FOURTH SECTION

DECISION

Application no. 39595/98 by S. and S. against Finland

The European Court of Human Rights (Fourth Section) , sitting on 15 June 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 18 November 1997 and registered on 2 February 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 regard to the Commission’s decision of 28 October 1999 to communicate the application,

Having regard to the observations submitted by the respondent Government  on 18 February 2000 and the applicants’ letter of 14 April 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants are Finnish national s , born in 1947 and 1975 . The first applicant is the maternal grandmother of N., born in 1993. The second applicant is N.’s aunt and godmother. They are represented before the Court by Mr Ulf Månsson , a lawyer in Helsinki.

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

In 1994 N.’s mother was killed by N.’s father J. in the presence of N. The local social welfare board ( sosiaalilautakunta , socialnämnd ) placed N. in public care to be implemented in substitute family L. The first applicant appealed to the competent county administrative court ( lääninoikeus , länsrätt ), inter alia in so far as the board had ordered that N.’s public care be implemented in a substitute family at an excessive distance from the first applicant’s home. The court declined to examine the appeal in the first resort in so far as it concerned the access arrangements. The court further upheld the decision to implement the public care in the L. family. The Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) in essence upheld the county administrative court’s decision.

Following N.’s placement with substitute parents L., N. and the first applicant met once every two months on neutral premises in the presence of the substitute parents and a social welfare official. The first applicant’s request that N. be allowed to spend one weekend a month in her home was apparently first refused without a formal decision. In February 1996 the board formalised the restriction so far implemented, considering that too frequent contact between N. and her relatives could jeopardise the family life in the substitute home. The first applicant appealed, requesting permission to take N. out of the substitute home for two weekends a month and one week in the summer. She further requested that N. be allowed to be in telephone contact with her twice a week and that N. be allowed to receive correspondence and presents from her. She also argued that the access restriction had not been limited in time, as required by domestic law. In June 1996 the county administrative court rejected the appeal in so far as concerned the number and implementation of the meetings. It considered that the requested access could manifestly jeopardise N.’s development, given, inter alia , the disagreements between the first applicant and the substitute parents. The court nonetheless returned this matter to the social welfare board and directed it to issue a new restriction limited in time and on the official form to be used for this purpose. The court further quashed the board’s decision in respect of the restriction on telephone calls and correspondence, considering , inter alia , that the requested contact by those means would not jeopardise N.’s development.

Later in June 1996 the social welfare board transferred N. to a private children’s home. In September 1996 the board prolonged until April 1997 the restriction on meetings between N. and the first applicant. The county administrative court quashed the last-mentioned decision, noting that the initial access restriction of February 1996 had concerned a situation which had no longer existed at the time of the board’s decision of September 1996, given that N. had been transferred to another substitute family in the meantime.

In January 1997 the first applicant and the social welfare board agreed on one meeting per month between her and N. In April 1997 the board again ordered that meetings take place once every two months and in the presence of a representative of the children’s home. Telephone conversations were restricted to one call every other week with the possibility for the new substitute parents to decide whether it was in N.’s interest to speak with the first applicant. In June 1997 the board prohibited all meetings until 30 September 1997, following which meetings were to take place once every two months until 30 April 1998. The board reasoned that it was in the best interests of the child to prohibit all meetings temporarily so as to prevent further conflicts between the first applicant and the substitute parents. The county administrative court rejected the first applicant’s appeal, having considered, inter alia , an expert opinion finding that N.’s   public care in a substitute home should ideally last until she had reached the age of majority. The court further found that the access prohibition and restriction had been justified in the best interests of the child, given the need to afford her as secure and stable conditions as possible by maintaining her continued close relationship with her current substitute parents.

Due to the access restriction and subsequent prohibition, N. and the applicants did not meet at all between February and October 1997. In November 1997 the first applicant requested the social welfare board to terminate N.’s public care. In the alternative, she requested extended access, whereas the second applicant requested access in the form of a separate meeting with N. once a month. The board considered that no fresh decision was called for, as the matters had already been finally decided. The applicants’ appeal was rejected.

In May 1998 the social welfare board prolonged the access restrictions until May 1999. The applicants’ appeal was rejected. Meanwhile, in 1996, the first applicant had requested custody of N., and the second applicant subsidiary custody, in proceedings initiated before the competent district court ( käräjäoikeus , tingsrätt ). J. and the social welfare board opposed the request already on the grounds that the first applicant lacked standing to initiate such proceedings. The district court declined to examine the merits of the action, given that J. still remained N.’s custodian de jure , in which case the applicants had no standing to request a custody transfer. The court of appeal ( hovioikeus , hovrätt ) quashed the district court’s decision and returned the matter for reconsideration. The Supreme Court ( korkein oikeus , högsta domstolen ) granted J. and the social welfare board leave to appeal and in June 1998 it upheld the District Court’s decision.

COMPLAINTS

1. The applicants complained that their and N.’s right to respect for their family life within the meaning of Article 8 of the Convention had been violated by reason of N.’s unjustified placement in public care and by the excessively rigid and unlawful restrictions on contact between N. and the applicants. Nor was N. afforded therapy swiftly after the killing of her mother, although such need for therapy was emphasised as a reason for her placement in public care. The aim of the access restrictions and the failure to provide adequate therapy had been to alienate N. from the applicants for the benefit of the various substitute parents and with the ultimate goal of rendering her placement in public care permanent. To the same end, N.’s substitute parents had deprived N. of her toys and memorabilia reminding her of the applicants. The private children’s home where N. had later been transferred had allegedly become notorious for attempting to cut the children’s ties to their biological family.

2. The first applicant further complained that her and N.’s right to respect for their family life had also been violated due to the monitoring and interruption of her telephone calls to N. in the private children’s home.

3. The applicants further complained that the various court proceedings had not been fair within the meaning of Article 6 of the Convention. The administrative courts had applied an excessively low standard of proof, accepting as sole and decisive evidence the fact that the first applicant had resorted to various remedies so as to oppose the measures ordered by the social welfare board.              Moreover, the various proceedings had not been reasonably speedy within the meaning of Article 6.

4. The applicants finally complained under Article 13 of the Convention that they had not had any effective domestic remedy at their disposal in order to obtain adequate access in respect of N.

THE LAW [Note1]

The Court recalls that on 28 October 1999 the complaints concerning the access restrictions, the telephone calls and the length of the custody proceedings were communicated to the respondent Government for their observations on the admissibility and merits thereof. Having been invited to comment on those observations, the applicants, on 14 April 2000, informed the Court that they wished to withdraw their application.

The Court recalls that under Article 37 § 1 (a) of the Convention it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue his application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.

In the present case the Court finds no special circumstances regarding respect for human rights as defined in the Convention which require the examination of the application to be continued.

For these reasons, the Court, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES .

Vincent Berger Georg Ress Registrar President

[Note1] In your reasoning specify: Complaint / Article of the Convention [/ Succinct summary of Government’s submissions / Succinct summary of applicant’s submissions in communicated case] / Court’s [Commission’s] case-law, if any / Application of case-law to facts of particular case or considerations for specific facts of case.

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