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K & T v. Finland
By Anu Suomela
Association for Family Rights in Finland
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Anu Suomela is the vice president of PESUE - the Association for Family Rights in Finland. She was the legal representative of Katrin and Timo (K & T) in their complaint to the European Court of Human Rights. The following is Anu Suomela's lecture at the NCHR's Symposium in Gothenburg, June 17, 2000. |
K & T v. Finland:
HistoryKatrin has 4 children
Pia's (1986) father is Julle
Mikael's (1988) father is Vesa
Jaana's (1993) father is Timo
Raija's (1995) father is Timo
History 1989-1993
Katrin was a single mother of Pia and Mikael
Mikael suffered of serious lactose intolerance
Katrin was hospitalised three times in 1989 - 1990 on account of psychoses
Grandmother took care of the children
Katrin and Timo started cohabiting in 1991
Pia and Mikael lived with them
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Katrin and Vesa were 1991-1993 involved in a prolonged custody and access dispute concerning Pia. The court ordered her to live with Vesa
Katrin was pregnant with Jaana and reacted with psychoses in this stress situation
Katrin was hospitalised and two doctors stated in April 1993 that she was not at the moment capable of taking care of Mikael, but her illness was not a permanent obstacle to care for him
Katrin and Timo placed Mikael in May 1993 into a children's home as an open care measure for 3 months, as Katrin was near her time
Child protection had prepared the taking of the children into public care immediately after the birth of Jaana
Compulsory public care as an emergency measure 1993
They had not informed the parents about the plan and they were not legally heard
Jaana was born 18.06.1993
The compulsory public care order was given immediately
The hospital had been informed beforehand not to hand the baby over to Katrin
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The reasoning for the care order: Jaana might be in danger if Katrin would find out about the preparation of the public care order
She had never endangered her children
21.06 also Mikael was taken into compulsory public care
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There was no legal decision to restrict the access rights 18-21.6, yet the access was prohibited
History after the public care 1993-1994
Jaana was transferred to a small children's home and Timo nursed her daily. He succeeded better than well
Timo was told that he could get Jaana if he cuts his relationship with Katrin and
he moved in July to an apartment of his own
He allowed Katrin to visit the baby during her home leaves
When the child protection found this out they decided not to give Jaana to Timo
The County administrative court confirmed the care orders in September 1993
That same day the social worker started looking for a substitute family
They did not tell the parents
The Supreme administrative court confirmed the care orders in September 1994
Katrin had recovered and came home in October 1993
The children moved to the substitute family at the beginning of 1994
The substitute parents did not have children
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The parents were allowed to visit the children only once a month under supervision
The reason: the children have to root themselves to the substitute family
Further restrictions of access rights 1994-2000
The parents have never met the children in unsupervised conditions
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The children have once a year visited their parents' home with the substitute parents
Parents tried to get their children back 1994
The parents moved back together in 1994
In March 1994 the family demanded a care plan aiming to reunite the family
In May 1994 they demanded the revocation of the public care orders
The parents tried to get the restrictions of access revoked 1994-2000
The social director had sent the papers to Dr V, known in Finland as a person who wants children to be separated from their mothers
The Court confirmed the access restrictions: '... the children will retain knowledge of their biological parents ...'
Further history 1995-2000
Katrin was pregnant with Raija in Autumn 1994 and the social director told her that further children born would be taken into public care
Raija was born in April 1995
Katrin was hospitalised twice
All appeals have been rejected
The latest restriction decision started in 2.2.1999 and ends 31.12.2000
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The motivation for such long restrictions has been to save the work of the authorities
Katrin's health has been stable since the beginning of 1996
The social authorities continued controlling the family till 1999
Taking the case to the European Commission of Human Rights
The application was registered in November 1994
The case was transferred to the Court 1.11.1998
Innumerable letters were exchanged
An oral admissibility hearing was held 8.6.1999
The judgement was given 27.4.2000
The judgement of the European Court 2000
The taking into public care
Both children were in safe conditions in institutions.
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'... the mother's psychotic behaviour only hours after having found out that she had been deprived of her new-born baby cannot serve as a reason supporting a decision already made.
Nor can a possible threat of such behaviour, in the case of a forthcoming care order justify such decision.
The Court finds it likely that any mother - with or without mental history - would, in such circumstances, face a risk of behavioural disturbances ...'
... the reasons adduced to justify the care orders were not sufficient and the methods used in implementing those decisions were excessive
... the Court finds that in taking the above care measures the national authority exceeded the margin of appreciation and that such measures cannot therefore, be necessary in a democratic society ... taking into public care constituted a violation of Article 8 of the Convention.
The refusal to terminate the care
The applicants still live together and Raija has not been taken into public care.
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Two doctors had stated that Katrin's mental health is not a permanent obstacle for her to take care of her children.
This indicates that the impossibility of reuniting the family was not at the outset clear.
The authorities seemed to have proceeded from the assumption of the need for long-lasting care ...
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The parents access to the baby was restricted during the first days of her life.
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... taking the baby directly from the delivery room was arbitrary and not conducive to facilitating a normal bond between the mother and child.
Timo had created a positive relationship with Jaana.
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Dr P's statements were denied and leaned to the statement of Dr V who had not met Katrin but yet stated that she did not see her children as separate individuals who need love and care.
Further positive development of Katrin's mental health from the beginning of year 1996 did not make any change in the situation.
The development has no doubt been furthered by the restrictions to visit the children, which more reflects an intention to strengthen the ties between the children and the foster family than to reunite the family.
In the circumstances of the case, it appears that there was a lack of any serious effort to consider the termination of public care, despite evidence of an improvement in the situation which had led to the care orders, and that this amounted to such a lack of fair balance between the various interests involved as to constitute a violation of Article 8 of the Convention.
The access restrictions
The Court did not examine the past restrictions as a separate issue, but stated that as the children now had stayed at the substitute family for seven years, it had become very difficult to reunite the family
The Court accepts that the national authorities, within their margin of appreciation, may consider such restrictions necessary in the light of the present-day interests of the children. There is no violation of Article 8 of the Convention.
The Court ordered the Government to pay 40.000 FIM (55.000 SKr) compensation to both parents
The judgement was unanimous. Judge Pellonpää stated that the taking into care did not violate Article 8, but not to terminate the care did violate it
How much does it cost?
The costs of the placement to the children's home were about 0,5 million FIM (700.000 SKr)
The payments to the substitute family amount to about 2,5 million FIM (3.000.000 SKr). Other administrative and legal costs are impossible to estimate
The meaning of the decision
The backbone of the Court's principle of the 'margin of appreciation of the local Government' has now been broken for the first time.