K.A. v. Finland

App. No. 27751/95, Eur. Ct. H.R. 27 (2003).
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The applicant, a father of three young children, claimed a violation of his right to respect for his private and family life and home under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention), when Finnish authorities placed his children in public care in response to allegations of sexual abuse in the applicant’s home. The local Social Welfare Office originally investigated the home when a private individual shared a suspicion that the children’s mother, who suffered from debilitating mental problems, was molesting the children, walking around the home nearly unclothed, using lewd language in front of the children and showing the children pornographic films. The individual also raised a suspicion that both parents were consuming large quantities of alcohol on a daily basis. Initial investigations found no evidence of incest. However, the Social Welfare Board chose to place the children in public care through emergency orders pursuant to section 18 of the Child Welfare Act after several more allegations of sexual abuse compelled the Board to carry out a more thorough investigation of the children’s home situation.

When the Board upheld its emergency orders over the challenge of the applicant, he appealed to the local County Administrative Court, which also rejected his appeal. The Supreme Administrative Court subsequently rejected the applicants’ request for an oral hearing without providing a rationale for its decision. The Social Welfare Board then updated the children’s care plan and decided that long-term foster care with highly restricted interaction from their biological parents would be in their best interests. The applicant sought review of the Board’s updated care plan in the County Administrative Court, but the latter refused to rule on the merits of his appeal. After further attempts to seek termination of the public care in both the Country Administrative Court and Supreme Administrative Court failed, the applicant filed the current action with the European Court of Human Rights. Specifically, the applicant claimed that Finnish authorities violated his right to family insofar as it placed his children in public care without a thorough examination of his home and the existence of an unbiased decision-making process. He also claimed that authorities further violated his Article 8 rights by refusing to take his interests into account when implementing the public care plan and by failing to take steps to work effectively towards terminating the plan and reuniting his family.

The Court found that Finland did not violate the applicant’s Article 8 right to respect for his private and family life and home as enshrined in the Convention, but only with regard to the public care orders and its decision-making process, recognizing the importance of a parent's right to access to information on which the government relies for undertaking "measures of protective care." Regulation of the public care of children is the task of the competent domestic authorities, which must make its decision on “relevant” and “sufficient” reasons. The competent authorities in this case sufficiently established that the initial emergency care orders and the normal care orders that followed were made pursuant to a careful assessment of the impacts on both the children and the parents. The competent authorities also demonstrated that they took all necessary steps to ensure the effective involvement of the applicant at the appropriate times during the decision-making process. However, Finland did violate the applicant’s Article 8 rights insofar as it did not genuinely consider as its ultimate aim the possibility of reuniting the applicant’s family. The competent authorities did not meaningfully consider terminating the care plans despite the fact that the applicant and his wife demonstrated considerable improvement over time and they at no stage endangered the wellbeing of their children. Finland was therefore liable to the applicant for non-pecuniary damage, as well as cost and expenses.

"105. Moreover, this Court has found it essential that a parent be placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care. A parent may claim an interest in being informed of the nature and extent of the allegations of abuse made by his or her child or by persons outside the family. This is relevant not only to the parent's ability to put forward those matters militating in favour of his or her capability in providing the child with proper care and protection but also to enable the parent to understand and come to terms with traumatic events affecting the family as a whole. Situations may arise where a parent can claim no absolute right to obtain disclosure of, for example, a child's statement, if a careful consideration leads to the conclusion that such disclosure could place the child at risk. As a general rule, however, the positive obligation on the Contracting State to protect the interests of the family requires that all case-material be made available to the parents concerned, even in the absence of any request by them (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §§ 78-83, ECHR 2001-V, and P., C. and S. v. the United Kingdom, no. 56547/00, §§ 136-138, ECHR 2002-...)."

"138. As the Court has reiterated time and again, the taking of a child into public care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and any measures implementing such care should be consistent with the ultimate aim of reuniting the natural parent and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. After a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited."

"139. Whereas the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into public care, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed. The minimum to be expected of the authorities is to examine the situation anew from time to time to see whether there has been any improvement in the family's situation. The possibilities of reunification will be progressively diminished and eventually destroyed if the biological parents and the child are not allowed to meet each other at all, or only so rarely that no natural bonding between them is likely to occur (see K. and T. v. Finland, cited above, §§ 151, 154-155, 173, 178-179)."