BGHIAL EL HACH HOUCH v. FINLAND
Inadmissible
Nicolas Bratza
The applicant is a Moroccan and Finnish citizen of Moroccan origin who was born in 1961 and lives in Oslo, Norway. In 1990 the applicant married a Finnish citizen, M., with whom he had two children in 1992 and 1994. The children also have dual nationality. In 1995 the parents divorced and the District Court (käräjäoikeus, tingsrätten) of Oulu awarded the mother sole custody of the children, whereas they were entitled to receive unsupervised visits by the applicant every other weekend and during certain holidays. In 1996 the Court of Appeal (hovioikeus, hovrätten) of Rovaniemi ordered that the meetings should take place on specific premises outside the home of the children. The applicant was refused leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). In 1998 the applicant sought to be awarded joint custody of his children as well as to have the visiting arrangements modified. With the mother’s agreement, he had been caring for the children in his home despite the terms of the Court of Appeal’s judgment. In the summer of 1998, however, the mother had refused to comply even with those terms, instead insisting on supervised visits. The applicant requested that the children be allowed to stay with him in his new family (his new wife and their mutual child) during most of their school holidays. At any rate, the applicant requested to obtain information from the authorities on matters relating to his children. During the family advice centre’s investigation into the best interests of the children the parents agreed to the children being interviewed in March 2000. Shortly before the date in question the mother telephoned the applicant from Norway, where she gone with the children. In its recommendation of May 2000 to the District Court the family advice centre favoured the applicant’s request to have the children stay with him during holidays. Before the District Court both parents were assisted by members of the Bar. The court took oral evidence from the parties and the mother’s sister. The mother opposed the applicant’s requests to the District Court and could only agree to supervised visits twice a month in Norway. She stressed the dual nationality of the children and their inclusion in the applicant’s passport, which would facilitate their abduction to Morocco. She also pointed out that his new wife was also Moroccan. On 30 June 1999 the District Court maintained the sole custody of the children. Agreeing with the local family advice centre, the District Court nevertheless entitled them to spend most of their school holidays with the applicant in Finland. The District Court had particular regard to the distance between their current home in Norway and that of the applicant in Finland, which would have rendered the access arrangement proposed by the mother impracticable and expensive. The District Court further entitled the applicant to obtain information from the authorities on matters relating to his children. On the mother’s appeal the Court of Appeal, in August 1999, stayed enforcement of the District Court’s judgment. In its judgment of 12 January 2000 the Court of Appeal ordered that the meetings between the children and the applicant could only take place where the children were living in Norway. The meetings were further to be supervised and could only take place on premises which the applicant had located in advance. The Court of Appeal noted the applicant’s declared intention to bring the children to his parents in Morocco, which had raised fear in M. that the children could be abducted. In the absence of a bilateral treaty preventing child abduction from Finland to Morocco and given the age of the children and their current place of residence, the Court of Appeal concluded that it was not appropriate for meetings between them and the applicant to take place in Finland. The Court of Appeal reached its judgment after a re-hearing, where the parents were again assisted by counsel and which included the taking of testimony from one additional witness on behalf of M. and from two further witnesses proposed by the applicant. The Court of Appeal also had regard to information from the Norwegian authorities as well as to the applicant’s solemn undertaking at the Moroccan Embassy to return to Finland with the children after any visit to his parents. In seeking leave to appeal to the Supreme Court, again with the assistance of counsel, the applicant argued that he had been discriminated against on the basis of his origin in that the Court of Appeal had suspected him of planning to abduct his children to Morocco. The Court of Appeal had furthermore wrongly assumed that the Norwegian authorities would be assisting in locating premises for the visiting arrangements. The applicant further argued that had he wanted to abduct the children he would have had ample opportunity to do so at an earlier stage, when he was occasionally caring for the children in their mother’s absence, even after the Court of Appeal’s judgment of 1996. Leave to appeal to the Supreme Court was refused on 31 May 2000. Meanwhile, in April 2000 the District Court of Hammerfest in Norway dismissed the applicant’s request for enforcement of the visiting arrangements, noting that according to the mother she had not been obstructing the preparation of visits. On the contrary, the applicant had not been in contact with her to agree on the dates of the visits. It is not known whether the applicant appealed against this decision. In the autumn of 2001 the applicant moved to Norway. According to the 1983 Act on Child Custody and Right of Access (laki lapsen huollosta ja tapaamisoikeudesta, lag angående vårdnad om barn och umgängesrätt 361/1983), a matter relating to child custody and right of access shall be resolved by keeping the interests of the child foremost in mind. To this end, special attention shall be paid to the manner in which custody and right of access may best be realised in the future (section 10).