CASE OF NUUTINEN v. FINLAND
Violation of Art. 6-1;No violation of Art. 8;Not necessary to examine other complaints under Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Elisabeth Palm;Gaukur Jörundsson;R. Pekkanen
7. In 1987 the applicant was convicted of having caused danger to others and sentenced to one year's imprisonment. In 1990 the Kuopio City Court (raastuvanoikeus, rådstuvurätten) convicted him of attempted manslaughter and sentenced him to three years' imprisonment. The court had regard to an opinion on his mental state submitted by the Unit for Forensic Psychiatry of the Kuopio County Prison on 29 June 1990 as well as to a related opinion of the National Medico-Legal Board (lääkintöhallitus, medicinalstyrelsen) of 11 July 1990. The Board had concluded that the applicant had committed the offence while not fully in control of his faculties but that he was not in need of psychiatric care. 8. On 21 January 1992 the Kuopio City Court convicted the applicant of having threatened and assaulted his then girlfriend H and of having subjected her to coercion. Those offences were found to have been committed while he was not fully in control of himself during H's pregnancy in October 1991, when their relationship had been ending. The applicant was sentenced to three months' imprisonment. 9. In March 1992 H gave birth to a daughter, I. The two subsequently moved from Kuopio to Helsinki. In November 1992 the applicant was released from prison and recognised I as his child. In the light of H's objections a judge of the Kuopio City Court refused to confirm the recognition. 10. On 30 November 1992 the Population Registration Authority (väestörekisterikeskus, befolkningsregistercentralen) granted a request by H that her and I's address would not be disclosed for marketing, polling or addressing purposes. 11. In an action of 21 September 1993 the applicant requested that his paternity in respect of I be confirmed, that custody of her be shared and that she be granted a right to see him every second weekend from Friday to Sunday night. In addition, the applicant requested access arrangements enabling I to spend part of the annual holidays with him. The Kuopio City Court's summons was served on H on 13 October 1993, the first hearing having been fixed for 14 January 1994. 12. Before the City Court H contested the paternity claim and objected to joint custody and to any form of access between I and the applicant. The hearing was adjourned until 6 May 1994, the City Court having ordered the parties to deliver blood samples by 8 April 1994 on pain of an administrative fine (uhkasakko, vite) in the amount of 1,000 Finnish marks (FIM). H was also under an obligation to have samples delivered by I. 13. In April 1994 H married another man. 14. Taking note of H's failure to deliver blood samples, the City Court, on 6 May 1994, adjourned the proceedings until 9 September 1994. H was ordered to produce the samples by 12 August 1994 on pain of a further administrative fine in the amount of FIM 2,000. At its hearing on 9 September 1994 the City Court adjourned the proceedings until 16 December 1994, having decided to seek opinions on the question of access both from the Kuopio Social Welfare Board (in respect of the applicant) and from the Helsinki Social Welfare Board (in respect of H and I). 15. On 2 December 1994 the Helsinki Social Welfare Board requested that the time-limit for the submission of its opinion be extended until 31 May 1995 so as to enable it to carry out a thorough investigation. The City Court then requested the Board to provide a preliminary opinion by 14 December 1994. 16. In its opinion of 12 December 1994 the Kuopio Social Welfare Board noted that the applicant did not wish to be in contact with H and her new husband and was willing to accept that the authorities act as intermediaries during an initial period of access. The applicant further considered that the initial meetings should take place in the city or town where his daughter was resident. 17. In its preliminary opinion of 14 December 1994 the Helsinki Social Welfare Board suggested that the examination of the access question be adjourned until the end of May 1995 so that a solution convenient to the child could be found in these exceptional circumstances. The Board alluded to H's strong fear of the applicant and to her new pregnancy expected to reach its term in December 1994. 18. On 16 December 1994 the Kuopio District Court (käräjäoikeus, tingsrätten; the former City Court) confirmed the applicant's paternity in respect of I (which was no longer disputed by H). On an interim basis, right of access in respect of the child was granted for two hours on the last Saturday of March, April and May 1995. The meetings were to take place in Helsinki on the premises of an association in this field. The final decision in respect of custody and access was adjourned until 2 June 1995. 19. In a written opinion of 2 March 1995 drawn up for the purposes of the access proceedings Dr V, a child and youth psychiatrist, stated as follows: “[H], [I], [H's husband] and [their son] have paid a visit to my practice. [H] has shown me a number of documents relating to certain court proceedings; in part to the [access proceedings] and in part to [the applicant's assault on H]. It transpires from the documents that the intention is to organise unsupervised meetings between [I] and [the applicant]. On the basis of the above material I must, as an expert, oppose the meetings in question until further notice. Both supervised and, in particular, unsupervised meetings would amount to a flagrant violation of the best interests of the child and would subject [I] at least to a serious mental and possibly also physical danger and could damage her mental development to an extent which would be difficult to treat. This opinion is of a preliminary character because I am currently examining the matter [more] thoroughly. The examination will last a few months, following which I will be prepared to submit a more detailed and more reasoned opinion. ...” 20. In a letter of 22 March 1995 the Helsinki Social Welfare Authority informed the applicant that the meeting between him and the child fixed for 25 March 1995 would not take place. H had informed the Social Welfare Authority that she had no intention of bringing I to the meeting-place, the reason being that she feared that the child might be subjected to “something harmful”. The Social Welfare Authority's attempts to convince H to comply with the court order had been unsuccessful. 21. On 18 April 1995 the applicant lodged a request for enforcement with the County Administrative Board (lääninhallitus, länsstyrelsen) of Uusimaa, acting as Chief Bailiff (ulosotonhaltija, överexekutor). He referred to H's failure to bring I to the meeting fixed for March. Moreover, a leading official of the Helsinki Social Welfare Authority had informed the applicant that H was keeping his paternity secret from the child. 22. In a letter of 21 April 1995 the Helsinki Social Welfare Authority informed the applicant that H would not bring the child to the meeting fixed for April either. This letter had been preceded by a social welfare official's telephone calls to the applicant and H. The official had suggested to H that a plain-clothed police officer could attend the meeting. H had refused, indicating a wish to attend the meetings herself. When informed that this wish could be accommodated, H had retracted her consent, at least in respect of the April meeting. When requested to state her position in respect of the May meeting, H had thought her answer would remain negative. 23. On 18 May 1995 the Helsinki Social Welfare Authority informed the applicant that H would not bring the child to the May meeting either. 24. On 22 May 1995 the applicant repeated his enforcement request, referring to H's failure to bring I to the April meeting. 25. On the same day H requested that the Helsinki Registry Office (maistraatti, magistraten) order her and the child's address to be kept secret in accordance with the 1993 Population Data Act (väestötietolaki, befolkningsdatalag, no. 507/1993). H referred to the applicant's conviction in 1992 and suspected that he was threatening the lives of her and the child. On 24 May 1995 the Registry Office ordered that the address of H and I should be kept secret for two years. This order was later extended. 26. On 29 May 1995 O.A. and R.K., Office Director and Senior Social Welfare Officer of the Family Advice Centre of the Helsinki Social Welfare Authority, submitted the final opinion to the Kuopio District Court on the question of access. They noted H's strong fear and suspicions in respect of the applicant and his intentions. H seemed to fear that the meetings between the applicant and his daughter would cause physical or psychological harm to the child or her new family. In the explosive situation at hand it would be difficult to organise the visits in an atmosphere which could be beneficial to the child. In the long term visits were nevertheless to be aimed at, as it was in the child's best interests to meet her father in secure conditions and to be able to form her own opinion of his good and bad features. Regrettably, it had proved impossible to have any of the interim access arrangements enforced. This had significantly prevented the officials from forming their opinion of the applicant's abilities to relate to his child. 27. A summary by the Family Advice Centre dated 18 November 1996 indicated that, prior to drawing up the opinion of 29 May 1995, officials had met H three times together with the child and once also together with the grandmother. The officials had intended to request investigations by the Family Advice Clinic (perheneuvola, familjerådgivningen) but H had already contacted a private child psychiatrist (Dr V), on whose preliminary opinion she had relied early on, refusing to comply with the interim access arrangements. She had categorically refused to accept any such access, even when it had been proposed to organise the meetings at the Family Advice Centre in the presence of a police officer. She had feared for her own and the child's safety and had considered that access would not be in the child's best interests. She had not wanted any information about the child to be given to the applicant. She had referred to his criminal record, the 1990 opinion on his mental health and the threats he had addressed to her family. The social welfare official had concluded that the parents' relationship was negative and filled with hatred. The applicant had been contacted by telephone and letter as he had found it unnecessary to attend a meeting with the social welfare officials. Occasionally, he had been very aggressive and threatening towards the officials. The Family Advice Centre's summary concluded that in the light of the information available at the time the Helsinki Social Welfare Board had been unable to formulate any clear proposal to the Kuopio District Court in respect of access rights. 28. On 2 June 1995 the District Court adjourned the access proceedings until 15 June 1995 at the request of H. In its decision of the latter date the District Court afforded custody of the child solely to H and granted the child the right to meet with the applicant for two hours on the last Saturday of every other month. The District Court furthermore ordered H to pay the administrative fine imposed on 14 January 1994. The District Court had at its disposal Dr V's final opinion of 17 May 1995 in which he had stated, inter alia, as follows: “... I have met [I] twice and [H], her husband and second child on three occasions. ... [The applicant] refused to see me ... but spoke to me over the telephone. ... ... [I] is strongly attached to her mother and her stepfather, whom she wishes to call her father. The conversation with [the applicant] was rather original. He was ... rather agitated and paranoid and unable to explain why. He refused to cooperate, although I explained that this would have been very important and in the interests of his child. Instead he threatened me with ... court proceedings and negative publicity; ... At the beginning of the conversation he lied to me, saying that the person answering the telephone was a neighbour. His paranoia was illustrated by accusations against everyone; everyone seemed to be wrong and to be persecuting him; only he was right. This fits well with the impression one gets from the documents, namely that [he] very easily becomes aggressive and that his ability to control his impulses is very poor. These factors combined with his paranoid attitude and feeling of always being right makes him very dangerous as regards [I]. ... I consider it very likely that the planned meetings between [I] and [the applicant] will seriously damage at least [I's] mental development. They might also endanger her physical health. I continue to be of the opinion that [H] ... should not agree to any such experiments ... at the expense of the child's future. [The applicant] must first show that he is able to create a secure and good relationship towards [H]; only subsequently can meetings of this kind be contemplated. ...” 29. As regards the question of access the Kuopio District Court found as follows: “According to the opinion of the ... Helsinki Social Welfare Authority, [I] is a well-balanced child with a trusting attitude towards adults. Witness [V] has stated in his opinion that the tests carried out by [M.H.], Chief Psychologist, and [V's own] psychological interviews have shown that she is well cared for and mentally balanced and that she has developed and continues to develop well ... According to [V], [I] is a healthy and happy child. [He] is of the opinion that [the applicant] cannot be granted access rights ..., since [H] is afraid of meeting [him] and [I] can sense that fear on the part of her custodian. Bearing in mind that the three-year-old [I] is a well-balanced child, who is behaving in a manner which is adequate for her age, short meetings between her and her biological father and other strangers cannot be considered harmful to her, provided [her] custodian is able to support her mentally in connection with the meetings. There is thus no reason to prohibit access ... completely. ... For these reasons, ... the District Court finds that [I] is entitled to meet her father and to stay in contact with him. ...” 30. The District Court specified that the meetings between the applicant and I were to take place at a children's centre in Kauniainen (near Helsinki), where the meetings could also be supervised. Both parties appealed against the judgment, the applicant seeking more extended access and H opposing access altogether. 31. On 4 July 1995 the County Administrative Board appointed an official of the Helsinki Social Welfare Authority to act as conciliator in the enforcement proceedings. She was ordered to submit her report by 1 August 1995. H's lawyer informed the conciliator that H could not be reached in July 1995, since she was on holiday. 32. On 19 July 1995 the conciliator requested to be replaced by another official, the applicant having objected to her appointment as she had been involved in drawing up the Helsinki Social Welfare Authority's opinion to the Kuopio District Court. 33. On 21 July 1995 the County Administrative Board appointed the suggested official to act as conciliator and ordered her to submit her report by 15 August 1995. H informed the conciliator that she wished the matter to be handled by her lawyer, who would be on holiday until 15 August 1995. 34. On 10 August 1995 the applicant repeated his enforcement request and referred to H's failure to bring I to the July meeting. 35. In her report of 21 August 1995 the conciliator found that conciliation had to be excluded, given the complete deadlock. H was categorically opposed to any access between I and the applicant and had refused even to discuss the matter in person with the conciliator. The applicant, for his part, was approaching the matter so aggressively and expressing such threats that it rendered any dialogue difficult. Even his telephone calls to the conciliator had been impertinent and had contained threats. 36. Heard in writing by the County Administrative Board, H referred, inter alia, to the applicant's criminal convictions and prison sentences as well as to the views of Dr V. In his rejoinder the applicant essentially considered that such material was irrelevant for the purposes of the enforcement proceedings. 37. On 19 September 1995 the County Administrative Board rejected the applicant's request for enforcement of the initial access arrangements, noting that the District Court's interim order of 16 December 1994 had been replaced by its final decision of 15 June 1995. The applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten). 38. On 29 September 1995 the Court of Appeal of Eastern Finland, in response to the parties' appeal in the main proceedings concerning custody and access, made some minor changes in respect of the implementation of the access rights. Both parties sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). 39. On 7, 8 and 9 December 1995 the applicant repeated his enforcement request, referring to H's failure to bring I to the September and November meetings. 40. On 19 December 1995 the Helsinki Court of Appeal, acting as appellate body in the enforcement proceedings, quashed the County Administrative Board's decision of 19 September 1995 and ordered it to reconsider the applicant's request as comprising a request for enforcement also of the access arrangements ordered on 15 June 1995. 41. The County Administrative Board joined the remitted request and the applicant's fresh request for enforcement and again heard H in writing. The County Administrative Board summarised her statement, inter alia, as follows: “... [The applicant's] intention has clearly been to harass [H] by requesting the imposition of administrative fines. The imposition of fines would not be in the best interests of the child, since [H's] financial possibility of caring [for I] would thereby be significantly jeopardised. The courts' finding that the biological father's rights are so strong that they must be given more weight than the experts' views on the best interests of the child is astonishing. Both the social welfare officers of the City of Helsinki and child psychiatrist [V] have been of the opinion that [access between I and the applicant] would not at this stage be in the best interests of the child.” 42. On 13 February 1996 the County Administrative Board ordered H, on pain of an administrative fine of FIM 5,000, to comply with the access arrangements ordered on 15 June 1995 and upheld on 29 September 1995. The County Administrative Board found that H had not put forward any acceptable reason for her refusal to bring I to the meetings fixed for July, September and November 1995. Moreover, the Supreme Court had not suspended the enforcement of the decision of 29 September 1995 of the Court of Appeal of Eastern Finland. Finally, the expert views to which H had referred, allegedly showing that enforcement would not be in the child's best interests, had already been known to the first-instance court in the civil proceedings regarding access and custody. That material could therefore not be invoked at the enforcement stage. 43. On 7 March 1996 the Supreme Court refused leave to appeal in the main proceedings concerning custody and access. 44. On 7 May 1996 the Deputy Chancellor of Justice (apulaisoikeuskansleri, justitiekanslersadjointen) found that the Kuopio District Court had not postponed the first set of the main proceedings unnecessarily, given the failure by H to produce the necessary blood samples and the District Court's requests for opinions from the social authorities. 45. In response to the applicant's further request for enforcement the County Administrative Board, on 14 October 1996, ordered H to pay the fine of FIM 5,000 imposed in February 1996 and directed her to comply with the access arrangements on pain of a further fine of FIM 8,000. The County Administrative Board noted that the address of the centre where the meetings were to take place had changed. However, even after H had been informed of the new address (on 4 June 1996) she had refused to comply with the arrangements. She could also have verified the possible supervision of the meetings by contacting the centre directly. 46. In December 1996 the applicant brought fresh proceedings before the Helsinki District Court, seeking to obtain shared custody of I and extended access rights. H objected and sought to have the access rights revoked. She invoked her and her family's right to respect for their private and family life within the meaning of Article 8 of the Convention. She had now told her daughter that, being her biological father, the applicant wished to see her. The daughter, however, had allegedly not been interested in meeting him. H furthermore referred the applicant to her parents' address in Kuopio, where he could send presents intended for his daughter without having to know her whereabouts. 47. On 11 December 1996 Chief Inspector P.-L.H. of the Ministry for Social Welfare and Health Affairs requested the Deputy Senior Physician of the Kuopio Social Welfare and Health Centre to forward copies of the applicant's patient records. Reference was made to the drafting of the Ministry's opinion to the Ministry for Foreign Affairs in respect of his application to the Commission. According to P.-L.H., it had transpired from the documents already obtained that the centre in question was in the possession of records pertaining to the applicant's mental health which were of major importance to the Government's observations to the Commission. The request was based on sections 56 and 58 of the 1982 Social Welfare Act (sosiaalihuoltolaki, socialvårdslagen, no. 710/1982) and section 13, subsection 3(1), of the 1992 Act on the Status and Rights of Patients (laki potilaan asemasta ja oikeuksista, lagen om patientens ställning och rättigheter, no. 785/1992). Copies of the requested records were subsequently disclosed to the Ministry. 48. As from 1 December 1996 a request for enforcement of access rights was to be lodged with a district court which could also order that a child be escorted to meetings for enforcement purposes. In January 1997 the applicant requested the Helsinki District Court to order such enforcement. 49. By letter of 23 January 1997 Chief Inspector P.-L.H. forwarded to the Ministry for Foreign Affairs the request of counsel for H to obtain copies of the applicant's submissions to the Commission and the Government's observations in reply. H had argued that this material would be of relevance both to the enforcement proceedings and the second set of custody and access proceedings which the applicant had just initiated. P.L.H. stated, with reference to the material obtained by the Ministry for Social and Health Affairs, that H would have good reasons to propose that the District Court order a fresh conciliation and obtain a new opinion from the Social Welfare Board. 50. On 11 February 1997 the Helsinki District Court appointed two conciliators of the Western Social Welfare Centre of Helsinki (R.C., Senior Social Welfare Officer, and E.B., a psychologist of the Family Advice Clinic) and ordered them to submit an opinion by 4 March 1997. The conciliators met separately with the parents and, as suggested by H, also planned on interviewing the child. 51. On 12 February 1997 the Helsinki Court of Appeal upheld the County Administrative Board's decision of 14 October 1996 in the first set of enforcement proceedings. 52. In their report of 9 March 1997 the conciliators noted, inter alia, that in spite of her argument that it was important to ascertain the child's own opinion H had refused to bring the child to a meeting with them. The applicant, for his part, had demonstrated in the course of the conciliation that he could become very aggressive. He had stressed his own intelligence and good health. In his view his current situation was simply a result of the protracted access proceedings. On this point the conciliators noted, however, that already in 1990 he had been diagnosed as suffering from a mental disturbance. In his opinion the conciliators were always siding with H and the conciliation was only a means of prolonging the proceedings. He did not trust the Helsinki Social Welfare Authority or the judicial organs. He had threatened court proceedings and publicity. The conciliators continued as follows: “It is of course natural that [the applicant] is frustrated ..., having tried in vain to meet his child. However, this does not ... explain such a strong aggressive behaviour. [The applicant's] suspicions also showed in that he recorded all telephone conversations and [our] meeting. ... [The applicant] emphasised the child's right to know who her father is and to meet him. However, the fact that [H] has refused to comply with the access arrangements does not change the fact that [the applicant] is a complete stranger to the child. [The applicant's] lack of understanding is reflected, for instance, in his refusal to accept that the child could bring along a support person to the meetings, his reason being that he himself has to come to the meetings alone. ...” 53. The conciliators concluded that it would be in I's best interests that the meetings with the applicant be organised after the child had been properly prepared for them and would feel calm and safe. Otherwise the child would be under a duty to meet the applicant instead of enjoying a right to this effect. 54. Apart from interviewing the applicant and H the conciliators had also heard one of the previous conciliators as well as Chief Inspector P.L.H., the mother of H as well as the supervisor at the centre where I's meetings with the applicant should have taken place. With reference to Chief Inspector P.-L.H.'s opinion that the conditions for the meetings should be revised, the conciliators attached a secret memorandum containing information obtained by the Ministry for Social and Health Affairs which had not been at the courts' disposal earlier. According to the memorandum, Chief Inspector P-L.H. had obtained, while preparing the Government's observations on the application before the Commission, various patient records indicating that the applicant had been suffering from mental problems for years. When the conciliators had raised this point with the applicant, he had become very aggressive, contending that he had no such problems. The access dispute had begun to affect his nerves and his doctor had rightly been concerned about that, not about any mental problems. The applicant had again threatened court proceedings and publicity. He had refused even to consider psychiatric care or therapy. His language had been “unbelievably inappropriate”. 55. The District Court heard the applicant, H, two witnesses on the applicant's behalf and conciliator R.C. The applicant contended that he had not behaved violently in recent years. Nor was he in need of therapy, care or medication against his alleged mental problems. The witnesses on his behalf testified along the same lines. Having been unable to interview the child, conciliator R.C. found herself unable to state any view as to whether the meetings would be in the child's best interest. 56. In its decision of 7 April 1997 the District Court found that the testimonies by the applicant's witnesses could not refute the medical indications relating to his mental state. Those indications did not, however, show that enforcement of the access arrangements would be contrary to the interests of the child, bearing in mind the limited access and the meeting place. The court was composed of one presiding professional judge and three lay members. 57. The District Court dismissed the applicant's request that the child be brought to the meetings. Having regard to the attitude of H, the District Court found it most likely, however, that the court-ordered access would not take place despite any changes in the arrangements. The fact that the child had never met the applicant could therefore be seen as a weighty reason for ordering the child to be brought. On the other hand, such a measure could not be the right way for the child to get to know the applicant. Instead the child was to be given a possibility to get to know him gradually in conditions where she would feel that this would happen on a voluntary basis. The District Court therefore concluded that there were no weighty reasons militating in favour of escorting the child to meetings and ordered that a professional supervisor as well as H and/or another person close to the child should attend the child's meetings with the applicant for six months. The applicant had agreed to those changes. The District Court ordered H to comply with the modified arrangements on pain of a further administrative fine, this time automatically staggered in view of the special reasons at hand. The amount of the fine was FIM 10,000 at the outset, to be increased by FIM 2,000 for each of the three forthcoming meetings between I and the applicant with which H would refuse to comply (in May, July and September 1998). 58. The District Court furthermore ordered that the applicant could not bring other persons with him to the meetings. Neither could he record the meetings on audiotape, let alone film and/or photograph the other persons attending the meetings, without their consent. In order to keep I's whereabouts secret from the applicant, she and the accompanying persons would arrive at the meeting place ten minutes after the applicant and leave ten minutes before him. 59. The District Court finally waived the administrative fine imposed on H on 14 October 1996. It noted that, whereas the Kuopio District Court's decision of 15 June 1995 could have given the impression that the meetings would be supervised, the centre where they were to be organised had informed H that the meetings would not be supervised without an explicit court order to that effect. In these circumstances H had had reason to suspect that enforcement would not be in the child's best interests. Her refusal to bring I to those meetings had therefore been acceptable. 60. The District Court's decision was upheld by the Helsinki Court of Appeal on 14 August 1997 and leave to appeal was refused by the Supreme Court on 30 December 1997. 61. Meanwhile, at a preparatory hearing on 23 April 1997 the Helsinki District Court decided to adjourn the second set of the custody and access proceedings pending receipt of fresh opinions from the social welfare boards of Helsinki and Kuopio by 30 October 1997. It found no reason to amend or revoke the access rights on an interim basis. 62. In its opinion of 2 September 1997 the Kuopio Social Welfare and Health Board stated, inter alia, as follows: “... At [our] meeting [the applicant] stated that his life situation had improved and that things were going well. He was unwilling to provide any further information to [the social welfare officers], stating that he would inform the court directly of his conditions. [The applicant] called on 14 August 1997 to say he was moving away from Kuopio ... He refused to indicate his new place of residence. In the light of the foregoing the Kuopio Social Welfare and Health Board is unable to put forward a recommendation concerning access, since there is no adequate information as to the conditions of the applicant. ...” 63. The Helsinki Social Welfare Authority was granted an extension until 31 December 1997 for the submission of its opinion. The opinion of that date stated, inter alia, as follows: “[H] was interviewed at the Family Office on 11 July 1997 and briefly on 13 August 1997. She cancelled the [five] appointments reserved for her [between July and December 1997] ... ... The child has not been interviewed. [H] refused to bring [I] to the Family Office. Nor did she accept that [social welfare] officers pay a visit to her home, where the child could have been interviewed in familiar surroundings. [H] wishes to keep her family (her husband and children) outside the access dispute. ... H objects to any meetings between I and [the applicant]. In her opinion [the applicant] has nothing positive to give to the child. On the contrary, she fears that [he] will frighten [I] with his uncontrolled behaviour. She considers [the applicant] to be mentally unstable and fears physical violence on his part. ... H will not permit [the applicant] to see [I] until [the child] is ready for it and expresses a wish to that effect. If the child is ordered to be brought, [H] will leave home with the child. ... The child itself should have the right to decide whether or not it wishes to see its father. ... ... The officers in charge of this investigation have not met with [the applicant]. In telephone conversations his behaviour has been inappropriate and threatening towards the officers of the Family Advice Clinic. He has behaved in the same manner towards the conciliators of the ... Social Welfare Authority. In the course of the investigation a meeting between [I] and her father could not be organised. Such a meeting might have produced valuable information with a view to assessing the success of future meetings. ... On the basis of the information now collected it is not possible to assess at what age the meetings could be successful with regard to the best interests of the child. The circumstances would at any rate have to be very secure. ... In her early teens [I] will herself be ready to decide ... on possible meetings with her father. ...” 64. In their opinion of 19 December 1997 (attached to the Helsinki Social Welfare Authority's opinion) psychiatrists M.L. and O.H. of the Family Advice Clinic of the Southern Social Welfare Centre stated, inter alia, the following: “... We met I together with her mother on 28 October 1997 and the mother alone on 29 September 1997. We offered three different appointments to [the applicant] but he refused to attend. ... We have not met the child separately and have not conducted any psychological examination, considering that this would not shed any further light on the matter. The investigation is incomplete, since in respect of the father it was limited to telephone calls and letters received from him. It was not possible to arrange a meeting between the ... father and the daughter or a ... meeting between the mother, the daughter and the father, since the mother did not agree to such a meeting. [The applicant] could not agree on a date for a meeting. At first he doubted whether he would be able to attend the meetings due to his studies and the long distance [between Helsinki and Rovaniemi]. Later he stated that he would not attend the meetings unless his daughter had been interviewed at [the Clinic] before him. When we offered ... to meet him after [I]'s visit ..., he refused, requiring that we arrange a meeting between him and [I]. ... Finally, [he] noted that under domestic law it was for the authorities of his place of residence to provide an opinion on his conditions. During the telephone conversations [the applicant] ... occasionally used inappropriate and aggressive language towards us. It was not possible to have a dialogue with him. [His behaviour] did not reflect any real understanding of the world of a five-year-old girl or of the feelings and reactions which she could be facing if she met him in the current extremely tense conditions. ... A five-year-old child's perception of the world is still [that it is] identical to that of its parents ... Accordingly, even if [H and I's stepfather] were to support [I] in her meetings with her biological father, [the] internal fears and resistance she would sense in her [de facto] parents would place her in a situation of anxiety and contradiction. Subjecting the child to the very difficult disputes between its biological parents could endanger her normal mental development. ... ... It would be very important for [I] that the legal battle between her biological parents cease. ...” 65. The applicant moved to Rovaniemi towards the end of 1997. In December 1997 he brought further enforcement proceedings before the Helsinki District Court, again referring to the exceptional circumstances which in his view required that the child be brought to the meetings. A preparatory hearing was held on 2 February 1998, by which time H and I had apparently moved to Oulu. 66. On 3 March 1998 the Helsinki District Court again dismissed the applicant's demand that the child be brought to the meetings. Neither the presiding judge nor any of the three lay members had examined the previous enforcement request decided on 7 April 1997. The District Court had again heard the applicant and H as well as psychiatrist M.L. of the Family Advice Clinic and also based itself on the Helsinki Social Welfare Authority's opinions of 29 May 1995 and 31 December 1997, the opinion of the Family Advice Centre of 19 December 1997 and the Kuopio Social Welfare and Health Board's opinion of 2 September 1997. 67. The District Court further ordered H to pay the administrative fines imposed on 7 April 1997 in the amount of FIM 16,000. She was also ordered to comply with the access arrangements on pain of a further automatically staggered fine. Access was now to take place in Oulu. The amount of the fine now imposed was FIM 20,000 at the outset, to be increased by FIM 6,000 for each of the three forthcoming meetings between I and the applicant which H would refuse to respect (in March, May and July 1998). Both parties appealed against the decision. 68. On 20 April 1998 the Helsinki District Court considered the applicant's fresh request for shared custody and extended access rights. It decided to hear him, H, two witnesses on the applicant's behalf (S.H. and K.P.) and four on behalf of H (Dr V, Dr O.H., M.H. and M.L.). H was to be heard in the applicant's absence, as her fear of the applicant might prevent her from supplying all the relevant information. The District Court dismissed a request by H that the applicant's aggressive behaviour be assessed by an expert. The oral evidence was taken on the same day. Neither the presiding judge nor any of the lay members had participated in the decisions of 7 April 1997 and 3 March 1998 in respect of the applicant's enforcement requests. 69. The District Court also had regard to the opinion on the applicant's mental state submitted by the Unit for Forensic Psychiatry of the Kuopio County Prison on 29 June 1990, the related opinion of the National Medico-Legal Board of 11 July 1990, Dr V's final opinion of 17 May 1995, the Helsinki Social Welfare Authority's opinion of 29 May 1995, the conciliators' opinion of 9 March 1997, the attached secret memorandum, the opinion of the Family Advice Centre of 19 December 1997, the Helsinki Social Welfare Authority's opinion of 31 December 1997 and the pre-trial investigation record of the Kuopio Police Department drawn up in November 1991 in respect of the applicant's offences against H. 70. In its decision of 29 April 1998 the District Court dismissed the applicant's request for joint custody, revoked the access arrangements and upheld the secrecy order in respect of the child's whereabouts. Having heard H orally in the applicant's absence, the District Court had become convinced that her fear of the applicant was genuine and primarily based on his assault and other offences committed in 1991, when H had been pregnant. This fear explained in a plausible manner why she had consistently refused to let I meet the applicant even under supervision. The testimony of witnesses M.H. and M.L. had further strengthened H's account of her fears. 71. The District Court furthermore found it established through the testimony of Dr O.H. that H was considering I's best interests by keeping the child out of her disputes with the applicant. Above all, H had been physically assaulted by him during her pregnancy. Her fears relating to that incident had not been dispersed despite the passage of time. Those fears would inevitably be passed on to I and any access at her age would produce distress and confusion which could lead to a permanent depression and anxiety. Access without any risks could take place once I was able to form her own opinion, namely at the age of 14 or 15. When telling I of her biological father, H had also stated that she did not want the child to meet with him, fearing “something bad” could happen. In the opinion of Dr O.H. the child would at any rate have sensed H's fears intuitively. During the investigation the applicant had cooperated with difficulty and had questioned Dr O.H.'s competence. According to Dr O.H., it would have been crucial to the investigation that the applicant be interviewed in the presence of I. The telephone conversations with him had not clarified his motives for wishing to see his child. 72. The District Court noted that Dr V's testimony had been consistent with that of Dr O.H. and found no reason to question Dr V's competence in the field. Moreover, the District Court's hearing of the applicant in person had strengthened the view that he was unable to distinguish between the child's interests and his own and was perceiving the child's access right as an obligation. 73. Finally, the District Court ordered that the conciliation report and certain passages of its decision which recounted the contents of that report should be kept confidential for a period of forty years. 74. In the light of the quashed access arrangements the Helsinki Court of Appeal, on 22 May 1998, dismissed the applicant's appeal against the District Court's decision of 3 March 1998 and relieved H of paying the administrative fine imposed on 7 April 1997 and upheld for payment on 3 March 1998. 75. In his appeal against the District Court's decision of 29 April 1998 in the second set of custody and access proceedings the applicant requested either that the case be referred back to the District Court for a further investigation into his daughter's conditions and his ability to relate to her, or that an oral hearing be held before the Court of Appeal. The applicant argued that since the mother's fears dated back to his assault in 1991 her fears during the recent years could only be of an imaginary character, given that the two had only met in the court room. By consistently defying the court-ordered access arrangements which had been decided and maintained in the best interests of the child H had eventually managed to have the child's access rights revoked. The applicant also demanded that he be given the necessary information allowing him to contact the child. 76. On 15 December 1998 the Helsinki Court of Appeal refused the applicant's appeal after rejecting his request for a remittal or re-hearing. In refusing to admit the proposed fresh evidence it noted, inter alia, that the applicant had refused to provide detailed information on his own situation at the time of the Kuopio Social Welfare Board's investigation in the autumn of 1997. As to the merits of the appeal, the Court of Appeal found as follows: “According to section 10 of [the Act on Child Custody and Right of Access (laki lapsen huollosta ja tapaamisoikeudesta, lag angående vårdnad om barn och umgängesrätt, no. 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'. Certain international conventions which are binding on Finland emphasise everyone's right to family life as well as the right of a child, who has been separated from a parent, to maintain regular and direct contact with both parents. However, the best interests of the child is a determining factor even in the application of these conventions, and this is explicitly provided for in Article 9, paragraph 3 of the Convention on the Rights of the Child. According to the opinions of the social welfare authorities ... and the witnesses heard before the District Court, [I], who was born [in 1992], has been subjected to exceptionally strong conflicts between her parents. According to the opinions, a five-year-old child is not able to form an opinion of her own which would be distinct from the fears of her mother. Accordingly, meetings at this stage would cause anxiety and confusion in [I], possibly leading to more serious mental problems. During the consideration of the matter [the applicant] has not been able to make a distinction between the interests of the child and his own. The Court of Appeal notes that on the basis of domestic law and international conventions the child has a right of access also in respect of the parent with whom he or she does not reside. If not considered to be in the best interests of the child, this right ... may be set aside by ... the authorities. A right for the parent to enjoy access in respect of his or her child can also be derived from the right to family life provided for in international conventions. In a case of this kind involving conflicting interests or rights the matter shall be decided in accordance with the best interests of the child. Considering the above and the other reasons for the District Court's decision, the Court of Appeal finds ..., whilst recognising the importance ... of creating a father-child relationship between [I and the applicant] as early as possible, that in the present circumstances it is not in the best interests of [I] to grant the right of access requested by [the applicant]. ...” 77. On 23 February 1999 the Supreme Court refused the applicant leave to appeal. 78. On 11 November 1999 the applicant requested the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) urgently to investigate whether any public official had committed an offence in office, or had incited to such an offence, on account of the disclosure to the Ministry for Social and Health Affairs of the applicant's patient records at the Kuopio Social and Health Care Centre. The Ministry's request to obtain the material had allegedly not been founded on domestic law. Information emanating from this material had not only been relied on by the Government in their observations to the Commission but had also been conveyed to conciliator R.C. after the Ministry's Chief Inspector P.-L.H. had advised H to request a fresh conciliation report. The conciliator had conveyed the information further to the Helsinki District Court which had relied on it in its decisions of 7 April 1997 and 29 April 1998 with the result that the access rights had ultimately been revoked. No decision has yet been forthcoming from the Parliamentary Ombudsman. 79. According to the 1975 Paternity Act (isyyslaki, lag om faderskap, no. 700/1975), a court shall collect, of its own motion, all necessary evidence in respect of a paternity investigation (section 30). To this end the court may order the child, the mother and the possible father or fathers to deliver blood samples on pain of an administrative fine. In case of non-compliance the fine shall be upheld for payment and a further fine may be imposed. Alternatively, the court may order that the person in question be brought by force to deliver the sample (sections 1-3 of the 1975 Act on Certain Blood and Other Investigations into Hereditary Features (laki eräistä veri- ja muita periytyviä ominaisuuksia koskevista tutkimuksista, lag om vissa blodundersökningar och andra undersökningar rörande ärftliga egenskaper, no. 702/1975). Cases relating to the establishment or annulment of paternity shall be dealt with urgently (section 46 of the Paternity Act). 80. According to the 1983 Act on Child Custody and Right of Access, the child shall have the right to maintain contact with the parent with whom he or she is not living (section 2). The court shall place primary emphasis on the interests of the child and have particular regard to the most effective means of implementing custody and access rights in the future (sections 9 and 10). The court's interim orders and decisions are immediately enforceable, unless they state otherwise (section 17). 81. The 1975 Act on the Enforcement of Decisions Concerning Custody of Children and Access Rights (laki lapsen huollosta ja tapaamisoikeudesta annetun päätöksen täytäntöönpanosta, lag om verkställighet av beslut som gäller vårdnad om barn och umgängesrätt, no. 523/1975 – “the 1975 Act”) was in force up to 1 December 1996, when it was replaced by Act no. 619/1996 (“the 1996 Act”). Under the 1975 Act enforcement proceedings were to be instituted before the Chief Bailiff which, before ordering enforcement, was to assign, as a conciliator, a person appointed by the Social Welfare Board or another suitable person to mediate between the parties with a view to enforcing the decision and to draw up a report. Such conciliation was to be aimed at persuading the person taking care of the child to comply voluntarily with his or her obligations under the relevant decision. Conciliation was not to be ordered if it was evident from previous attempts that it would be unsuccessful or, in the case of a custody decision, if immediate enforcement was in the child's interests and dictated by strong reasons (sections 4 and 4a). 82. If deemed necessary, the Chief Bailiff was to obtain opinions from State and municipal authorities and hear the child itself and others. The Chief Bailiff could also proceed to hear witnesses and experts and have the child examined by a physician (section 11). 83. The Chief Bailiff's decision could be enforced immediately and could include the imposition of an administrative fine for enforcement purposes (sections 5 and 13). 84. If, following a decision regarding access, the conditions had changed so significantly that a re-examination by a court would be in the best interests of the child, the Chief Bailiff was to dismiss the enforcement request (section 7). 85. Under the 1975 Act enforcement could not take place against the child's own wishes if he or she was twelve years of age or sufficiently mature for his or her wishes to be taken into account (section 6). The 1996 Act contains a similar provision (section 2). 86. According to the 1996 Act, a request for enforcement shall be lodged with the competent district court which shall normally appoint a conciliator to mediate and draw up a report (sections 6 and 8). The court may hear the conciliator, the child and others orally, obtain opinions from State and municipal authorities and order that the child be examined by a physician or other expert (section 12). The court shall dismiss the request if, in light of changed circumstances or for any other reason, enforcement would be manifestly contrary to the child's best interests (section 14). 87. The 1996 Act furthermore provides for the possibility of escorting the child to meetings with a view to enforcing access arrangements, if it is likely that access would not otherwise materialise and provided there are, from the point of view of the child's best interests, particularly weighty reasons (section 16). The conciliator or a representative of the social welfare authority must escort the child. He or she must request the presence of a person close to the child and, if necessary, that of a physician or other expert (section 24). All measures must be carried out without shocking the child. If enforcement is impossible owing, for instance, to the shock experienced by the child, it must be postponed (section 3). 88. In the drafting history of the 1996 Act the government proposed that a court could issue a standing escorted access order which would be valid for six months (see Bill no. 96/1995, pp. 44-45). Parliament's Standing Legal Affairs Committee did not accept this proposal. Considering that being escorted was stressful for the child, the Committee found that an escorted access order should only be issued for one meeting at a time (Committee Report no. 7/1996). 89. The district court may order the defendant either to hand over the child to the party seeking enforcement or to disclose the child's whereabouts on pain of an administrative fine (sections 15 and 17). For particular reasons, the fine may be automatically staggered, its final amount depending on the duration of the non-compliance (section 18). Certain provisions of the 1990 Act on Administrative Fines (uhkasakkolaki, viteslag, no. 1113/1990) are also applicable. Accordingly, the fine is fixed on the basis of all relevant circumstances and may be reduced for particular reasons. The district court may also quash and reconsider the imposition of a fine if the circumstances have changed, if important fresh evidence has been obtained or if the fine has been imposed by a manifestly incorrect application of the law (sections 8, 11 and 12). 90. The Act on Custody and Access Rights with regard to children does not compel a custodian to disclose a child's whereabouts to a parent who lacks custody. Under the Social Welfare Act, social welfare officials may not, without the consent of the person concerned or that of, for instance, his or her custodian, disclose personal and family information obtained in the performance of their duties. This duty of confidentiality does not prevent officials from disclosing information to those entitled to obtain it for the performance of their official duties (section 57). Thus the social welfare authorities are entitled to obtain, from a public body such as a municipal care centre, any material required for the performance of their duties (section 56). The confidentiality of patient records, as stipulated in the Act on the Status and Rights of Patients, may thereby be waived (section 13 of the said Act). A refusal to disclose information requested under section 56 of the Social Welfare Act constitutes an offence (section 58). 91. Under section 8 of the 1996 Act a conciliator must have access, to the same extent as social welfare authorities, to medical and other information as stipulated in section 56 of the Social Welfare Act. The conciliator may also seek executive assistance in gathering such information. The conciliator's report may contain information which should not be disclosed, bearing in mind the child's best interests. The court may disclose such information only to a party to the proceedings and to other authorities. 92. According to the 1987 Act on Personal Data Files (henkilö-rekisterilaki, personregisterlag, no. 471/1987), a registered person may prohibit the keeper of the register from disclosing his or her address (section 23). A custodian has the same right in respect of a child. 93. According to the Population Data Act, a registry office may, on request, order that an address may only be disclosed to authorities if the person in question has reason to fear for his or her own or his or her family's health or safety. The secrecy order may be granted for two years, following which it may be prolonged on an annual basis (section 25, subsection 4, as in force as from 1 June 1994).