child.

On 1 June 1994 the District Court granted the request for the shared custody of G. after having heard, inter alia, the Board. The Board had expressed a negative opinion on the request.

On 13 October 1994 Ms S. T . requested the Board to revoke G. ’ s public care. She submitted, inter alia, that G. had not received proper care in the children ’ s home and that she would move to the house of her sister and brother-in-law in order to provide him with optimal care.

During negotiations with the social workers in charge of the case Ms S. T . requested that she be allowed to take G. with her to the Consultation Centre of the Mannerheim Child Welfare League in order to obtain support and therapy. This was allegedly refused. Allegedly, the social authorities also prevented Ms S. T . from taking G. to be examined by a private therapist specialising in the upbringing of children.

On 9 February 1995 the Supreme Administrative Court rejected Ms S. T . ’ s appeal against the confirmation of the care order. It had obtained written submissions from the Board and a written opinion from the Ministry for Social Welfare and Health Matters. This opinion relied on a written opinion submitted by Dr T., a child and youth psychiatrist of the State Centre for Research and Development in the Social Welfare and Health Field ( sosiaali - ja terveysalan tutkimus - ja kehittämiskeskus ) . Ms S. T . submitted a rejoinder, pointing out, inter alia, that Dr T. ’ s opinion had been exclusively based on the documents at her disposal and on her own speculations.

In February 1995 G. was moved from the children ’ s home to the home of his joint custodians, L.L. and R.L., and Ms S. T . , but his public care was maintained. Ms S. T . withdrew her request that G. ’ s public care be revoked.

On 22 June 1995 the head social welfare officer of the Social Services approved the changes to the substitute care as from 1 June 1995 according to the care plan.

On 12 December 1995 the director of the Social Services decided to terminate G. ’ s public care.

B. Relevant domestic law

The relevant legislation is outlined in the Court ’ s judgment of 12 July 2001 in the case of K. and T. v. Finland (no. 25702/94, §§ 94-136, to be published in the Court ’ s official reports). Those provisions of particular relevance to the present case are described below.

When the need for child welfare is caused primarily by inadequate income, deficient living conditions or lack of housing, or when these factors constitute a serious obstacle to the rehabilitation of a child and family, local authorities must provide adequate financial support without delay, and improve the family ’ s housing conditions. Open-care assistance includes both general support measures in accordance with the Social Welfare Act ( sosiaalihuoltolaki , socialvårdslag en , Act no. 710 /1982) and specific assistance, inter alia by appointing a lay helper or a support family, by providing adequate therapy and by assisting the child in his or her personal needs through financial and other support. The assistance must be provided in co-operation with the child and its parents or other carers (section 13 of the Child Welfare Act).

According to section 16 of the Child Welfare Act, 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 abuse of intoxicants, 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) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2). The public care ceases when the child turns 18 (the age of majority) or marries (section 20). Care orders may be appealed to the administrative courts.

The child ’ s custodians, biological parents and de facto carers must be heard in respect of a proposal to issue or revoke a public care order or to place a child outside his or her original home. They must further be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act ( hallintomenettelylaki , lag en om förvaltningsförfarande , Act no. 598 /1982). Under section 15 of the said Act , a party must be afforded an opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken.

A child who has attained the age of 15 is entitled to state his or her opinion in child welfare matters. A child who has attained the age of 12 is entitled to be heard as stipulated in section 15 of the Administrative Procedure Act; he or she is also entitled to demand the social services and other support measures (section 10, subsection 2, of the Child Welfare Act).

According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board must support and facilitate the child ’ s contacts with his or her parents and other close persons (subsection 2).

According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree ( lastensuojeluasetus , barnskyddsförordning en , Degree no. 1010 /1983), the Social Welfare Board or the director of a children ’ home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the residential home. The restriction must be limited in time. It must mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction.

Any decision concerning public care, the transfer of a child into foster or other care outside his or her home, access restrictions and isolation of the child must be drawn up on a form approved by the Ministry for Social Welfare and Health Affairs (section 14 of the Child Welfare Decree).

The care plan to be drawn up in respect of a child in public care must mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child ’ s care and upbringing and for the child ’ s parents; (c) how the child ’ s right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan must be elaborated in co-operation with those involved.

A County Administrative Court ’ s decision in respect of a public care order, the transfer of a child into foster care or the termination of public care may be appealed further to the Supreme Administrative Court. Other decisions of a county administrative court relating to child welfare measures cannot be so appealed (section 37 of the Child Welfare Act).

If, in the course of his or her activities, an employee or elected official in health care, social welfare, education, the police or a parish finds out that a child is in evident need of family-oriented or individual child welfare, he or she must notify the Social Welfare Board without delay. Any other person may also contact the Social Welfare Board to this end (section 40 of the Child Welfare Act).

COMPLAINTS

1. The applicants complain, under Article 8 of the Convention, that their right to respect for their family life was violated on account of G. ’ s placement in public care. The authorities did not take sufficient support measures before ordering such care. G. ’ s opinion was not obtained in an impartial manner. In the children ’ s home he did not receive adequate therapy, nor was he allowed physical exercise more than once a week. G. ’ s aggressive conduct in the children ’ s home was always considered to have resulted from the applicants ’ mutual relationship and not from the implementation of his public care. Everything was done to cut off the ties between the applicants. The access restriction and prohibition were unjustified. No public care plan was drawn up by the social authorities. Instead, their starting-point was that the public care must last until G. reached the age of majority. G. ’ s case was always handled by the same two social workers, who for reasons of prestige were unable to change their views on the need for the public care. For instance, after the District Court granted shared custody of G. to Ms S.T. and her sister and brother-in-law the Board procrastinated a further eight months before allowing the boy to live with them and a further ten months before revoking the care order.

2. The applicants also complain that they were denied a fair hearing both in regard to G. ’ s placement in public care and the access restriction and prohibition. Ms S. T . ’ s attempts to have G. discharged from his non-compulsory hospital care were struck down by the use of “administrative power” which she was unable to challenge. In addition, no oral hearing was ever held before the administrative courts, thus effectively preventing the applicants from challenging the social workers ’ views by having experts and witnesses examined. Nor did the courts of their own motion obtain sufficient written observations from the parties. As a result, the notes unilaterally taken by the social workers had a decisive impact on the authorities ’ decision-making. The applicants had no possibility of correcting misunderstandings and incorrect information appearing in those notes with the result that the notes obtained the status of “objective truth”.

THE LAW

1. The applicants complain, under Article 8 of the Convention, that G. ’ s placement in public care was unjustified and that the authorities did everything in their power to keep the applicants apart by restricting the first applicant ’ s visiting rights and, finally, by prohibiting visits for periods of time. The social authorities ’ starting point was that the public care must last until G. reached the age of majority. They also complain about the inadequate therapy which G. received at the children ’ s home.

Article 8 of the Convention 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.”

The Government

The Government note, firstly, that in several respects the applicants have not exhausted the domestic remedies available to them. The applicants should have requested that the decision of 29 June 1993 of the director of the Social Services concerning the transfer of substitute care from the Aurora Hospital to the childre n ’ s home , be reviewed by the Board. The applicant mother, who was legally represented and who received correct appeal instructions, appealed not to the Board but to the County Administrative Court against the director ’ s decision. However, the County Administrative Court could not examine the appeal as there is no right of appeal to the County Administrative Court against an official ’ s decision. The Government observe that it would have been possible for the applicants to appeal against the Board ’ s decision to the court.

As rega rds the Board ’ s decisions of 11 February and 24 November 1994 concerning the access restrictions, the Government point out that the applicants did not request the Board to review these decisions.

The Government further state that the applicants failed to exhaust domestic remedies in respect of the continuation of the public care as they never requested the public care to be terminated, even though they had the right at any time to request its revocation.

The Government note, secondly, that the County Administrative Court made its decision concerning the partial restriction of the applicants ’ access rights on 10 February 1994. As the application was lodged with the European Commission of Human Rights on 3 July 1995, this part of the application has been introduced too late.

Finally, the Government contend that the only part of the application which is not belated and in respect of which the applicants have exhausted domestic remedies concerns the decision of 29 April 1993 to take G. into public care and the related appeal proceedings. In this connection, the Government concede that G. ’ s placement in public care and the related measures amounted to an interference with the applicants ’ right to respect for their family life as guaranteed by Article 8 of the Convention. As regards G. ’ s earlier hospital care, there was no such interference. The Government note in the latter connection that in the period from August 1991 until 29 April 1993 the applicant mother placed her minor child in voluntary hospital care. In the period before the decision taking G. into public care on 29 April 1993 the applicant mother, as his custodian, was empowered to decide on matters concerning G. ’ s welfare. It was only after G. had been taken into public care that the Board was empowered to decide on the child ’ s care, upbringing, supervision, general welfare and residence. As to the interferences which occurred after the decision of 29 April 1993 had been taken, the Government maintain that these do not give rise to a violation of Article 8 as they were “in accordance with the law”, pursued legitimate aims under Article 8 § 2 of the Convention and were “necessary in a democratic society”.

The applicants

The applicants argue that they have exhausted the domestic remedies available to them in respect of the decision to take G. into public care. They appealed to the County Administrative Court and to the Supreme Administrative Court. In their appeal to the Supreme Administrative Court the applicants did not request an oral hearing, but they did request that the case be sent back to the County Administrative Court for an oral hearing. Both courts failed to arrange a hearing and the appeal was rejected. An appeal against the decision of 28 October 1993 concerning the long-term access restrictions was made to the County Administrative Court and an oral hearing was requested. This was not arranged; nor did the County Administrative Court revoke the access restrictions. It is not possible to appeal against the County Administrative Court ’ s decision to the Supreme Administrative Court. The applicants admit, however, that they did not appeal against the short-term access prohibitions since such appeals have little practical importance as the period of restriction would have expired before the case reached the County Administrative Court. In addition, the applicant mother has made numerous administrative complaints to the County Administrative Court, the Ministry of Justice, the Parliamentary Ombudsman and the President of Finland, without obtaining any change to her child ’ s situation.

According to the applicants, they did not make an application within the six-month period to the European Commission of Human Rights against the County Administrative Court ’ s decision concerning the restriction on access, as the applicant mother was convinced that the Supreme Administrative Court would make its decision without delay and would revoke the care order once L.L. and R.L. had been appointed joint custodians of G. in accordance with the District Court ’ s decision of 1 June 1994. The Supreme Administrative Court ’ s decision was, however, delayed by over a year and a half and did not result in the revocation of the care order. According to the applicants, the very fact that the Supreme Administrative Court ’ s decision did not require the reunification of the family emphasised the seriousness of the access restrictions; it was only at this stage that it became fully apparent to the applicants that the situation was in contravention of the Convention. Because of this exceptional reason, the applicants request that the Court also declare the complaints concerning the access restrictions admissible since these complaints form an essential part of the case as a whole.

The applicants emphasise that, even where a care order is originally justified, but such justification ceases to exist, it must be ended on the initiative of the authority, unless this would obviously be against the interests of the child. According to the applicants, the Convention requires the authorities to do all in their power to reunite the family.

The applicants admit that the applicant mother could apply for revocation of the care order at any time. They emphasise, however, the primary responsibility of the authorities to terminate the public care.

The Court

(a) Taking into care and alleged failure to terminate the care speedily

The Court observes that the applicants ’ complaint to the County Administrative Court against the decision of 29 April 1993 placing the second applicant in public care did not concern the merits of the case as the applicants only complained about the allegedly erroneous date of the Board ’ s meeting. The Government, however, did not raise this failure in their observations. In any event, the Court notes that the County Administrative Court also examined the merits of the case ex officio regardless of the applicant mother ’ s failure, finding that the public care measure was justified. The decision was later confirmed by the Supreme Administrative Court following the appeal submitted by the applicant mother. In these circumstances, this part of the application cannot be rejected for non-exhaustion of domestic remedies.

As to the merits of this complaint, it is undisputed that the care decision constituted an interference with the applicants ’ right to respect for their family life within the meaning of Article 8. The Court is satisfied that this interference was in accordance with the law and was aimed at protecting “health” and “the rights and freedoms” of the child.

In determining whether the measure was “necessary”, the Court recalls the principles developed in its case-law (see, amongst others, the above-mentioned K. and T. v. Finland judgment, §§ 154-155, 164-170, 173-174, 177-179 and 192-194). According to these principles, the national authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations or of a failure to promote the reunification of the family.

The Court accepts that in the exercise of their margin of appreciation the national authorities could regard the taking into care as a necessary measure for the protection of G. ’ s health and for the protection of his rights and freedoms, having regard to the fact that, following careful assessment, G. ’ s personal circumstances were considered to represent a serious threat to his health and future development (the shortcomings in G. ’ s care, the applicant mother ’ s inability to take charge of G. ’ s upbringing in a responsible manner, G. ’ s illness, the fact that G. was already physically separated from his mother as a result of his voluntary placement at the hospital and the mother ’ s threats to remove G. from the hospital care which was designed to ameliorate his condition). The Court is, thus, satisfied that the reasons relied on by the national authorities were both relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention.

As to the procedural guarantees inherent to Article 8, the Court must also have regard to the extent to which the first applicant was involved in the decision-making procedure (c.f. the K. and T. v. Finland judgment, § 173). In this connection, the evidence shows that the applicant mother was inform ed of the Board ’ s meeting of 29 April 1993 and was offered an opportunity to participate in it or submit her written remarks. In addition, she could, and did, appeal at two court levels. The decision-making process was, thus, such as to provide the applicants with the requisite protection of their interests.

The Court therefore concludes that the domestic authorities did not exceed their margin of appreciation in so far as the original taking into care is concerned.

As regards subsequent developments, the Court notes that in February 1995 G. was moved from the children ’ s home to the home of his joint custodians, L.L. and R.L., and that the care was terminated in December of the same year. In view of these developments, it cannot be maintained that there was such a lack of effort on the part of the authorities to consider seriously the termination of the public care as to constitute a violation of Article 8 (cf. K and T. v. Finland , §§ 177-179). In reaching this conclusion, the Court also takes into account the fact that during the period between April 1993 and February 1995 the first applicant failed to have proper recourse to all available remedies to protect her in terests (see point 1(b) below).

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must rejected in accordance with Article 35 § 4.

(b) Other restrictions (limitations on access and contact prohibitions)

The Court notes that the applicants failed to complain aga inst the Board ’ s decision of 19 August 1993 to the County Administrative Court in so far as the second applicant ’ s placement in the children ’ s home was concerned. Instead, they complained about the decision of 29 June 1993 of the director of the Social Services directly to the County Administrative Court. Taking into account the fact that the applicants were represented by counsel and that they had received appeal instructions, the Court cannot find any excuse for the applicants ’ error about the scope of the right of appeal. Thus, it finds that the applicants have not exhausted the domestic remedies available to them in this respect. Their complaint must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Insofar as the applicants have complained about the Board ’ s decision of 28 October 1993 concerning the access restriction, the Court recalls that the County Administrative Court ’ s final decision was given on 10 February 1994. As the applicants ’ application was introduced with the European Commission of Human Rights on 3 July 1995, which is more than six months after the date of the final decision, this part of the application has been submitted too late. Their complaint must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Finally, insofar as the applicants contest the two decisions of the director of the Social Services Office to prohibit any access between the applicants for a short period of time, the Court again finds that the applicants have failed to exhaust domestic remedies in this respect as they did not seek to challenge these decisions before the Board. This complaint must also be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

It follows that all of the complaints forming this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicants further complain, under Articles 6 and 13 of the Convention, that they were denied a fair hearing both as regards G. ’ s placement in public care and the imposition of the access restriction and prohibition on contact. Furthermore, the applicant mother could not challenge before the courts the administrative decisions of the hospital staff not to allow G. to be discharged from his non-compulsory hospital care. The applicants also s ubmit that they were not heard – either orally or in writing – before the administrative courts and that they were prevented from challenging the incorrect information and statements given by the social workers.

Article 6 § 1 of the Convention reads, insofar as relevant:

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

Article 13 of the Convention 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 Government

The Government find this part of the application, insofar as it is not inadmissible for the reasons given above, manifestly ill-founded as the applicant mother has been allowed an opportunity to participate from the very beginning in the decision-making process concerning the taking of G. into public care. As already explained in connection with the Article 8 complaint, she was informed of the Board ’ s meeting and was offered an opportunity to participate or to submit her written comments. She failed, however, to use this opportunity. She was also served with all decisions concerning the public care and related measures and given instructions on how to appeal. Accordingly, the applicant mother was able to exercise in due time all of the remedies available to her in regard to the decisions of the Board. Furthermore, she had the opportunity to respond both to the explanations given by the Board in all cases brought before and dealt with by the County Administrative Court as well as the statements before the Supreme Administrative Court.

The Government also note that the applicants have not exhausted the domestic remedies available to them. They recall that the applicants did not request an oral hearing before the County Administrative Court or the Supreme Administrative Court, and thereby unequivocally waived this possibility . As regards the decision of 10 February 1994 of the County Administrative Court, the applicants ’ requests for an oral hearing were rejected by the court as unnecessary for the consideration of the matter. In any event, the Government observe that Finland has made a reservation under Article 6 § 1 of the Convention to the right to an oral hearing, inter alia , before the County Administrative Court and the Supreme Administrative Court.

According to the Government, the administrative courts had at their disposal, inter alia , explanations obtained from the social welfare authorities and G. ’ s patient documents. The Supreme Administrative Court had all of the material gathered in the proceedings before the County Administrative Court. The Supreme Administrative Court also asked the Ministry of Social Affairs and Health to submit a statement on the matter. The Government note that the applicant mother had the opportunity to respond, and did respond, to the explanations or statements sent to or obtained by the relevant administrative courts. The Government emphasise that the applicants were represented throughout the proceedings. Their counsel submitted several rejoinders to the Supreme Administrative Court, commenting on what was submitted by the social welfare authorities as well as on the experts ’ statements obtained by the court. The same counsel also represented the applicants before the County Administrative Court in their appeal against the access restriction and submitted several statements to the court. There is thus no appearance of a violation of Article 6 of the Convention as regards the fairness of the proceedings considered as a whole.

As regards the applicants ’ complaint that the applicant mother could not challenge legally the administrative decisions of the hospital staff in relation to G. ’ s non-compulsory hospital treatment, the Government recall that in the period before the decision of 29 April 1993 taking G. into public care, the applicant mother, as G. ’ s custodian, was empowered to decide on matters concerning G. ’ s welfare. Accordingly, there was no interference under Article 8 § 1 of the Convention, and there is no case under Article 13 of the Convention either.

The applicants

As concerns the applicants ’ complaint that G. ’ s non-compulsory hospital treatment was continued against the applicant mother ’ s wishes, the applicants argue that she was constantly threatened with compulsory placement of the child in public care if she did not bring the child back from holidays. They had no effective remedies in this connection, as required by Article 13 of the Convention. They also submit that they were not directed to complain to the Parliamentary Ombudsman ( eduskunnan oikeusasiamies , riksdagens ombudsman) with the result that not even that legal remedy was available to the applicant mother. The applicants further submit that even if they had complained to the Parliamentary Ombudsman, this would not have had any positive influence on the implementation of the care order.

According to the applicants, the processing of the case before the Board did not meet the principles of a fair trial. The lawyer representing them before the County Administrative Court made a serious mistake by only complaining about the erroneous date on the documents. The County Administrative Court should at least have asked for additional explanations in the case or should have arranged an oral hearing in order to investigate the case from all sides. This, however, was not done. Later on, the applicants ’ representative asked the Supreme Administrative Court to remit the case to the County Administrative Court for an oral hearing, but the Supreme Administrative Court did not consider this to be justified; nor did the Supreme Administrative Court itself organise an oral hearing.

The applicants also submit that there is a material lack of legal protection associated with the short-term access restrictions as it is simply not worth appealing to the County Administrative Court about such restrictions. The proceedings take such a long time that any restriction will have come to an end long b efore any decision is obtained.

The Court

As to the alleged failure of the domestic courts to hold an oral hearing, the Court recalls that the instrument of ratification of the Convention deposited by the Finnish Government on 10 May 1990 contained a reservation in respect of Article 6 § 1, according to which Finland could not guarantee a right to an oral hearing before the courts mentioned in the reservation, including, among others, County Administrative Courts and the Supreme Administrative Court. The reservation was in force at the time of the proceedings before the administrative courts at issue in the present case. As there can be no doubt about the validity of the reservation (see the Helle v. Finland judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, § 44), it must be concluded that Finland was under no obligation to ensure that an oral hearing took place before the County Administrative Court and the Supreme Administrative Court.

As regards the applicants ’ other complaints under Articles 6 and 13 concerning the conduct of the court proceedings, the Court finds that there is no appearance of a violation of the provisions invoked. In this respect, the Court refers to its above findings concerning compliance with the procedural aspects of Article 8 (see point 1(a) above). Insofar as the applicants complain that they did not have an effective remedy, the Court recalls that the applicants could apply to the administrative courts against the care order and various access and contact restrictions. There is no indication that the Finnish administrative courts would not, as a general matter, fulfil the requirements of an “effective remedy” within the meaning of Article 13. The Court, thus, considers that the applicants had available remedies satisfying the requirements of that provision (c.f. the above-mentioned K. and T. v. Finland judgment, § 198).

Insofar as the applicants complain about the applicant mother ’ s inability to challenge the administrative decisions of the hospital staff at the time of the non-compulsory care, the Court finds nothing to suggest that the applicants ’ rights guaranteed by Articles 6 and 13 or any other provisions of the Convention have been violated. The Court recalls that the applicant mother was at the time the sole legal guardian of G. and could have chosen not to return G. to the hospital, if she had so wanted. The applicant mother co-operated ‑ even if somewhat reluctantly ‑ with the hospital staff and the issue was never raised before any competent authority. 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.

It follows that this part of the application must be rejected within the meaning of Article 35 § 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Michael O ’ Boyle Nicolas Bratza Registrar President