DISSENTING OPINION OF MRS. THUNE AND MR. PELLONPÄÄ

             (regarding Article 8 of the Convention)

       We disagree with the majority of the Commission in so far as

concerns the violation of Article 8 of the Convention.

       The Convention entered into force with respect to Finland on

10 May 1990. Although the complaint concerns developments which had

started earlier, only the events subsequent to that date can be taken

into account in the assessment of whether there has been lack of

respect for the applicant's rights guaranteed by Article 8. The

Commission must take as its starting point the situation on

10 May 1990. It is not competent ratione temporis to evaluate, from the

point of view of the Convention, the decisions and events which led to

the situation as it existed on the above-mentioned date. Thus, the

Commission should not, as it seems to do in para. 137, have regard to

the non-enforcement of certain decisions between 1985 and 10 May 1990

as an aggravating circumstance against the State, nor regard the fact

that S. had spent that period with her grandparents as a factor

speaking against the applicant.

       We note that on 30 May 1990 the National Board for Social

Welfare recommended the local Social Welfare Board to take measures so

as to have custody over S. transferred to R.N. and S.N. This initiative

finally led to the judgment of the Court of Appeal of

25 September 1991, whereby custody of S. was transferred to R.N. and

S.N. This was deemed to be in the interest of S. Taking into account

the margin of appreciation of State authorities, we cannot find that

this decision was in violation of Article 8 of the Convention. In

reaching this conclusion we note that the Court of Appeal confirmed

that the applicant would retain his status as S.'s legal guardian and

granted him visiting rights with respect to S. Visiting rights had been

granted by the District Court's interim decision of 14 November 1990.

These  were, however, later revoked as a consequence of the District

Court's final decision of 8 May 1991, whereby the applicant retained

custody of S.

       The applicant has not been able to exercise his visiting rights

based on any of these decisions. This state of affairs appears to be

primarily due to the lack of compliance with a number of court

decisions on the part of R.N. and S.N., i.e. private persons for whose

actions and omissions the State is not directly responsible. The

question remains, however, whether the non-enforcement of the visiting

rights by State authorities shows a lack of respect for the applicant's

rights guaranteed by Article 8.

       As stated by the Commission, the "notion of 'respect' enshrined

in Article 8 is not clear-cut. This is the case especially where the

positive obligations implicit in that concept are concerned. Its

requirements will vary considerably from case to case according to the

practices followed and the situations obtaining in the Contracting

States. When determining whether or not such an obligation exists

regard must be had to the fair balance that has to be struck between

the general interest and the interests of the individual as well as to

the margin of appreciation afforded to the Contracting States"

(para. 131 and the case mentioned therein).

       We accept that it is appropriate in this context to seek

guidance from the case of Olsson v. Sweden (no. 2) (Eur. Court H.R.,

judgment of 27 November 1992, Series A no. 250), referred to in

para. 133 of the Report. As stated in that case, "what will be decisive

is whether the national authorities have made such efforts to arrange

the necessary preparations for reunion as can reasonably be demanded

under the special circumstances of each case" (pp. 35-36, para. 90).

       The question in the present case is whether the Finnish

authorities have made such efforts as can reasonably be demanded of

them with a view to enforcing the applicant's rights. In deciding this

question all the circumstances of the case must be taken into account,

including the fact that the applicant has never lost his status as S.'s

legal guardian.

       We note that on two occasions, once before and once after the

transfer of custody of S., the County Administrative Board has

threatened R.N. and S.N. with administrative fines of 5.000 FIM each.

In addition, the social authorities have offered their services with

a view to conciliation between the parties. The authorities, however,

have neither ordered the physical transfer of S. as a means of

enforcement, nor ordered the payment of the administrative fines.

       The fact that after the transfer of custody domestic law

excludes the possibility of a physical transfer of S. for the purpose

of the enforcement of the applicant's visiting rights is not decisive

in the assessment whether the Convention has been complied with. Even

so, we cannot conclude that the failure to use force, whether it

results from the legal situation or from reluctance of the authorities

to resort to such a measure, amounts to a breach of Article 8. In the

delicate situation in question, where the interests of the child must

be an overriding consideration, the use of physical coercion cannot be

regarded as required by the Convention.

       There remains the question whether, in order to comply with the

Convention, the authorities should have resorted to additional measures

short of physical transfer. While domestic law may have afforded

certain possibilities, we doubt whether they would have provided

appropriate means of protecting the applicant's rights. In any case,

we find it understandable that, pending the proceedings concerning the

transfer of custody, no drastic measures were resorted to.

       We accept that one may question whether enough has been done by

the authorities after the transfer of custody on 25 September 1991. In

particular, the length of the appeal proceedings concerning the

administrative fines with which R.N. and S.N. were threatened on

31 December 1992 is disturbing. Nevertheless, we do not think this

suffices to constitute a violation of Article 8. In the light of all

the circumstances of the case we conclude, on balance, that the

behaviour of the State authorities in the period following 10 May 1990

does not show a lack of respect for the applicant's rights as

guaranteed by Article 8.

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                             Item

_________________________________________________________________

10 April 1992                    Introduction of the application

13 April 1993                    Registration of the application

Examination of Admissibility

29 June 1992                     Commission's decision to invite the

                                 Government to submit observations on

                                 the admissibility and merits of the

                                 application

10 October 1992                  Government's observations

10 November 1992                 Applicants' observations in reply

9 February 1993                 Commission's deliberations and

                                 decision to declare the application

                                 in part admissible, in part

                                 inadmissible and to request further

                                 written observations on the merits

Examination of the merits

19 February 1993                 Decision on admissibility transmitted

                                 to the parties

18 March 1993                    Applicant's further observations on

                                 the merits

19 March 1993                    Government's further observations on

                                 the merits

22 April 1993                    Applicant's supplementary observations

                                 on the merits

8 May 1993                      Commission's consideration of the

                                 state of proceedings

28 September 1993                Government's supplementary

                                 observations on the merits

11 October 1993                  Applicant's supplementary observations

                                 on the merits

15 October 1993                  Commission's deliberations on the

                                 merits and final vote

22  October 1993                 Adoption of the Report

                             APPENDIX III

CALENDAR OF MEASURES TAKEN DURING THE SECOND SET OF CUSTODY

PROCEEDINGS

Date                             Item

_________________________________________________________________

13 August 1990                   Request by the Social Welfare

                                 Board of Tuusula to the District

                                 Court of Tuusula for a transfer of

                                 custody of S. to R.N. and S.N.

16 August 1990                   The District Court's first

                                 consideration of the request. Fixing

                                 of hearing.

19 September 1990                Hearing before the District Court.

                                 Decision to obtain an opinion from

                                 the Guardianship Board of Tuusula.

31 October 1990                  The Guardianship Board's opinion

                                 arrives to the District Court.

14 November 1990                 Second hearing before the District

                                 Court. Decision to obtain an opinion

                                 from the Child Guidance Centre of

                                 Central Uusimaa. Interim decision

                                 ordering that S. stay with R.N. and

                                 S.N. and the applicant enjoy visiting

                                 rights.

20 December 1990                 The applicant's request to the County

                                 Administrative Board for enforcement

                                 of the District Court's interim

                                 decision.

1 January 1991                  The Child Guidance Centre of Uusimaa

                                 ceases to exist. Its functions are

                                 taken over by the Child and Family

                                 Guidance Centre of Tuusula.

2 January 1991                  Interim decision by the County

                                 Administrative Board. Communication

                                 to the applicant.

31 January 1991                  The applicant's renewed request to the

                                 County Administrative Board for

                                 enforcement of the District Court's

                                 interim decision.

5 February 1991                 R.N.'s and S.N.'s observations on the

                                 applicant's enforcement request

                                 arrive to the County Administrative

                                 Board.

27 February 1991                 The County Administrative Board

                                 transmits the documents to the

                                 conciliator of Järvenpää.

15 March 1991                    The conciliator returns the documents

                                 to the County Administrative Board.

28 March 1991                    The County Administrative Board's

                                 decision ordering R.N. and S.N. to

                                 comply with the District Court's

                                 interim decision under a threat of

                                 administrative fines of 5.000 FIM

                                 each.

7 May 1991                      The opinion by the Child and Family

                                 Guidance Centre of Tuusula arrives to

                                 the District Court.

8 May 1991                      The District Court's decision

                                 rejecting the Social Welfare Board's

                                 request for a transfer of custody.

6 June 1991                     The Social Welfare Board's appeal

                                 arrives to the District Court.

7 June 1991                     R.N.'s and S.N.'s appeal arrives to

                                 the District Court.

19 June 1991                     The applicant's request to the County

                                 Administrative Board of enforcement

                                 of the District Court's decision of

                                 8 May 1991.

24 June 1991                     The applicant's observations on the

                                 appeals arrive to the District Court.

24 June 1991                     R.N.'s and S.N.'s observations on the

                                 applicant's enforcement request

                                 arrive to the County Administrative

                                 Board.

25 June 1991                     The County Administrative Board's

                                 interim decision. Communication to

                                 the applicant.

27 June 1991                     The appeals are transmitted by the

                                 District Court to the Court of Appeal

                                 of Helsinki.

5 July 1991                     The case is assigned to a Rapporteur

                                 Judge.

24 July 1991                     The Court of Appeal's interim decision

                                 ordering stay of execution of the

                                 District Court's decision of 8 May

                                 1991.

31 July 1991                     R.N's and S.N.'s observations on the

                                 applicant's enforcement request of

                                 19 June 1991 arrive to the County

                                 Administrative Board.

2 August 1991                   The Court of Appeal's request to the

                                 County Administrative Board to obtain

                                 the applicant's observations in reply

                                 to R.N.'s and S.N.'s appeal.

25 September 1991                The Court of Appeal's decision

                                 transferring S.'s custody to R.N. and

                                 S.N. and granting the applicant

                                 visiting rights.

26 November 1991                 The applicant's as well as R.N.'s and

                                 S.N.'s requests for leave to appeal

                                 arrive to the Supreme Court.

2 December 1991                 The case is assigned to a Rapporteur

                                 Judge.

14 January 1992                  The Supreme Court's deliberations.

21 January 1991                  The Supreme Court's decision.