M.C. v. FINLAND
Inadmissible
Georg Ress
The applicant is a Pakistani national, born in 1961. He is represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The respondent Government are represented by Mr Holger Rotkirch, Director General for Legal Affairs, and Mr Arto Kosonen, Director, both of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the father of Y., born in 1992. He is a Muslim. On 10 November 1993 he was arrested and detained, suspected of having killed his wife (Y.'s mother) on the same day. On 11 November 1993 an official of the Turku Social Welfare Authority provisionally took Y. into public care in virtue of section 18 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983). Y. was placed in a children's home. The mother's half-brother and half-sister had been heard prior to the decision. On 13 November 1993 the applicant confessed to having killed his wife, referring to his jealousy. He was later found to have been in possession of his full senses at the moment of the crime. Officials of the Basic Welfare Board (perusturvalautakunta, grundtrygghetsnämnden) of Valkeakoski started preparing a proposal for a confirmation of the provisional care order. It did not hear the applicant, although it had been informed of his whereabouts. On 17 November 1993 the Basic Welfare Board upheld the public care of Y. pursuant to sections 16 and 17 of the Child Welfare Act. It noted that the mother was dead and that her father had been detained on suspicion of having murdered her. Other support measures to ensure Y.'s welfare would be insufficient. The public care was expected to be of a long duration. The applicant's access to Y. was prohibited indefinitely and her whereabouts were not disclosed to the applicant. No reasons were given for the prohibition. The Board's decision was notified to the applicant on 24 November 1993 and a social worker briefly explained the contents thereof in English. As the applicant had not been heard prior to the decision, the Board forwarded it ex officio to the County Administrative Court (lääninoikeus, länsrätten) of Häme for its review. At a meeting between a representative of the association Pelastakaa lapset r.y.– Rädda barnen r.f. (“Save The Children”) and the applicant in prison on 20 January 1994 the latter requested that the authorities consider the possibility of placing Y. in his brother's family in Belgium either for the duration of his sentence or permanently, by adopting her. The brother had allegedly consented to such an arrangement. The social authority's case notes of 24 January 1994 included an account of the meeting, as recounted by the representative of Save The Children. According to the notes, the applicant had been informed at the meeting that Y.'s maternal relatives were opposed to her placement outside Finland and that Save The Children was looking for a foster family for her. When inquiring about Y.'s possibility to visit him in prison, the applicant had been informed that the access prohibition would be reconsidered on his release. It transpires from the case notes that a potential foster family had already been contacted by Save The Children. On 18 February 1994 the applicant, represented by his current counsel, appealed belatedly to the County Administrative Court, stating, inter alia, that he had not been properly heard before the Basic Welfare Board's decision, nor legally notified of its contents. In its submissions in reply the Basic Welfare Board stated, inter alia, that the care order had taken into account the wishes of Y.'s mother's relatives, who had wanted to ensure that Y. would continue to receive a Christian education. On 21 February 1994 Y. was placed in a foster family selected by Save The Children. According to the care plan adopted on 22 February 1994, her whereabouts would be concealed from the applicant as long as she remained in public care. At a later stage she could decide for herself whether she wanted to meet him. She would be entitled to meet her maternal half- brother and half-sister, but initially only on neutral premises so as to protect her and the foster parents' privacy and security. The care plan was agreed by regional director (and social worker) A.R. of Save The Children, a director and a social worker of the Basic Welfare Authority as well as the foster parents. The applicant had not been invited to attend. In a decision of 28 February 1994 a leading official of the Basic Welfare Board ordered that the access prohibition should be in force up to Y.'s twelfth birthday (i.e. until 16 April 2004). Having regard to the child's age and state of development, access prior to that date would not maintain a child-parent relationship. Accordingly, Y. had no right to see the applicant until she had reached that age, when she could decide for herself whether she wished to see him. The official of the Board furthermore considered that, in order to protect Y. and the foster family's privacy and security, her whereabouts should not be disclosed to the applicant or her other relatives. The applicant appealed to the Basic Welfare Board. In its decision of 15 April 1994 in the care order proceedings the County Administrative Court noted that the applicant had been detained while the emergency order and the ordinary care order had been issued on 11 November 1993 and 17 November 1993, respectively. The court further noted that the emergency care order would have expired after fourteen days unless replaced by an ordinary care order. Finally, the Board had, of its own motion, referred its decision for review by the County Administrative Court, since the applicant had not been heard. In those circumstances the Board had not proceeded wrongly by not hearing the applicant prior to its order of 17 November 1993. The County Administrative Court accepted, however, that the contents of the ordinary care order had not been sufficiently explained to the applicant, and examined his belated appeal. It nonetheless rejected it without having held an oral hearing, thus confirming the care order and Y.'s foster care. The court furthermore agreed that the access prohibition issued on 17 November 1993 had been incorrect in that it had comprised no reasoning or time-limit. However, in view of the new prohibition issued on 28 February 1994, the court found no reason to pronounce itself further in regard to the initial prohibition. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting an oral hearing. On 27 April 1994 the District Court (käräjäoikeus, tingsrätt) of Turku convicted the applicant of manslaughter and sentenced him to nine years' imprisonment. The conviction and sentence were upheld by the Court of Appeal (hovioikeus, hovrätt) of Turku on 16 September 1994. The applicant served his sentence in the Turku County Prison until October 1996, when he was transferred to the Vilppula Low-Security Prison. Meanwhile, on 18 May 1994, the Basic Welfare Board confirmed the access prohibition issued on 28 February 1994, stating, inter alia, that domestic law did not allow a father to care for his child in prison. The applicant appealed, arguing that he had not been properly heard prior to the decision. In addition, he stated that it had been made without knowledge of current domestic law which did allow a father to care for his child in prison. The Basic Welfare Board explained to the County Administrative Court, inter alia, that it had considered it unnecessary to hear the applicant, since at the time he had been undergoing an examination of his mental state in a mental hospital. On 21 November 1994 the County Administrative Court quashed the Basic Welfare Board's decision and referred the matter back for renewed consideration. The applicant's stay in a mental hospital at the relevant time had not been a valid reason for not hearing him in accordance with section 15 of the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). The court nonetheless rejected his request that the Board should be ordered to pay his legal costs. In a subsequent written submission to the Basic Welfare Board the social welfare worker in the applicant's prison testified to his exemplary conduct and strong attachment to his daughter. Meetings between two would therefore not be contrary to her best interests. Supporting such meetings had been the practice in many similar cases involving a male prisoner and a child without a mother. The applicant's ethnic background should not be allowed to influence the decisions concerning the access question. On 9 February 1995 A.R. of Save The Children interviewed the applicant in prison in regard to the access question. The applicant was assisted by an interpreter. According to the report which A.R. forwarded to the Basic Welfare Board, the applicant had requested to see Y. in prison in the area designated for visits by family members. The applicant had accepted Y.'s public care, her foster parents and the fact that she would be accompanied by them during her visits. The applicant had indicated that he would be able to speak some Finnish with her. He had denied certain allegations made by Y.'s mother's relatives but did not object to meeting them, if they so wished. At the end of the meeting A.R. had informed the applicant that he would receive copies of the relevant documents through his counsel. In her written cover letter to the Board dated 21 February 1995 A.R. of Save The Children urged it to maintain the access prohibition until meetings became a natural matter of consideration in the course of Y.'s development. Meanwhile, on 16 February 1995, the applicant had submitted his written views directly to the Board without the assistance of his counsel. On 22 February 1995 the Basic Welfare Board upheld the access prohibition issued on 28 February 1994. The applicant appealed again, requesting that the prohibition either be quashed or that it be amended so as to end around the time when he was expected to be released on parole, i.e. in 1998. In its decision of 3 March 1995 the Supreme Administrative Court refused the applicant's request for an oral hearing in the care order proceedings. It found that he had not been heard prior to the Basic Welfare Board's order of 17 November 1993. As the Board had referred its order to the County Administrative Court for its review and the applicant had been able to appeal against the order and comment on the Board's submissions to that court, and in light of the evidence on file, there was no reason to quash the Board's or the lower court's decision due to the error in the hearing of the applicant. In its submissions the Basic Welfare Board had maintained that domestic law did not allow a father to care for his child in prison. On 22 June 1995 the County Administrative Court quashed the Basic Welfare Board's decision of 22 February 1995 and referred the matter back for renewed consideration. It did not object to the access prohibition as such, considering that contacts between Y. and the applicant would obviously endanger Y.'s development. It had therefore also been necessary to conceal Y.'s whereabouts from the applicant. The court considered, however, that sufficient reasons had not been shown to justify that the prohibition should last until Y. would reach the age of twelve. It declined to pronounce itself in the first instance on the appropriate duration of the access prohibition and the secrecy order regarding Y.'s whereabouts. The applicant's request that the Board be ordered to pay his legal costs was rejected. In an opinion of 8 August 1995 Dr E.V., a senior physician specialising in child psychiatry, considered Y.'s best interests to warrant an access prohibition lasting at least until her twelfth birthday. Dr E.V., who gave his opinion in his capacity as Save The Children's consulting child psychiatrist, stated in extenso as follows: (translation from Finnish) “I have studied Save The Children's case file. On that basis, without having met the child or others involved in the matter, but having discussed it with the employee of Save The Children, I consider that the biological father's request [for meetings to take place] is founded on various misunderstandings. He is of the view that the Board's way of proceeding violates both parties' right to respect for their family life, and that the starting point in the decision-making should have been to re-establish [that] family on [his] release from prison. This, however, would be contrary to both law and morality. The morality of child welfare is based on the same principle as the Child Welfare Act, i.e. on the intention to ensure that the best interests of the child are respected, as opposed to the interests of the parents when [the two sets of interests] are conflicting. It is clearly in the best interests of [Y.] that she can establish a normal and happy family [life] in [her] current foster family and that she may grow up to be a healthy adult. Meetings with her biological father are possible only in so far as they are not contrary to [her] best interests. When the law speaks of the child's right to meet his or her parents, this refers precisely to a right belonging to the child, and not to a right of a parent to meet his or her child irrespective of the damage or danger which such meetings produce to the child. The Board has proposed to fix at twelve years the age when [Y.] and the applicant might begin to meet. The Board appears to base itself on the principle that a twelve-year old child must be heard before a decision in a matter concerning him or her is taken. From the point of view of child psychiatry I consider that [this] age-limit should not be applied categorically. [The age-limit] does not signify that from then onwards the child will decide on his or her own in matters of this kind, but that the decisions are made after hearing the child. This means that the foster parents or the Social Welfare Board responsible for the child may arrive at a decision which is contrary to the opinion of the child, if they consider that this is in the child's best interests. This is a very sensible approach, since a twelve-year old cannot be presumed to make absolutely sensible decisions. Ideally, [Y.'s] foster parents, who have the most evident and strongest emotional tie to [her], should make all decisions concerning her, since they are best equipped to understand what [she] really wishes to do and what is in her best interests. [Y.] should be allowed to make decisions completely on her own only when has reached the age of majority, i.e. at the age of 18. This is also sensible from a psychological point of view: it is only when [she] will have reached the age of early adulthood that her development will not be jeopardised by non-preferable relationships. I would also like to stress that the worst damage done to children nowadays stems from removing them from families to whom they have become attached and whose psychological members they are, with a view to arbitrarily placing them back for instance with their biological parents or parent, with whom the child has no relationship. In my view [the authorities] should urgently proceed to having [Y.] adopted by the foster parents, if they consent to this. The fact that the child is not legally a member of the family to whom [she] belongs emotionally is damaging to the child. From the point of view of child psychiatry it is therefore justified that meetings between [Y.] and the applicant are not organised until she turns twelve and thereafter only if she clearly expresses a wish to meet him and provided that the adults who love her consider such meetings useful to her. The father should understand that a child is not an object which he can own, but a living human being, who is entitled to live his or her own life according to his or her own emotions.” Dr E.V.'s opinion was not served on the applicant prior to the decision of the Basic Welfare Board of Valkeakoski of 27 September 1995, whereby the access prohibition was again maintained until 2004. The applicant appealed and requested an oral hearing. He objected, inter alia, to not having been heard in respect of Dr E.V.'s opinion and not knowing what precise material it had been based on. The applicant stated his wish to examine Dr E.V. as witness and stated that he might also call a witness of his own choosing. On 15 April 1996 the County Administrative Court held an oral hearing at which Dr E.V. was heard as witness. The applicant had not called any further witness. In his further submissions of 25 April 1996 to the County Administrative Court the applicant stressed that he could not afford calling expert witnesses to counter Dr E.V.'s views. He therefore adduced copies of documents from a case in which neither the Helsinki Social Authority nor the experts consulted had even suggested an access prohibition in respect of a child, whose Finnish father had killed the mother. That child had not been placed in public care, being cared for by her maternal grandmother. In its decision of 13 May 1996 the County Administrative Court rejected the applicant's appeal. The court now found that the duration of the access prohibition, as maintained by the Basic Welfare Board, was justified. The applicant received the decision on 6 May 1996. No further appeal lay open. In February 1998 the Police of the Valkeakoski District proposed that the applicant be expelled to Pakistan on his release on parole, and banned from returning to Finland. The applicant opposed the proposals on the grounds that such a decision would sever his family ties to Y., in violation of Article 8 of the Convention. On 27 April 1998 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) refused the applicant's request for a further residence permit. On 28 April 1998 it ordered his expulsion to Pakistan and banned him from re-entering Finland. The Directorate noted that his only family tie to Finland consisted of Y., whom he had been banned from meeting. Given the specific features of their family relationship, the heinous crime which the applicant had committed, thereby displaying his danger to others, the interference with his right to respect for his family life was justified under Article 8 § 2 of the Convention. The re-entry ban could be reconsidered if, for instance, he later obtained a right to see Y. Under a Nordic treaty this ban extends to the other Nordic countries. At a meeting between A.R., the applicant and the foster parents on 29 April 1998 the applicant was told that various experts had advised against enabling him to meet Y. even once before leaving Finland. Even observing her without her knowledge would have been contrary to her best interests. It transpired from the meeting that the foster parents would continue to forward to Y. the applicant's letters and gifts as well as to keep him informed of her development. In May 1998 the applicant was released on parole and left Finland. On 10 September 1999 the Supreme Administrative Court upheld the expulsion order. According to various opinions of January 1998 issued by the prison governor, prison psychologist and other staff, the applicant's conduct in prison had been exemplary. The Legal Aid Office (oikeusauputoimisto, rättshjälpsbyrån) of Valkeakoski awarded the applicant legal aid both for the purposes of the domestic court proceedings and for bringing his application under the Convention. This award covered counsel's fees but not the costs incurred. B. Relevant domestic law According to section 16 of the Child Welfare Act, the Social Welfare Board shall 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 abuse of intoxicants, 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) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2). If a child is in imminent danger or otherwise in need of an immediate care order and foster care, the Social Welfare Board may take him or her into care without submitting the decision to the County Administrative Court for prior approval (section 18). An emergency care order shall expire within fourteen days of the decision, unless referred for reconsideration under section 17 of the Child Welfare Act. An ordinary care order pursuant to section 17 must be issued within thirty days, or on special grounds within sixty days, of the emergency order. Both ordinary and emergency care orders may be appealed to the administrative courts. The child's custodians, biological parents and de facto carers shall be heard in respect of a proposal to issue or revoke a public care order or to place a child outside his or her original home. They shall further be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act. Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties. If an ordinary care order has been issued pursuant to section 17 of the Child Welfare Act without the prior hearing of a party, the social welfare board shall forward it to the County Administrative Court within thirty days, unless the party in question could not be located with reasonable means or the child has no contact with that party, in which case a hearing would not be justified (section 17, subsection 2). If a party appeals against an order issued under section 17, the County Administrative Court shall also review it (section 36). According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child's contacts with his or her parents and other close persons (subsection 2). According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983), the Social Welfare Board or the director of a children's home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the children's home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction. The care plan to be drawn up in respect of a child in public care shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child's care and upbringing and for the child's parents; (c) how the child's right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved. Further provisions governing child welfare measures are outlined in the Court's judgment of 27 April 2000 in the case of L. v. Finland (no. 25651/94, 27.4.2000, §§ 53-97). According to the Act on the Enforcement of Punishments (rangaistusten täytäntöönpanosta annettu laki, lag om verkställighet av fängelsestraff 39/1889), a prisoner may be allowed to care for his or her young child in prison, provided such care would be in the best interests of the child and the prisoner wishes to assume the care (section 1b, subsection 4, as added by Act no. 555/1990). This provision replaced the former section 1c which had only referred to mothers. Up to 1 May 1995 section 4, subsection 4, of the Act on Pre-Trial Detention (tutkintavankeudesta annettu laki, lag om rannsaknings-fängelse 615/1974), likewise applied only to mothers in detention, whereas the new subsection 2 applies equally to detainees of both genders. According to the Act on County Administrative Courts (lääninoikeuslaki, lag om länsrätterna 1021/1974), as in force at the relevant time, the costs and economic losses incurred by an expert or other witness shall be reimbursed by the State, provided he or she was summoned by the court itself (section 19, as in force up to the entry into force of Act no. 588/1996). According to the Act on Cost-Free Proceedings (laki maksuttomasta oikeudenkäynnistä, lag om fri rättegång 87/1973), the costs and losses incurred to a witness called by a party who has been granted cost-free proceedings shall be covered by the State (section 8). The said Act excludes from its scope proceedings concerning, for instance, an access prohibition issued on the basis of the Child Welfare Act.