Information Note on the Court’s case-law 19

June 2000

Nuutinen v. Finland - 32842/96

Judgment 27.6.2000 [Section I]

Article 8

Article 8-1

Respect for family life

Alleged failure of authorities to take sufficient measures to ensure exercise of a father’s right of access to his child: no violation

Article 6

Civil proceedings

Article 6-1

Reasonable time

Length of proceedings concerning access to a child and of re lated enforcement proceedings: violation

(Extract from press release)

Facts : The applicant, Pekka Nuutinen, a Finnish national, was born in 1965 and lives in Rovaniemi. In September 1993 the applicant requested that his paternity in respect of I. , a child born in 1992, be confirmed, that custody of  I. be shared with the mother, H., and that the child be granted access rights in respect of the applicant. In January 1994 the Kuopio City Court adjourned the case until May 1994 but due to the mother’ s failure to deliver blood samples it had to be adjourned until September 1994. The proceedings were then further adjourned until December 1994, the City Court having decided to seek opinions on the question of access from the Kuopio and Helsinki social we lfare authorities. In December 1994 the Helsinki authority’s time limit was extended until May 1995 but the applicant’s paternity was confirmed and interim access rights were granted. In June 1995 custody of I was awarded solely to H. and the child was gra nted the right to meet with the applicant for two hours every other month. H. consistently refused to comply with the access arrangements, allegedly fearing for her and the child’s safety and referring to the applicant’s assault of H in 1991, when she had been pregnant with I. Conciliation attempts were fruitless. In February 1996 the Chief Bailiff ordered the mother to comply with the access order on pain of an administrative fine. In October 1996 this fine was upheld and a further fine was imposed in resp ect of any future non-compliance. In December 1996 the applicant brought fresh proceedings before the Helsinki District Court, again seeking to obtain shared custody of the child and extended access rights. H. objected and sought to have the access rights revoked. In January 1997 the applicant requested that the child be fetched for enforcement purposes.

In April 1997 the District Court found that enforcement  would not be contrary to the interests of the child, bearing in mind the limited access and the ne utral meeting premises. It nonetheless declined to order that the child be fetched to the meetings. Having regard to the mother’s attitude, the District Court found it most likely that access would not take place despite any changes in the access arrangeme nts. The fact that the child had never met the applicant could therefore be seen as a weighty reason for ordering I. to be fetched. On the other hand, such a measure could not be the right way for I. to get to know the applicant. Instead she was to be give n a possibility to get to know him gradually on a voluntary basis. The District Court modified the terms of implementation of the access largely according to the mother’s wishes. It waived the previously imposed fine but imposed an automatically staggered one for any future non-compliance. In March 1998 the District Court, having taken fresh evidence, dismissed the applicant’s further request that the child be fetched to the meetings. It upheld the earlier fine and imposed a further one on the mother.

Mean while, in April 1997, the second set of substantive proceedings regarding custody and access had been adjourned until October 1997, the Helsinki District Court having requested fresh opinions from the social welfare authorities of Helsinki and Kuopio. The Helsinki authority was granted an extension until the end of 1997. In April 1998 the District Court dismissed the applicant’s request for joint custody and revoked the access arrangements. Having heard the mother in the applicant’s absence, it had become c onvinced that her fear of him had not been dispersed and would inevitably be passed on to the child. Any access at I’s age would therefore produce distress and confusion which could lead to her permanent depression and anxiety. Moreover, the District Court ’s hearing of the applicant had strengthened the view that he was unable to distinguish between the child’s interests and his own and was perceiving I.’s access right as an obligation of hers.

In May 1998 the Helsinki Court of Appeal relieved H. of paying the administrative fine upheld  in March 1998 and declined to uphold the further fine imposed at that time. In December 1998 the Court of Appeal refused the applicant’s appeal in the second set of substantive proceedings, noting that he had refused to prov ide detailed information on his own situation at the time of the social authorities’ fresh investigation in 1997. The Supreme Court refused him leave to appeal in February 1999.

The applicant complained that his rights under Articles 6 and 8 of the Convent ion had been infringed in that the court proceedings for the determination of the paternity, custody and access rights of his daughter had been excessively lengthy. Moreover, the authorities had failed to make sufficient efforts to enforce the access order s, with the result that the applicant and his daughter had never been able to meet.

Law : Article 6 of the Convention - The Court detected certain delays imputable to the first-instance courts in the two sets of substantive proceedings, in particular as regards the written hearing of the Helsinki social welfare authority on the access question. In the first set of procee dings this authority had been afforded a total of nine months to prepare its opinion. In the second set of proceedings it had been granted eight months to submit a fresh opinion in a matter which was no doubt complex but certainly not new to the authority. These periods had to be considered strikingly long in a case of this kind and the responsibility for ensuring compliance with the requirements of Article 6 rested ultimately with the courts. The Court recalled that what was at stake for the applicant was not only his right to obtain a speedy court confirmation of his biological and legal ties with I. Those ties had been confirmed already in December 1994 when access rights had been granted. At the time the applicant had not yet seen his daughter, then almo st two years old. She was almost seven years old when the ensuing proceedings eventually ended with the revocation of the access rights without the applicant ever having seen his child. In the light of the criteria laid down in its case-law and having rega rd to the particular circumstances of the case, the Court concluded that the length of the overall substantive and enforcement proceedings (five years and five months) had exceeded a “reasonable time”. Accordingly, there had been a violation of Article 6 § 1 of the Convention.

Conclusion : violation (unanimous).

Article 8 of the Convention - The Court noted that the access rights had been in force for over three years before being revoked without ever having been enforced. The applicant’s enforcement request s had led to the imposition on the mother of various administrative fines, although these had with one exception been waived after the revocation of the access rights in April 1998. The applicant’s two requests that his daughter be fetched to meetings with him had been dismissed, the second request even after the mother had refused to comply with access arrangements which had been modified largely according to her wishes. The Court saw no reason to question the Helsinki District Court’s finding that such a drastic measure would not have been in the child’s best interests. Nor could the waiver of the various fines imposed on the mother be given any decisive significance in the assessment of whether the authorities could, at the time of imposing those fines, r easonably consider them to be sufficient as a means of enforcement. Moreover, the applicant himself had contributed to the delays at the enforcement stage by not co-operating sufficiently with the social authorities and by repeatedly behaving in an inappro priate and even aggressive manner towards conciliators and other officials investigating the matter.

The Court concluded that in the continuous re-assessment of the child’s best interests the Helsinki social authority could, notably in the light of the app licant’s more recent unwillingness to co-operate, reasonably formulate a recommendation that the access rights should be revoked until the child had reached a more mature age. Likewise the Helsinki District Court’s decision to revoke the access rights in A pril 1998 could not be considered unreasonable. Having regard to the margin of appreciation afforded to the State, the national authorities had therefore taken all necessary steps with a view to enforcing the access rights as could reasonably be demanded i n the very difficult conflict at hand. Accordingly, there had been no violation of Article 8 of the Convention on account of the non-enforcement of the access rights.

Conclusion : no violation (4 votes to 3).

Article 41 of the Convention - The Court awarded the applicant FIM 20,000 as compensation for non-pecuniary damage and FIM 10,000 in respect of costs and expenses incurred in the proceedings before the Commission and the Court less the amount awarded for legal aid by the Council of Europe.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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