22 February 2011

FOURTH SECTION

Application no. 51555/09 by J. and OTHERS against Finland lodged on 24 September 2009

STATEMENT OF FACTS

THE FACTS

The applicants, Mr J. and his six minor children , are Finnish nationals . They are represented before the Court by Mr Matti Kauppi, a lawyer practising in Helsinki .

A. The circumstances of the case

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

The applicant father J. and L. were married in 1999. L. had four children from her previous relationship, of whom three lived with J. and L. (born in 1994, 1996 and 1998 ). J. and L. had six children of their own, in 2000, 2002, 2003, 2004, 2005 and 2007. J. had regular work while L. stayed at home to take care of the children. In 2005 and 2006 the parents were separated for a while due to marital problems. In April 2007 J. moved away from the family home, and in December 2007 they filed for a divorce which was granted in July 2008.

The children continued to live with their mother L., and J. met with them regularly during the weekends either at their home or at his home. In May 2007 the parents agreed on joint custody of all their six children and that the children would live with their mother. This agreement was confirmed by the child welfare officer ( lastenvalvoja, barnatillsyningsman) .

On 7 July 2007 L. decided to move to a shelter with her nine children as she claimed to be afraid of their father. She was later diagnosed as suffering from psychotic symptoms, including irrational fears, and she was admitted to a hospital until 30 August 2007. The children were taken into public care, with their mother ’ s consent, by an emerge ncy care order issued on 8 July 2007. They were placed in a reception home to wait for their final placement elsewhere. J. expressed his wish to take the children to live with him.

In October 2007 J. decided to come back to support his sick ex-wife and they took an apartment together.

First set of proceedings relating to the taking into public care and the placement of the children

On 8 November 2007 the municipal Social Welfare and Health Care Board ( sosiaali- ja terveyslautakunta, social- och hälsovårdsnämnden ) decided to take all the children into public care. These decisions were submitted for the approval ( alistus, underställning ) of the Administrative Court ( hallinto-oikeus, förvaltnings - domstolen ).

On 27 November 2007 both parents made a legal agreement that the children live with their father, J.

By letter dated 28 November 2007 both J. and L. appealed against the Board ’ s decisions to the Administrative Court , requesting that these decisions be quashed. However, if the taking into public care were not quashed, they wanted the children to be placed with their father, J.

On 11 December 2007 J. and L. agreed on a plan for reuniting the family. Their plan was for the two girls and the youngest boy to be returned home immediately while the three older boys were to be returned by 1 February 2008 and L. ’ s three children by 1 March 2008.

By decisions of 4 and 9 January 2008 the three oldest boys were placed in a foster home 250 km from their home town. These decisions were motivated by the fact that the boys needed special attention and care due to their underdevelopment and behavioural problems. By letter dated 10 March 2008 J. and L. appealed against this decision to the Administrative Court , requesting that it be quashed and that the three boys be placed with their father.

On 18 January 2008 the municipal Social Welfare and Health Care Board decided to place the youngest child in a nearby foster home. By letter dated 25 March 2008 J. and L. appealed against this decision to the Administrative Court , requesting that it be quashed and that the youngest boy be placed with his fa ther .

By letter dated 15 May 2008 J. requested that the municipal Social Welfare and Health Care Board terminate the public care order in respect of the youngest child and place him with J.

On 16 May 2008 the Administrative Court, after having held an oral hearing on 27 March 2008, rejected J. ’ s and L. ’ s appeal and confirmed the taking into public care of all children. It found that the care and up-bringing of the children had been neglected. The parents had been offered help in the form of day-care and assistance at their home but they had declined any help from the child welfare authorities. As the circumstances at home might seriously endanger the children ’ s health and development and other assistance had not been possible or sufficient, the court found that the children could be taken into public care and placed in foster care. As to their placement, the court found that J. was not able to take care of all the children aged between 1 and 10 years but ordered that the two girls be placed with him. The three oldest boys continued to be placed together in the foster home which was the best place for them considering their special needs. The youngest boy continued to be placed in another foster home.

After the judgment L. demanded that all the children live with her and disagreed with J. about the care of the children.

By letter dated 11 June 2008 J. appealed the decisions of 16 May 2008 to the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ), requesting that they be quashed as far as the public care order was concerned and that, in any event, the court order that all the children be placed with him.

On 18 June 2008 the child welfare authorities informed J. that they were not going to implement the Administrative Court ’ s decision but were going to appeal to the Supreme Administrative Court instead. By letter of the same date J. requested the Supreme Administrative Court to implement immediately the Administrative Court ’ s decision of 16 May 2008 in respect of the two girls and asked that they be placed with him immediately.

On 10 March 2008 J. applied for the termination of the public care of all of his children, or in the alternative that they be placed with him. He claims that he never received any decision on this issue.

On 27 August 2008 the Administrative Court rejected the appeal concerning the placement of the four boys. It found that the foster home where they had been placed was able to offer professional help which the boys needed and that they had clearly progressed while placed there. Their placement in the foster home was in their best interest.

By letter dated 25 September 2008 J. appealed against the decisions of 27 August 2008 to the Supreme Administrative Court , requesting that they be quashed and that the three boys be placed with him .

On 30 March 2009 the Supreme Administrative Court upheld the Administrative Court ’ s decisions of 16 May 2008 concerning the taking into public care of the children. On the same date it also upheld the Administrative Court ’ s decision of 27 August 2008 concerning the placement of the three oldest boys.

On 17 May 2009 the two girls went to live with J.

Second set of proceedings relating to the taking into public care and the placement of the children

On 6 June 2009 the parents agreed again to joint custody of all the children, who would live with their father. This agreement was confirmed by the child welfare officer on 11 June 2009 in respect of the two girls.

By letter dated 24 June 2009 J. applied again for the termination of the public care order in respect of his four sons, or in the alternative that they be placed with him.

On 20 October 2009 the municipal Social Welfare and Health Care Board decided to maintain the public care order in respect of the three oldest boys. It found that termination of the public care order would not be in the boys ’ best interest. The decision was based on several medical and other statements about the boys and on the need to secure their continued positive development.

By letter dated 12 November 2009 J. appealed against the decision of 20 October 2009 to the Administrative Court , requesting that the decision be quashed. However, if the decision were not quashed, he wanted the three boys to be placed with him.

On 12 November 2009 the municipal Social Welfare and Health Care Board decided to terminate the public care order with immediate effect in respect of the two girls.

On 7 January 2010 the municipal Board decided to continue the public care of the youngest boy as it was in the child ’ s best interest. Also this decision was based on several medical and other statements about the boy as well as on the need to secure the continuation of his positive development.

By letter dated 21 January 2010 J. appealed against the decision of 7 January 2010 to the Administrative Court , requesting that the decision be quashed. However, if the decision were not quashed, he wanted the youngest boy to be placed with him.

On 2 November 2010 the Administrative Court , after having held an oral hearing on 30 August 2010, rejected the appeals. It found that, even though J. had managed to take care of the two girls, he would not be able to take care of the four boys in addition. All the boys had special needs and they clearly benefited from placement in their respective foster homes. The youngest boy in particular continued to need a peaceful environment in order to progress. The father did not have a realistic picture of the extent of the boys ’ problems and of the work their treatment required. It was not in the best interest of any of the boys to change their placement, nor could their development be secured by less drastic means.

By letter dated 4 November 2010 J. appealed against the decisions of 2 November 2010 to the Supreme Administrative Court , requesting that they be quashed and that all the boys be placed with him. He referred to Article 8 of the Convention and claimed that the national authorities had failed to examine properly the possibilities for reuniting the family. The boys had been taken into public care more than three years previously. The circumstances had changed since the first decision on the taking into public care was taken and J. had now remarried.

These proceedings are apparently still pending before the Supreme Administrative Court .

Proceedings relating to contacts and visiting rights

On 14 and 20 December 2007 the child welfare authorities decided to restrict contacts between the parents and the five oldest children with a view to securing their forthcoming placement. The children were allowed to visit their parents between 25 and 26 December 2007 at their father ’ s home. Concerning the youngest child, the authorities decided on 20 December 2007 that the parents had the right to meet him once a week.

On 15 May 2008 the municipal authorities decided that J. had the right to meet the two girls once a month at his home and that he could also visit them at the reception home every weekend from Friday to Sunday.

By letter dated 15 May 2008 J. requested that the municipal Social Welfare and Health Care Board grant him access to the youngest child every other weekend and during the school holidays.

On 26 May 2008 the municipal authorities decided that J. had the right to meet the youngest child under supervision once a month for two hours at a time.

By letter dated 25 June 2008 J. appealed against all these decisions to the Administrative Court , requesting that they be quashed.

On 8 June 2009 the Administrative Court quashed the decisions of 15 and 26 May 2008. It found that, as concerned the youngest child, there should have been two meetings per month. As concerned the two girls, the court found that there were no grounds to restrict their contact with their father as the court had already ordered their placement with the father.

By letter dated 24 June 2009 J. applied for an extension of his visiting rights in respect of his four sons.

On 7 January 2010 the municipal Social Welfare and Health Care Board decided to restrict the contacts between J. and the youngest boy. J. was granted a right to meet him once a month for 3 to 4 hours.

By letter dated 21 January 2010 J. appealed against the decision of 7 January 2010 to the Administrative Court , requesting that the decision be quashed. He requested that he and his other children be able to meet the youngest boy every other weekend and during the school holidays. The youngest boy had only been able to meet his siblings once or twice during his placement in the foster home.

On 12 May 2010 the municipal Social Welfare and Health Care Board apparently decided to restrict the contact between J. and the three boys.

By letter dated 25 October 2010 J. appealed against the decision of 12 May 2010 to the Administrative Court , requesting that it be quashed and that the three boys have the right to meet J. and their siblings every other weekend and during the school holidays. These proceedings are apparently still pending before the Administrative Court .

On 2 November 2010 the Administrative Court rejected the appeal concerning the decision of 7 January 2010. It found that the visiting rights J. had demanded would have endangered the health and development of the youngest boy. Restrictions on the visiting rights had been necessary and in the best interest of the child.

By letter dated 4 November 2010 J. appealed against the decision of 2 November 2010 to the Supreme Administrative Court, requesting that the decision be quashed and that the court grant him access to the youngest child every other weekend and during the school holidays. These proceedings are apparently still pending before the Supreme Administrative Court .

B. Relevant domestic law

Section 47 of the Child Welfare Act ( lastensuojelulaki, barnskyddslagen , Act no. 417/2007) stipulates, as regards the duration and termination of care, as follows:

“Taking into care is valid indefinitely. When the need for care and substitute care under section 40 no longer exists, the municipal officeholder determined under section 13(1) must make a decision on terminating the care when the social worker responsible for the child ’ s affairs has prepared the case. Care must not be terminated even if the conditions for taking a child into care no longer exist if termination is manifestly not in the interests of the child in the manner referred to in subsection 3.

The social worker responsible for the child ’ s affairs must assess the conditions for continuing care when the client plan is reviewed, when a child or custodian applies for termination of care or when it otherwise proves necessary.

When a child ’ s interests are being considered in a case concerning termination or care, in addition to what is said in section 4(2), the following must be taken into account: the duration of substitute care, the quality of the affection between the child and the party providing substitute care, interaction between the child and the parents and the child ’ s views.

Care is terminated when the child concerned reaches 18 years of age.”

COMPLAINTS

The applicants complain under Article 8 of the Convention that that Article has been violated as the children have been taken into public care even though J. would be capable of taking care of them. As the three boys have been placed in a faraway city, they have not been able to maintain contact with their parents or their other siblings. Nor has J. been able to maintain contact with his children. All six children have been unable to maintain contact with their three older siblings with whom they used to live. The applicants ’ family life has been interrupted. The national authorities have not taken any active measures in order to reunite the family even though two years have already elapsed. They have not reassessed J. ’ s ability to have all the children living with him but have preferred to attach the children to their foster families.

QUESTION TO THE PARTIES

Has there been an interference with the applicants ’ right to respect for their family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2, in particular on account of the lawfulness of the various access restrictions imposed on J. and his four sons, and the alleged failure to take effective measures with a view to r euniting J. with his four sons?