FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27751/95 by K.A. against Finland

The European Court of Human Rights (Fourth Section) , sitting on 25 January 2001 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , Mr M. Pellonpää , Mrs S. Botoucharova , judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 6 March 1995 and registered on 29 June 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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Finnish national, born in 1951 and living in Seinäjoki . He is represented before the Court by Ms Sirpa Niemistö , a lawyer practising in Seinäjoki . The respondent Government are represented by Mr Holger Rotkirch, Director-General for Legal Affairs, and Mr Arto Kosonen, Director, both 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 and his wife S. have three children, K., born in 1980, A., born in 1981, and J., born in 1986. S. suffers from mental problems and is on early retirement.

On 28 January 1992 the Social Welfare Office of Seinäjoki was contacted by a private individual raising a suspicion that the children were being sexually abused by their parents. The matter was considered by the child welfare support group of the 1992 the Social Welfare Board ( sosiaalilautakunta , socialnämnden ) on 5 February 1992. The group included Drs H.L. and U.K. of the Seinäjoki Central Hospital, the school welfare officer, a nurse of the child welfare clinic, the leading psychologist of the family advice centre and the director of J.’s   nursery. Since no proof of incest was found, no further action was taken.

From 24-29 February 1992 J.’s development was monitored in the children’s ward of the Seinäjoki Central Hospital. The examination revealed no signs of sexual abuse. On 16 March 1992 his nursery notified the social welfare authorities that he had shown a strong regression after having remained at home with his mother for one week following his hospital stay, and that similar regression had appeared whenever he had been spending longer periods at home.

Between 27 and 30 April 1992 the social welfare authorities were contacted on three further occasions with regard to the family. The information received again raised a suspicion that the mother was sexually abusing the children. It was alleged that the children were watching pornographic films and that the mother was walking around at home nearly naked and was using sexually explicit language when talking with and about the children. The parents were allegedly also consuming large quantities of beer on a daily basis.

The child welfare support group again considered the matter on 29 April and 25 May 1992. On 25 May 1992 social officials, the school welfare officer and the school nurse interviewed K. and A. together with their parents. According to the social welfare officer’s entry into the Board’s records, the daughters had confirmed the suspicions of sexual abuse, whereas the parents denied it. According to the applicant, the parents did not attend this interview. Moreover, A. had denied having been sexually abused by her parents, whereas K., when prompted to discuss her breasts, had stated that the mother had touched them in the sauna.

The parents consented to having the children undergo an examination in the child psychiatric department of the Central Hospital. The children were admitted to the Central Hospital on 25 May 1992 and their examination took place between 1 and 17 June 1992. Social welfare officials were in contact with the parents on 1 and 9 June 1992.

On 5 June 1992 the parents were interviewed at the child psychiatric department by Dr H.L. The interview was followed through a one-sided mirror by the two psychologists in charge of examining the children, a doctor and a nurse from the children’s ward, the children’s nurse at the children’s home,  a social worker and a nurse from the child psychiatric clinic as well as the social welfare official in charge of the case. The interview was not recorded. The parents were informed that clear evidence had been found of the sexual abuse of the girls, the parents’ heavy drinking and domestic violence also directed against the children. The parents denied the sexual abuse and did not, in the opinion of the working group, realise the gravity of the situation.

By emergency orders of 12 June 1992 the children were placed in public care in pursuance of section 18 of the Child Welfare Act ( lastensuojelulaki , barnskyddslag 683/1983) with a view to ensuring that the incest investigation could be completed. On 24 June 1992 the Social Welfare Board upheld the emergency orders after having heard the parents in person. It noted the discovery of incest directed against the children, in addition to the family's mental and financial problems. For a long time the parents had also been consuming alcohol on an everyday basis. The open-care assistance which the family had been receiving regularly was no longer deemed possible in view of the incest findings. The children were in need of long-term care outside their home. Taking the children into public care would enable them to grow up in a secure, stable and stimulating environment, where they could reach the stage of development typical for children of their age. Such care was to be provided first in the children’s home, where therapy could be provided. The possibilities of providing foster care would be explored at a later stage. The Board finally decided to reconsider the care orders under section 17 of the Child Welfare Act within thirty days from the date of the emergency care orders, in pursuance of section 18, subsection 2, of the said Act.

In an opinion of 25 June 1992 Dr H.L. drew the following conclusions:

(translation from Finnish)

“The investigations have shown that [K. and A.] have been sexually abused by their mother apparently during several years. The father has not been able to protect his daughters, even though aware of the abuse. The family conditions seriously endanger the psychological and physical development of all of the children (the serving of alcohol, violence). The children have to use an unreasonable part of their psychological energy on being concerned about themselves, their siblings, their parents and the family situation in general. This renders the children insecure, distressed, frightened and depressed. In my opinion the parents, even if supported by open-care assistance, are not able to secure the children’s situation sufficiently and cater to their physical and psychological needs. The burden caused by the family’s situation can already be seen in the disturbed psychological development of the children. In my opinion their physical and psychological development will be seriously endangered if they are returned to their biological parents. In this situation the biological parents … also need psychiatric help and support. To this end they have been recommended to continue making appointments at the Mental Health Office. The practical arrangements for providing psychotherapy to the children will be considered in the autumn. For now, priority must be given to taking child welfare measures.”

In letters of 22 and 23 June 1992 M. and E. informed the Social Welfare Board of their readiness to serve as lay helpers to the family, whom they had known for a long time. M., a foster parent herself, stated that the parents and, in particular, the applicant had been taking good care of the children. E., whose daughter had been looked after by S., stated that the family was leading a settled and normal life.

On 13 July 1992 the Social Welfare Board heard the parents, who were not assisted by counsel. They handed in written observations and denied the various allegations concerning abuse and neglect of the children. They also submitted a copy of J.’s patient records at the Seinäjoki Health Centre, arguing that they had regularly used its services in matters relating to the children’s health and that nothing in the records suggested that J. had been subjected to physical violence. The parents requested that the Board hear their daughter’s teachers, domestic helpers and others familiar with conditions in the family. They further requested that lay helpers or support families be appointed for the family. They objected to a categorical statement made by one social welfare official to the effect that they would not get their children back.

The Social Welfare Board also had before a report by the school nurse and school welfare officer dated 29 May 1992 in which they recounted their interview with A. and K. on 25 May 1992.

On the same day the Board maintained the public care on the grounds relied on in its decision of 24 June 1992. The parents appealed to the County Administrative Court ( lääninoikeus , länsrätten ) of Vaasa without the assistance of legal counsel. In a statement to the court M. also questioned the care orders. On 19 October 1992 the County Administrative Court, without having held an oral hearing, rejected the appeal and confirmed the public care orders with the following reasoning:

(translation from Finnish)

“According to the evidence transpiring from the documentation on file, the shortcomings in the children’s care and the other conditions in their home seriously jeopardise the children’s health and development. The open-care assistance has proved to be insufficient and care outside the home has been deemed to be in the children’s best interests. The Social Welfare Board has therefore been under an obligation to place [the children] in the care of [the Board].”

The parents appealed to the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ), requesting an oral hearing.

The care plan was reviewed at a meeting on 7 December 1992 attended by the parents. The parents and the children would continue to meet three times a week and psychotherapy was to be provided to the children starting the same month. The parents objected to foster care for the children and preferred to await the outcome of the appeal proceedings.

The care plan was again reviewed on 26 February 1993 at a meeting attended by the applicant. The children and the parents had continued to meet three times a week and the children had been on three weekend leaves to visit relatives. The possibility of placing the children in foster care was again raised but the applicant remained opposed to such care, preferring to await the outcome of the appeal. He was told that the Supreme Administrative Court would not necessarily reverse previous decisions and that the foster care needed to be planned at a sufficiently early stage. Moreover, on 17 February 1993 the children themselves had been consulted about their possible foster care.

On 16 March 1993 the Supreme Administrative Court rejected the parents’ appeal without holding an oral hearing and without adducing further reasons.

The care plan was again reviewed on 5 April 1993 in the presence of the parents. They were told a decision now had to be made as to whether the children should remain in the children’s home or be placed in a foster family. When consulted by a social welfare official the children had preferred to be placed in a foster family, “if they could not return home”. The applicant stated he would pursue his attempts to have them returned home. Meanwhile, they should stay in the children’s home. The applicant was told that even if the children were placed in a foster family, they would continue to see their biological parents, “although naturally not as frequently”. The meeting was adjourned at the applicant’s request until 13 April 1993. At that meeting the parents were informed that a foster family had already been found and that the children had repeated their willingness to move there, “since their return to their [original] home was not possible”. The parents were informed that the Social Welfare Board would receive a proposal for transferring the children into the foster family, since such care was in many respects a better alternative than care in an institution, considering that the public care was going to continue and given the children’s best interests.

At a further meeting on 31 May 1993 the parents were informed that between 1 July 1993, when the children would be transferred to the foster family, and October-November 1993 they would not be able to meet with the children. Subsequently, four meetings a year would be organised. According to the care plan of 1 June 1993, the temporary absence of meetings was aimed at ensuring a peaceful implementation of their transfer and adaptation to their new family, school and nursery. The care plan was to be reviewed at the end of 1994 or earlier, if necessary.

On 16 June 1993 the Social Welfare Board decided to transfer the children into foster care and adopted the updated care plan. It noted that the family conditions had been deemed seriously to endanger the children’s development and, as the matter concerned incest, their future health and development could only be secured by long-term foster care. Placing them in a foster family was thus in their best interests. The Board had regard to a written statement by the director of the children’s home and a joint statement by the leading social welfare official, the aforesaid director and the children’s individual nurses.

The applicant appealed, seeking to have the public care revoked or, in the alternative, to have meetings organised more frequently and to have the care plan reviewed at the latest in December 1993. On 12 October 1993 the County Administrative Court declined to examine the merits of the appeal, as it was not competent to examine, in the first instance, the request for termination of the care. The adoption of the care plan had not comprised any binding decision on the applicant’s right to see his children. Any access restriction had to be ordered separately by the Social Welfare Board pursuant to section 25 of the Child Welfare Act. The expected time-limit for reviewing the care plan had the character of a guideline, since under the law such a plan was to be reviewed whenever necessary. The County Administrative Court relied on sections 11, 20, 24 and 25 of the Child Welfare Act and on section 4 of the Child Welfare Decree. The applicant did not appeal further to the Supreme Administrative Court in respect of the decision to transfer the children into foster care.

On 1 November 1993 the applicant requested that the public care be terminated. On 19 January 1994 the Social Welfare Board refused the  request. It found that continued public care was in the best interests of the children, considering “the difficulties relating to the mental health and the use of alcohol as well as the incest directed against the children”, which had formed the background to their placement in public care. In a meeting with the leading social welfare official on 8 December 1993 and in their written statements of the same day K. and A. had stated their wish to remain in the foster family. J. had not been heard due to his young age. The Board also had regard to Dr H.L.’s opinion of 25 June 1992. Moreover, in a written statement of 30 December 1993 two teachers of J.’s nursery had attested to his gain of self-confidence. The foster parents noted that the children were adapting to the foster family. It was therefore in the children’s best interests to remain there.

In his appeal the applicant stated, inter alia , that he would move away from his wife and request sole custody of the children. In its opinion to the County Administrative Court the Social Welfare Board maintained its view that the biological parents’ living situation had not changed significantly. Terminating the public care would therefore not be in accordance with the children’s best interests.

On 6 June 1994 the County Administrative Court rejected the appeal with the following reasoning:

(translation from Finnish)

“According to the evidence transpiring from the documentation on file, the County Administrative Court considers that the need for public care outside the [children’s original] home still exists. The Social Welfare Board has therefore been under an obligation to maintain the public care of the children.”

On 30 November 1994 the Supreme Administrative Court rejected the applicant's further appeal without adducing further reasons.

According to the care plan adopted on 28 February 1997 the biological parents had not, at a meeting on 17 January 1997, expressed any wish to meet the children more frequently. On 10 April 1997 the leading social welfare official invited the parents to clarify their wishes in respect of meetings with the children. The parents, now represented by counsel, then requested that unsupervised meetings with their children be allowed in their home every weekend during one day. They stressed that the access restrictions should be based on the circumstances at that time and not on the events and allegations described in Dr H.L.’s opinion of 1992. K. and A. wished to have at least six meetings year, whereas J. and the foster parents objected to any increase.

On 6 May 1997 the Basic Welfare Board ( perusturvalautakunta, grundtrygghetsnämnden ) of Seinäjoki maintained the access restriction but allowed six supervised visits a year. The restriction was to remain in force until the respective children had turned 18, i.e. until 8 May 1998, 30 May 1999 and 14 August 2004. The Board recalled the incest as established in Dr H.L.’s opinion of 1992 and also had regard to the children’s own opinions.

The parents’ appeal was rejected by the County Administrative Court on 17 October 1997, except with regard to the access restriction applicable to J., which was ordered to remain in force only until 30 May 1999. The parents were refused cost-free proceedings, as domestic law did not provide for such an award in respect of access restrictions.

On 8 May 1998 K. reached the age of majority and her public care ceased pursuant to section 20 of the Child Welfare Act.

According to the care plan adopted on 14 January 1999, A. and J. and the biological parents would be allowed to meet three times up to the end of May 1999.

On 30 May 1999 A. reached the age of majority.

According to the care plan adopted on 7 May 1999, J. and the biological parents would be allowed to meet twice a month up to the end of 1999. As from the end of August 1999 the meetings would no longer be supervised.

According to the care plan adopted on 31 January 2000, J. and the biological parents would meet once a month. The plan had been preceded by several consulations with the biological and foster parents. The applicant had requested that meetings be allowed with the same frequency and that every other meeting take place over a weekend in the home of the biological parents, whereas J. had favoured one meeting a month involving no overnight stay.

On 28 February 2000 the biological parents again requested the Social Welfare Board to terminate J.’s public care. On 13 March 2000 S. informed a social welfare official that she was no longer in therapy. According to a case entry, she was told that J. now needed to undergo a child psychiatric examination.

As far as the Court is aware, no police investigation was conducted into the suspected sexual abuse of the applicant’s children.

B. Relevant domestic law

The relevant legislation is outlined in the Court’s judgment of 27 April 2000 in the case of L. v. Finland (no. 25651/94, 27.4.2000, §§ 53-97) . 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 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 shall 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 shall 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).

If a child is in imminent danger or otherwise in need of an immediate care order and foster care, the Social Welfare Board may take him or her into care without submitting the decision to the County Administrative Court for prior approval (section 18). An emergency care order shall expire within fourteen days of the decision, unless referred for reconsideration under section 17 of the Child Welfare Act. An ordinary care order pursuant to section 17 must be issued within thirty days, or on special grounds within sixty days, of the emergency order. Both ordinary and emergency care orders may be appealed to the administrative courts.

The child’s custodians, biological parents and de facto carers shall 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 shall 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 om förvaltningsförfarande 598/1982). Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties.

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 shall 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 1010/1983), the Social Welfare Board or the director of a children’s 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 children’s home. The restriction shall be limited in time. It shall 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 shall 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 shall 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 shall 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).

In accordance with Section 56 of the Social Welfare Act the social welfare authorities are entitled to obtain the necessary information from other authorities in the performance of their work, without prejudice to the obligation to respect confidentiality.

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 shall 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).

The municipality may appoint a support group to assist the Social Welfare Board in child welfare matters. The group shall consist of representatives of the social authorities, experts on children’s growth and development as well as other specialists (section 42).

COMPLAINTS

The applicant complains that his right to respect for his private and family life and home was violated on account of his children's placement in public care. The Social Welfare Board's investigation of the family conditions was arbitrary. No representative of the Board ever came to inspect the family conditions and the children were not properly heard. The incest suspicions against the parents were never corroborated by any evidence. The social authorities never tried to keep the family together by providing sufficient assistance or by allowing it to accept the help offered to them by other families. The parents’ intelligence level was not a sufficient reason for placing their children in public care. By placing the applicant’s children in the children’s home the social authorities may have wanted to avoid dismissing staff in the children's home which at the time was “lacking” three children. When the children were placed in a foster home access was first prohibited and later excessively restricted. Even though the biological parents’ conditions improved considerably, the authorities never genuinely considered the possibility of reuniting the family. The applicant invokes Article 8 of the Convention.

THE LAW

The applicant complains that his right to respect for his private and family life and home was violated on account of his children's placement in public care, the decision-making procedure and the implementation of the care. He invokes Article 8 of the Convention which reads, as far as relevant, as follows:

“1. Everyone has the right to respect for his private and family life, home …

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 submit that the application is out of time in so far as it pertains to the initial care orders. The applicant further failed to exhaust remedies in respect of the decision to transfer the children into foster care, as he did not appeal against the County Administrative Court’s decision of 12 October 1993. Neither did he lodge a specific request with the Social Welfare Board with a view to obtaining access to the children. The application is at any rate manifestly ill-founded. The interference with the applicant’s right to respect for his family life was based on various provisions of the Child Welfare Act and the related Decree which are intended to protect the best interests of children. The placement of the applicant’s children in public care was proportionate to that aim and thus necessary in a democratic society as required by Article 8 § 2. The public care orders were grounded and upheld on the basis of a large number of reports by social authorities and doctors, all concluding that the children had to be taken into care. The Government refute the allegations that the care orders were triggered by the applicant’s and his wife’s intelligence level or the purported need to find new children for the children’s home. The refusal to terminate their public care was based on equally relevant and sufficient reasons.

When issuing a decision relating to child welfare the social authorities are obliged to use an official form on which they must indicate the facts which seriously endanger the child’s health and development. The decision must further include an account of the open-care measures so far taken and explain why such assistance is no longer appropriate, adequate or possible. Finally, the decision must explain how the public care will contribute to the best interests of he child in the future. In practice, a public care order does not usually include all negative details about the biological family. By relying, as in the applicant’s case, mainly on the most relevant grounds and by providing other details as necessary in order to convince the decision-making officials of the necessity of the measure, the social authority sought to ensure a working relationship between the children, the biological parents and the foster parents which would be based on their and the authorities’ mutual trust.

The children’s need for long-term public care was recognised early on. They needed therapy which could be provided in the children’s home, whereas the child psychiatric clinic and the Mental Health Office were to deal with the family as a whole. After the children had lived in the children’s home with temporary carers for one year it was crucial for their development that they be provided with secure and emotionally stable conditions. Once they were transferred into foster care, the number of meetings with the biological parents naturally had to be reduced, in part so as not to interfere excessively with the children’s bonding with the foster parents. In December 1993 the daughters, then 13 and 12 years old, considered four supervised meetings per year an appropriate number. Meetings continued  to be allowed in accordance with the care plan, even if during one meeting the parents blamed K. for the public care and told J. that he would soon come home. Correspondence and telephone contacts were not restricted. The children were all placed in the same foster home not far from the home of the biological parents. In sum, the access restriction has also been justified under Article 8 § 2.

According to the Government, t he applicant was sufficiently involved in the decision-making process. On 25 May 1992 social officials, the school welfare officer and the school nurse interviewed the parents and the children together. In meetings with the parents on 1 and 9 June 1992 officials of the Social Welfare Board raised the possibility of placing the children in public care, to which the parents objected. They were further heard by the Social Welfare Board before its decisions of 24 June and 13 July 1992 and had  been provided with the complete material on which the Board based its decisions. As the family conditions had been monitored for five years the authorities were well aware of the views and interests of the parents. The biological parents were likewise heard prior to the Board’s decision of 19 January 1994 and were able to participate in the elaboration of the care plan. The applicant was able to exercise all remedies open to him.

The applicant maintains that his application concerns an ongoing situation and the six months’ rule does not therefore apply. In any case he complained within six months from the final decision of 30 November 1994 refusing his request for a termination of the public care. He further contends that he has exhausted the relevant domestic remedies.

In the view of the applicant the concrete circumstances warranting the public care were never spelled out. The expectation that the children’s well-being would improve if they were placed in public care was not a sufficient ground for the purposes of Article 8 § 2, nor can it be sufficient to defend the care orders by referring to “the general picture” of the applicant’s family. The care was ordered and upheld solely by reproducing the wording of certain provisions of the Child Welfare Act. The applicant’s submissions, including his request to have witnesses heard and his request for psychological open-care assistance, were not discussed in the Social Welfare Board’s or the County Administrative Court’s decisions. The court decisions contained no assessment whatsoever of the evidence adduced.

The applicant furthermore submits that prior to the public care proceedings no deficiencies had been identified in the care and upbringing of the children. Even if the social authorities had been in prior contact with the family, such contacts had concerned subsistence allowance. Due to the mother’s mental illness, her capacity for verbal communication is limited and her behaviour may appear child-like. In Finnish families parents and children often take sauna baths together. The biological parents consistently denied the allegations of sexual  abuse and violence in the family as well as the alleged drinking sprees with outsiders. When the public care proceedings begun the parents stopped consuming alcohol.

It is the applicant’s opinion that the care orders were essentially based on the hasty conclusions drawn by Dr H.L., who had examined the children during a few days only and who had interviewed the biological parents only once. No other medical opinion was sought, even from the Health Centre which had been treating the children. The children’s mental distress, as noted by H.L, was a result of their unexpected removal from their home and their separation from their parents. In his opinion of 25 June 1992 H.L. further failed to weigh his findings against the opinion of the director of J.’s nursery, according to whom the applicant appeared to be the centre of J.’s life. The interview with the biological parents on 5 June 1992 was carried out in a humiliating manner affecting their behaviour during the interview.

In addition, H.L. could not be considered an objective expert, as he had participated in the child welfare support group which had begun preparing the care orders even before the child psychiatric examination had commenced. Even before it had been completed the biological parents were told that their children would be taken into public care. When K. was heard on 4 July 1992 the possibility of her returning home was not presented as an option. In its final care orders of 13 July 1992 the Social Welfare Board stated, without convincing reasons, that the children would be in need of long-term public care. The Board found that therapy “could” be provided in the children’s home but failed to explain why it would have been impossible to provide such therapy if the children had returned home. Moreover, even if they were considered to be in urgent need of therapy, which necessitated their placement in the children’s home and the contact restrictions, their therapy began only in December 1992.

The authorities also failed to take the applicant’s interests and views into account when elaborating and adjusting the care plans. The manner in which the care was implemented was in disproportion to the aim sought to be achieved. Even though the parents were co-operating with the social authorities and were at no stage endangering the children’s development, the permitted meetings remained supervised and rare. This effectively prevented close and affectionate contact and estranged the children from their biological parents. Even their telephone calls were made conditional upon the children’s undisturbed adaptation to the foster family. The children’s emotional outbursts following meetings were consistently interpreted as militating against increased contact. The biological parents were repeatedly told that any increase in the number of meetings would hamper the children’s adaptation to their foster parents. The children’s own opinions were never established in an objective manner. The social welfare officials further failed to monitor the changes in the biological parents’ circumstances with a view to assessing whether any improvements might warrant a termination of the public care. When refusing to terminate the care in January 1994 the Social Welfare Board still based itself on the material which had been at its disposal eighteen months earlier, when the care orders had been issued. Moreover, A.’s and K.’s therapy ended already in October 1993 and February 1994, respectively. Even though the social authorities had only been suspecting the mother of incest, they never seriously considered the option of terminating the public care following the applicant’s proposed divorce.

Finally, the applicant considers that for the purpose of his proper participation in the decision-making process, he should have been advised to seek legal assistance.

In its further observations the Government seek to justify the public care in part by relying on notes which the biological parents’ psychiatrist at the Mental Health Office drew up from sessions with them between June 1992 and February 1996. The Government also cite passages from another psychiatrist’s sessions with A. in 1993 as well as from notes drawn up from a meeting in 1997 between a nurse of the children’s home and the children.

The Government furthermore argue that at the time when the applicant sought to have the public care terminated it would have been necessary for the social authorities to be able to co-operate with authorities such as the Mental Health Office. As the authorities did not wish to endanger the support and therapy provided to the biological parents, the Social Welfare Board did not obtain a report from the Mental Health Office against their will. If the applicant was of the view that the therapy records would support his request for termination of the public care, he could himself have forwarded them to the Social Welfare Board.

The Government finally submit that at the outset of the proceedings the applicant was advised to contact the municipal Legal Aid Office. He did not do so, as he lacked trust in it.

Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. The Government have argued that the application has been lodged belatedly, in so far as it focuses on the initial care orders of 12 and 24 June 1992. The Court notes, however, that in the orders of the last-mentioned date the Social Welfare Board referred the public care for reconsideration under section 17 of the Child Welfare Act, while at the same time maintaining it up to such reconsideration. The public care ordered on 12 June 1992 has thus been of a continuing character and the six months’ rule in Article 35 § 1 of the Convention does not come into play. It follows that the Government’s preliminary objection in this respect must be rejected.

It is true that the applicant failed to appeal to the Supreme Administrative Court against the County Administrative Court’s decision of 19 October 1994 concerning his children’s transfer to a foster family. The Court does not, however, discern any specific complaint concerning exclusively this facet of the implementation of the public care. A finding of non-exhaustion on this point only would not prevent the Court from examining the applicant’s grievance that A.’s and K.’s public care in itself, and the related access restrictions, were not justified under Article 8 § 2 of the Convention, and that the public care of J. and the related access restrictions continue to lack such justification. Neither would the Court be prevented from examining whether the applicant has been sufficiently involved in the decision-making in respect of the decisions to order, and to refuse to terminate, the public care as well as the decisions imposing access restrictions. It follows that this preliminary objection by the Government need not be examined further.

Further, the Court notes that in 1997 the biological parents requested the social authority to issue a formal decision in response to their request for more frequent meetings with their children. They appealed against this decision to County Administrative Court in the final instance. The Government’s preliminary objection must therefore also be rejected in this respect.

The Court considers, in the light of the parties’ submissions, that the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It follows that the application should be declared admissible.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President