FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40521/98 by E. and S. against Finland

The European Court of Human Rights (Fourth Section) , sitting on 7 September 2000 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 23 February 1998 and registered on 31 March 1998,

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 deliberated, decides as follows:

THE FACTS

The applicants are Finnish national s , born in 1949 and 1965 respectively and living in Helsinki.

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

The applicants married in 1990 and lived in the municipality of I. until 1998. Their son J. was born in January 1991. The second applicant has another son (S.) from another relationship who lives with her and the first applicant. It appears that the first applicant has two further sons from a previous relationship.             

In March 1991 the local Social Welfare Board ( sosiaalilautakunta , socialnämnden ) placed J. in another family as a support measure necessitated, in particular,  by the second applicant’s hospitalisation due to her illness diagnosed as schizophrenia typus schizo-affectiva . She was hospitalised between June and November 1991 and had also  required such care earlier.

J.’s placement in a substitute family was later extended until the end of September 1991. On 16 September 1991 the Social Welfare Board placed him in public care in pursuance of Section 16 of the Child Welfare Act ( lastensuojelulaki , barnskyddslag 683/1983 as amended by Act 13/1990) . The applicants had consented to the measure and J. was now placed in another substitute family in a municipality not far from I. The Social Welfare Board noted that the mother remained in hospital. The father, who was studying elsewhere, had considered himself unable to assume J.’s care. J. had already been placed with another family for six months. As none of the parents were able to care for and raise J., his placement in public care served his best interest. The Social Welfare Board had regard to an opinion of Dr R.R., specialised in psychiatry, and Dr N.S.

The Social Welfare Board imposed no restriction on meetings or other forms of contact between J. and the parents. The placement with the substitute parents was to be in force until further notice. Once the parents’ conditions had changed the need for public care would be reconsidered.

In 1995 the applicants requested the Social Welfare Board to terminate J.’s public care and placement in a substitute home. Prior to the Board’s decision the substitute parents, J. himself, the maternal grandparents, and a former social welfare official who had been in charge of preparing and monitoring J’s public care were heard by social welfare officials. The Board also obtained opinions from the local Mental Health Care Office (of 27 September 1995) and a Family Advice Centre. The medical opinion was issued by a specialist in psychiatry who had been monitoring the second applicant in 1988-89 and as from June 1994. In addition, she had at her disposal the second applicant’s medical file going back to 1984.

According to the substitute parents, who were heard in November 1995, J. and the applicants had met only once every 6-8 weeks for some two hours during J.’s four-year long placement with the substitute parents. The second applicant had also been maintaining a certain contact by telephone calls. Not until the beginning of 1995 had the first applicant made any contact with J. during meetings. According to the former social welfare official, who was supervising the meetings until the end of 1993, the first applicant had often not been at home during the meetings in the applicants’ home. If at home, he had not spoken to J. or otherwise participated in the meetings.

The applicants were heard by social welfare officials on four occasions between May and December 1995. The first applicant stated that during meetings with J. he had deliberately remained in the background so as not to confuse him by the presence of two mothers and two fathers. The applicants having been afforded the opportunity to propose that other persons or institutions be heard prior to the decision, the second applicant proposed that her own parents be heard.

On 16 September 1996 the Social Welfare Board refused the applicants’ request for termination of the public care. It recalled, inter alia , that the mother had been hospitalised while she was expecting J. and the parents were experiencing a crisis in the marriage. The mother had tried to care for J. with the help of her parents and a municipal carer but had again been hospitalised about a month after having given birth to J. The father, who was studying far away, had then stated that he was not available to assume J.’s care. The applicants were now enrolled as students in Helsinki but continued to live in I. The mother was receiving early retirement pension. After lengthy reflection the applicants were now ready to assume J.’s care and recognised that his transfer into their family would have to be  implemented gradually.  According to the medical opinion the mother was suffering from a serious mental disturbance. Although her condition had been stable over the last years the illness could re-occur despite regular medication. The mother’s thoughts were influenced by unrealistic optimism and denial of difficulties. Although she could be expected to manage the care of S., J.’s transfer into that family was not the optimal alternative for his development. The Board had been informed by the then expert at the Mental Health Care Office that there was no such fresh information which would warrant a revised opinion on the mother’s state of health. The discussions with the applicants and the others heard had all led to the impression that in the applicants’ family the responsibility for J. would always and principally fall on the mother. The father had stated that should the mother not be able to assume that responsibility, he would only then assume it. The Social Welfare Board had therefore not become convinced that the responsibility for J.’s everyday care and upbringing would be shared between the parents, which J.’s entry into the family would definitely require. J. had lived with his substitute parents all his life and he was perceiving them as his parents both in practical and psychological terms. As the conditions in J.’s biological family had not changed decisively, the best solution from J.’s point of view was to maintain status quo as regards his care. As it was also in his interest to get to know his biological parents the contact to that end would be continued and, if possible, extended, regard being had to J.’s development and age.

The applicant’s requested the Social Welfare Board to reconsider its decision. They  submitted, inter alia , that the Board’s opinion of the first applicant as father was incorrect. He had a good and stable relationship with all of his four sons.

On 13 November 1996 the Social Welfare Board maintained its decision. The applicants appealed further to the competent County Administrative Court ( lääninoikeus , länsrätten ), maintaining that since the care order had been issued their conditions had changed so as to enable them to assume J.’s care. Their opinion had not been properly recorded or had been ignored by the Social Welfare Board.

On 17 February 1997 the County Administrative Court rejected the appeal after having obtained the Social Welfare Board’s written opinion and the applicants’ rejoinder.              The court reasoned, in extenso , as follows:

(translation from Finnish)

“According to the medical opinion in the file, [the second applicant] is suffering from a serious mental disturbance which may re-occur despite regular medication. Due to her limited mental strength she would need particularly significant support in raising two children on an everyday basis. According to the documentation, the responsibility for the care and upbringing of the children would, in the applicants’ family, fall principally on [the second applicant]. For these reasons and considering the other elements transpiring from the documents, the County Administrative Court finds that the need for [ J.’s ] public care and placement with substitute parents within the meaning of Section 16 of the Child Welfare Act continues to exist and that a termination of the public care would be manifestly contrary to the child’s best interest. The Social Welfare Board has therefore been under an obligation to maintain the public care.”

The applicants appealed further, emphasising that the second applicant had not needed

hospital care for over five and a half years, which fact had been ignored by the Social Welfare Board. The applicants submitted an opinion of 20 March 1997 issued by the doctor at the Mental Health Centre who had been monitoring the second applicant’s medical state since October 1995 and had acquainted himself with her medical file. Since the previous medical opinion had been issued in September 1995 the second applicant had been seeing staff at the Mental Health Centre once a month or once in two months. Although her mental state had remained stable, it could still not be excluded that her illness might deteriorate. The opinion concluded that the termination of J.’s public care would not be the best solution, considering the need to ensure his healthy development.

On 5 September 1997 t he Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) rejected the applicants’ appeal after hearing the Social Welfare Board in writing and obtaining the applicants’ rejoinder. The Supreme Administrative Court reasoned, in extenso , as follows:

(translation from Finnish)

“Having regard to the requests in this matter, the material received, the reasons stated in the County Administrative Court’s decision and the legal provisions applied, there is no reason to amend [that] decision.”

In September 1999 the applicants informed the Court that they and J. were corresponding once a month. J. had spent one and a half week with them in Helsinki in the summer of 1999. He was experiencing certain problems in the substitute home. S. was living with a grandparent in the municipality of I. but the applicants intended to have him start school in Helsinki in the autumn of 2000. The applicants were continuing their studies.

COMPLAINT

The applicants complain under Article 8 of the Convention that the authorities, by failing to revoke J.’s public care, are denying them their right to raise their own child. They submit that a mentally disabled parent should have the same right as other disabled parents to raise his or her child. Moreover, the second applicant’s state of health has now improved and as the applicants have successfully been raising S. the failure to return J. into their care is not justified.

THE LAW

The applicants complain about the authorities’failure to revoke J.’s public care. They invoke Article 8 of the Convention which reads, in so far as relevant, as follows:

“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 Court recalls that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see, amongst others, the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 55, § 86). Such interference constitutes a violation of this Article unless it is "in accordance with the law", pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as "necessary in a democratic society".

In the present case the placement of the applicants’ child J. in public care and the refusal to terminate the care no doubt interfered with their right to respect for their family life. The Court finds no indication, however, that these forms of interference were not based on the Child Welfare Act or did not aim at protecting the health and rights of J. himself. Neither can the Court find that the social welfare authorities or the administrative courts overstepped their margin of appreciation in placing J. in public care and maintaining that care. The Court places particular weight on 1 23/09/1999 23/02/1998 31/03/98 11 LB ... M. PELLONPÄÄ 40521/98 2 1 E. and S. [Erkki and Satu VIHANTA] Finland 4 the fact that he was placed with substitute parents at the age of two months due to the mother’s hospitalisation for a mental disturbance and the father’s unwillingness to assume the care of the son. Four years passed before the applicants attempted to have the public care terminated. Considering also that J., soon ten years old, has been living with the same substitute parents from the age of eight months and given the applicants’ sparse visits to him despite the absence of any access restrictions, the Finnish authorities could reasonably consider it justified to maintain J.’s public care. Accordingly, the interference with the applicants’ rights can be considered proportionate to the legitimate aim pursued and thereby “necessary in a democratic society”. To sum up, the interference has been justified under Article 8 § 2 of the Convention.

It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress Registrar President