CASE OF KAJARI v. FINLAND
No violation of Art. 6-1;No violation of Art. 8
Nicolas Bratza
6. The applicant was born in 1944 and lives in Tallinn. He and another Estonian national have a daughter born out of wedlock in 1992. On 31 July 1994 mother and daughter arrived in Finland. On 17 February 1995 their residence there was officially registered. In 1994-1998 the daughter lived both with her father in Estonia and with her mother in Finland in accordance with an agreement between the parents. 7. According to the Government, on 18 January 1995 the applicant gave his written consent to the child's temporary stay in Finland and on 5 February 1995 he gave his consent that she stay permanently in Finland, presupposing that his visiting rights would not be affected. 8. According to the applicant, he and the mother agreed in writing on 3 February 1995 that they would participate equally in the care of their daughter and that she would spend an equal amount of time, about one month at a time, with each parent. 9. On 8 December 1995 the applicant and the mother agreed that neither of them would pay the other maintenance in respect of their daughter. On 19 December 1995 the agreement was confirmed by the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Harjavalta, Finland. 10. On 17 August 1998 the mother removed the child from day care in Tallinn and brought her to Finland. 11. On 12 November 1998 the mother instituted custody proceedings in the District Court (käräjäoikeus, tingsrätten) of Kokemäki, Finland, following which the court made an interim order awarding her sole custody. 12. The court received the Social Welfare Board's of Harjavalta and the Social Welfare and Health Care Department's (Sotsiaal- ja Tervishoiuamet) of Tallinn written opinions on the assessment of the parents and their living conditions. The Finnish authority had interviewed the mother, the child and her brother, the mother's partner and the child's day care teacher. It did not interview the applicant nor did its Estonian counterpart interview anyone other than the applicant. It appears that the authorities did not contact each other before submitting their opinions. 13. The District Court held two hearings, on 17 May and 4 June 1999, during which the parents with counsel were present. It received evidence from the parties and several witnesses. In its decision of 9 June 1999 the court found that the Finnish courts had jurisdiction and that Finnish law was applicable to the case. The court held that as the parents were unable to agree on matters relating to custody, custody should be awarded to the mother alone. The court reached its decision having had regard to all the circumstances and evidence submitted to it and having assessed the case also in the light of the written opinions of the relevant social welfare authorities. 14. On 10 December 1999 the Turku Court of Appeal (hovioikeus, hovrätten), having held a hearing, rejected the applicant's appeal. It held that the Finnish courts had jurisdiction because the child resided in Finland and had a close connection with the country. It also agreed with the lower court that Finnish law was applicable. As the parents' agreement of February 1995 had not been confirmed by the Social Welfare Board, the custody had not been settled prior to the proceedings in question. Further, the court found that the child's living conditions with the mother were balanced and solid. As the parents were unable to make decisions together relating to their daughter's custody, the court saw no reason to amend the lower court's decision. 15. On 12 June 2000 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. In 2002 the applicant lodged an application with the Finnish Ministry of Justice (oikeusministeriö, justitieministeriet) in order to have the child returned to Estonia under the Hague Convention on the Civil Aspects of International Child Abduction. The application was rejected, since it had already been confirmed by the above-mentioned courts that the child's habitual residence was in Finland. Thus, the Hague Convention did not operate. 16. Meanwhile, on 28 August 1998 the applicant instituted custody proceedings before the Tallinn City Court (Tallinna Linnakohus). In June 1999 the proceedings were suspended “until clarification of the issue of proper forum”. 17. On 26 January 2000 the applicant instituted access proceedings before the District Court of Kokemäki. He requested that the child be allowed to visit him once a month from Friday evening until Sunday evening and during some of the holidays. 18. On 9 June the court received a written opinion from the Social Welfare Board of Harjavalta, which had interviewed the mother and her partner on several occasions. Also the daughter had been interviewed at her home. The applicant had been interviewed over the telephone and he had submitted some documents in support of his access claim. 19. On 6 July 2000 the court held a hearing during which the parents with their counsel were present. It received written and oral evidence. 20. On 14 July 2000 the court ordered that the child should have the right to meet with the applicant every other Friday from 12 noon to 6 p.m. under the supervision of a social worker at the child's domicile. The mother was to assume responsibility for transporting their daughter to these meetings and for bearing the transportation costs. The court considered that the visits should be supervised owing to the fact that the applicant and the child had not met regularly for two years. One of the factors that contributed to this conclusion was that the applicant had allegedly tried to abduct the child. Further, as to the view of the Social Welfare Board that access should be granted twice a month for three hours at a time, the court found that three hours was too short a period in order to develop a trusting relationship between the applicant and his daughter and accordingly, it ordered that the visits should last six hours at a time. Lastly, the court emphasised that the access arrangements could be altered in the future, if need be. 21. On 9 March 2001 the Turku Court of Appeal rejected the applicant's appeal without an oral hearing. As to the allegedly unfair District Court proceedings, it found that the applicant had been able to submit evidence, which fact transpired from the decision. In its decision the District Court had stated what evidence had been submitted to it. As to the merits, the Court of Appeal found no reason to amend the lower court's decision. 22. On 30 July 2001 the Supreme Court refused leave to appeal. 23. Custody and right of access may be organised either by an agreement that is confirmed by the Social Welfare Board or by a court decision. The parents can have joint custody, custody can be awarded to one of the parents or to some one else who has consented thereto. The child has the right to maintain contact and meet with the parent with whom he or she no longer resides (sections 7, 8 (186/1994) and 9) of the Child Custody and Right of Access Act (laki lasten huollosta ja tapaamisoikeudesta, lag angående vårdnad om barn och umgängesrätt; 361/1983). When making a decision relating to custody and right of access, the best interests and the wishes of the child must be taken into account (sections 10 and 11). 24. When a child has domicile in Finland at the time of conclusion of an agreement on his or her custody, the agreement has to be made in accordance with Finnish law, even if all the parties are of a foreign nationality. In order for the agreement to be valid, it has to be confirmed by the Social Welfare Board (section 8). Alternatively, the question of custody may be decided by a court. An agreement concluded without the confirmation of an authority may upon request be recognised and enforced in Finland as a decision given in a foreign State, if the measure is legally valid and enforceable in the State where the child had habitual residence at the time of conclusion of the agreement (section 23). 25. In order to have an agreement enforced in Finland it must first be recognised by the Helsinki Court of Appeal (section 25; 186/1994). 26. A parent may at any time institute proceedings in a case relating to custody or right of access (section 14). An agreement or a court order may be amended if the circumstances have changed (section 12). 27. 's opinion on how custody or rights of access could be arranged (section 16; 186/1994). 28. In cases where the parents are unable to reach an agreement on custody or rights of access, the case will be decided by the court. The guiding principle is the best interests of the child. Special attention shall be paid to the manner in which custody or right of access may best be realised (section 10). 29. The child's wishes and views must be ascertained as far as possible in view of the child's age and stage of development. The views of the child shall be ascertained tactfully, taking his or her stage of development into account, and in a manner not detrimental to the relationships between the child and the parents (section 11). 30. In normal circumstances a twelve-year-old is considered mature enough to express his or her views. The interview of a child is usually conducted by the social welfare authorities and at the child's home. However, the court may decide to hear the child in person, if there are important reasons for doing so, the child does not object to it and it causes no harm to the child (section 15).