M.N. v. FINLAND
Inadmissible
Nicolas Bratza
The applicant, Mr M.N., is a Finnish national who was born in 1942. He is represented before the Court by Mr E. Sallinen, a lawyer practicing in Nakkila. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant has a son, M., born in May 1991 out of wedlock. The applicant stopped cohabiting with M.’s mother, A., shortly after M.’s birth. A. was granted sole custody of M. and no access arrangements were made for the applicant. It appears that the applicant had barely any contact with his son in his early childhood. Due to A.’s unstable life, child welfare officials intervened to give her support in caring for M. from the age of three months onwards. In December 1997, M., then aged six, was taken into public care for a period of seven months and placed with a substitute family (S.-V.), who lived some 20 kilometres away from the applicant’s home. Since then, this family has provided M. with support and respite and holiday care. In 1998 M. started psychological therapy. On 2 February 2000, A. was hospitalised and M. moved to live with the S.-V. family. Ten days later A. died. M. continued to live with S.-V. Around that time the applicant began to visit M. regularly, and it appears that M. began to stay with him every other weekend. On 14 November 2000, the local Social Welfare Board (sosiaalilautakunta, socialnämnden) decided to take M. into public care pursuant to the Child Welfare Act (lastensuojelulaki, barnskyddslagen) and ordered that he be placed with the S.-V. family. It appears that the applicant consented to the care order, and did not appeal against it. Meanwhile, the Social Welfare Board instituted proceedings before the District Court (käräjäoikeus, tingsrätten), requesting that custody of M. be granted to his foster parents. During the proceedings, the applicant applied for custody. On 9 March 2001, the District Court decided that custody of M. should be granted to the applicant as he, as a biological parent, was willing to assume custody. In addition, the visits between the applicant and M. had taken place without difficulty. In December 2001 the applicant requested the Social Welfare Board to remove his son from public care. The Social Welfare Board asked for a report on the applicant’s circumstances from the Social Welfare Board of the applicant’s home municipality. According to the report, the applicant had been unwilling, or unable, to cooperate. The social welfare officials considered that were M. to live with his father, his care, upbringing, supervision and other needs might not be guaranteed. They were not convinced that M. would be better off with his father. M.’s psychiatrist, Dr. P., filed an opinion with the Social Welfare Board, in which she reported that M. did not want to decide where he should live, but had said that he did not want further changes in his life and wished to continue going to the same school with his friends. It appears that the applicant was invited to participate in two preparatory meetings held by the Social Welfare Board on 15 March and 2 April 2002. The applicant did not attend. On 4 June 2002, the Social Welfare Board decided to refuse the request. It considered that the circumstances justifying M.’s continued public care still existed. The applicant continued to meet M. regularly. It appears that although he was granted a right to have M. live with him for two extended periods in June and July 2002, for reasons attributable to the applicant the visits did not in fact take place. The applicant challenged the care decision before the Turku Administrative Court (hallinto-oikeus, förvaltningsdomstolen). He claimed that public care was contrary to M.’s interests. Further, the fact that he was M.’s biological father had been neglected in the decision-making. He maintained that if the decision had been based on the fact that he had never lived with M., it was deficient since he had never been given that possibility. The Social Welfare Board submitted a statement to the court to which the applicant filed a response. Upon the request of the applicant, the Administrative Court held an oral hearing on 9 October 2002. In the hearing the applicant maintained that M. should live with him. He claimed that cooperation between the social welfare officials and the substitute family had been difficult. The court took evidence from a social worker, K., who stressed inter alia that M. had been provided with child welfare services since the age of three months. She also considered that cooperation with the applicant had been difficult and that he was socially restricted. The foster mother, S., told the court that the applicant had never visited them and that M. had developed significantly during his stay with the substitute family. M., then aged eleven, expressed the view that he would like to live with his father, although he had good relations with his foster parents and the other children living in the substitute family. The Administrative Court upheld the decision on 30 October 2002. It found that the mere fact that the applicant had been granted custody of M. was not conclusive of the public care in issue. It went on to find that the applicant was reported as having been uncooperative with the social welfare officials, who could not rely on him to take day-to-day responsibility for M. As M. had had difficult experiences and had suffered bereavement in his childhood, the Administrative Court concluded that, in its assessment, the continuation of public care in the substitute family was in M.’s best interests. On 2 December 2002, a care plan meeting was held at the home of the substitute family. According to the Government, the social welfare official reported that the applicant had behaved inappropriately at the meeting. This was contested by the applicant. The Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), having obtained written submissions from the Social Welfare Board and the applicant, upheld the public care decision on 16 September 2003. In summer 2006 M. lived with the applicant for a month. He refused to return to the S.-V. family and on 18 July 2006, he was placed in a children’s foster home. When the re-placement was considered by the Social Welfare Board, M. did not object, and nor did he express the wish to live with the applicant. The applicant did not attend a preparatory hearing although allegedly invited. M. spent two weeks with the applicant over Christmas 2006. For an account of domestic law see K. and T. v. Finland [GC], no. 25702/94, §§ 94-133, ECHR 2001VII and R. v. Finland, no. 34141/96, §§ 54-58, 30 May 2006). In addition, the provisions of particular relevance to the present case are described below. Section 16 of the Child Welfare Act (lastensuojelulaki, barnskyddslagen, Act no. 683/1983 as later amended) provides that the Social Welfare Board must take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by alcohol or drug abuse, by committing an illegal act other than a minor offence or by any other comparable behaviour; (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) substitute care is considered to be in the best interests of the child. According to section 20 of the Act, the Social Welfare Board must discharge a child from care when there is no longer any need for the care or substitute placement referred to in section 16, unless such discharge is clearly contrary to the best interests of the child. In determining the best interests of the child, the duration of the substitute care, the relationship between the child and the persons providing the substitute care, and the contacts between the child and his parents shall be taken into account.