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FOURTH
SECTION
CASE OF
KAJARI v. FINLAND
(Application
no. 65040/01)
JUDGMENT
STRASBOURG
23
October 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kajari v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 2 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 65040/01) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Estonian national, Mr Jenn Aimar Kajari
(“the applicant”), on 4 December 2000.
- The
applicant was represented by Mr H. Vallikivi and Mr J. Kortteinen,
lawyers practising in Tallinn and Helsinki respectively. The Finnish
Government (“the Government”) were represented by their
Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
- The
applicant alleged, in particular, a violation of his right to respect
for family life.
- By
a decision of 14 February 2006, the Court declared the application
partly admissible. On 14 March 2006 the Estonian Government indicated
that they did not wish to exercise their right to intervene (Article
36 § 1 of the Convention).
- The
applicant and the Government each filed further written observations
(Rule 59 § 1). The Chamber having decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine), the Government replied in writing to the applicant's
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- 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.
- 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.
- 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.
- 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.
- On
17 August 1998 the mother removed the child from day care in Tallinn
and brought her to Finland.
A. The custody proceedings
- 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.
- 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.
- 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.
- 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.
- 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.
- 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”.
B. The access proceedings
- 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.
- 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.
- On
6 July 2000 the court held a hearing during which the parents with
their counsel were present. It received written and oral evidence.
- 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.
- 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.
- On
30 July 2001 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Custody and right of access
- 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).
Recognition and enforcement of a foreign custody agreement
- 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).
- In
order to have an agreement enforced in Finland it must first be
recognised by the Helsinki Court of Appeal (section 25; 186/1994).
Changing an agreement or review of a court order
- 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).
Report by the Social Welfare Board
- In
order to decide on a case relating to child custody or right of
access, the court must, unless unnecessary, request the Social
Welfare Board to prepare a report on the circumstances of the case.
The court is not bound by the report, which states the circumstances
as the social welfare authorities see them and the Social Welfare
Board's opinion on how custody or rights of access could be arranged
(section 16; 186/1994).
Discretion of the court
- 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).
Ascertaining the child's wishes and views
- 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).
- 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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that his right to access to his child had been
overly restricted by the courts' decisions and fixed in a manner that
made it effectively impossible for him to develop or to even maintain
his relationship with his child: the daughter attends school on
weekdays and due to the long journey between Estonia and her home it
is impossible for the applicant to arrive at noon and to stay until
six o'clock in the evening. The daughter should have been heard
before the courts to find out her opinion, or at least to verify the
reasons she had, according to the Social Welfare Board, expressed for
her reservations as to meeting the applicant alone. The decisions did
not strike a fair balance between the applicant's rights and other
interests involved, and moreover, they were not even properly
reasoned.
Article
8 reads:
“1. Everyone has the right to respect
for his ... family life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The parties' submissions
- The
applicant questioned whether there had been a legitimate aim for the
restricted access. The proceedings and their outcome had been
one-sided. The Social Welfare Board and the courts had based their
view on the fact that the parents were in dispute about their
daughter's custody. Not only did the Finnish authorities and the
courts lack a proactive approach but they had closed their eyes to
the applicant's attempts to re-establish a normal relationship with
his daughter. The access order had ignored the fact that his daughter
attended school on Friday mornings. The supervised visits were to
take place at a distance of 25 kilometres from the school and in
order to be there at noon, the mother had to remove the child from
school before her classes ended. Thus, the arrangement did not serve
the best interests of the child.
- The
applicant submitted that he and his daughter had met in accordance
with the access fixed by the courts on three occasions in 2000. All
the meetings had been shorter than scheduled because of the
applicant's travel arrangements since he had arrived only at 1.30 or
2 p.m. and he had had to leave again at around 4.15 p.m. in order to
catch the last ferry to Tallinn. The conditions under which they had
met had been humiliating and had not helped to re-establish a close
relationship. The meetings had been held behind locked doors and no
friends from Estonia had been allowed to take part in the meetings.
In mutual agreement with the mother the meetings as granted by the
courts had soon been replaced by meetings and joint activities at the
daughter's home and in other places in Finland, subsequently also in
Estonia. The applicant was not aware of any attempts by the Finnish
authorities to review the access order although the authorities were
obliged to act in the best interests of the child. The applicant did
not comment on the Government's argument that he had not requested
the District Court to reconsider the arrangements.
- The
Government contested the allegation. They acknowledged that there was
family life between the applicant and his daughter and that the
impugned measure had constituted an interference with the right to
respect for family life. However, it had been in accordance with the
law and pursued the legitimate aims of protecting the health or
morals and the rights and freedoms of the child. There was no
indication that the law had been applied for any other purpose than
to provide the child with safe and stable living conditions and to
ensure a secure environment for her development. The measure had a
basis in national law, according to which in case of dispute it was
for the court to define the extent and the manner for the visits
having regard to the best interests of the child. In the present
case, the courts had received the Social Welfare Board's written
opinion and evidence submitted by the parties. The courts had given
relevant reasons. At the time of the proceedings, the girl had
already been living with her mother in Finland for over five years.
She had taken the view that she would like to see her father on her
own when she grew older. If the parents agreed, nothing prevented the
applicant and his daughter from meeting more often, as the visiting
rights ordered by the courts were only a minimum.
- The
Government submitted that although the visits as ordered by the
courts could be considered somewhat unsuitable, the length and the
frequency of the visits had still been at the courts' discretion,
bearing in mind the best interests of the child. As to the fact that
the child had not been heard before the courts, the Government
pointed out that children were in principle not heard in court. The
decision-making process had provided the applicant with the requisite
protection of his interests. The Government noted that the applicant
could have requested the District Court to reconsider the access
arrangements due to changed circumstances, namely the age of the
child and the positively developed relationship between him and the
child.
- The
Government also submitted that the applicant had met his daughter
only three times for 2-3 hours at a time in accordance with the
impugned decision, namely in July, August and November 2000. Five
organised visits had been unsuccessful as neither of the parents had
appeared. Nor had they informed the social welfare authorities of any
cancellation. On 3 November 2000 the parents had agreed that there
would be no more scheduled visits until further notice. No such
notice has been given to the authorities. The applicant visited his
daughter four times in 2001 in her home for 1-4 hours at a time.
Accordingly, the parents have been able to agree on the contacts
themselves and it appears that the applicant and his daughter have
seen each other regularly. According to the mother's reply to the
social welfare authorities' inquiry, since 2002 many visits have
taken place even in Estonia and the applicant and his daughter have
spent many holidays together and also kept contact by telephone.
B. The Court's assessment
- The parties agree that there was
family life between the applicant and his daughter and that the
access decision amounted to an interference with his right to respect
for his family life, as guaranteed by Article 8 § 1. The Court
sees no reason to differ. Any such interference will constitute a
violation of this provision unless it is “in accordance with
the law”, pursues an aim or aims that are legitimate under
Article 8 § 1 and can be regarded as “necessary in a
democratic society”.
- The Court observes that the
decision in issue had a basis in national law and it was aimed at
protecting the best interests of the child, which is a legitimate aim
within the meaning of Article 8 § 2.
- In
determining whether it was “necessary in a democratic society”,
the Court has to consider whether, in the light of the case as a
whole, the reasons adduced to justify this measure were relevant and
sufficient for the purposes of Article 8 § 2. Undoubtedly,
consideration of what lies in the best interests of the child is of
crucial importance in every case of this kind. Moreover, it must be
borne in mind that the national authorities have the benefit of
direct contact with all the persons concerned. It follows from these
considerations that the Court's task is not to substitute itself for
the domestic authorities in the exercise of their responsibilities
regarding custody and access issues, but rather to review, in the
light of the Convention, the decisions taken by those authorities in
the exercise of their power of appreciation (see Sahin
v. Germany [GC],
no. 30943/96, § 64, ECHR
2003 VIII).
- The
authorities enjoy a wide margin of appreciation, in particular when
deciding on custody. However, a stricter scrutiny is called for as
regards any further limitations, such as restrictions placed by those
authorities on parental rights of access, and as regards any legal
safeguards designed to secure an effective protection of the right of
parents and children to respect for their family life. Such further
limitations entail the danger that the family relations between a
young child and one or both parents would be effectively curtailed
(see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR
2000-VIII; and Kutzner v. Germany, no. 46544/99,
§ 67, ECHR 2002 I).
- In the present case, the
District Court reached its decision having had regard to all the
circumstances and evidence submitted to it and having examined the
case also in the light of the written opinion of the Social Welfare
Board of Harjavalta. Insofar as the applicant has expressed his
misgivings with the opinion, the Court notes that the District Court
made its own assessment of the case and granted longer visits than
proposed in the opinion. The District Court placed emphasis on
the fact that the applicant and his seven-year old daughter had not
met regularly for about two years and that the girl had a reserved
attitude towards her father. Against that background, the Court
considers that the decision to grant only supervised visits may be
regarded as supported by relevant and sufficient reasons.
- As
to the effects of the access order, the Court recalls that
contact visits did take place during 2000 following which the parents
agreed that there would be no more scheduled visits until further
notice and that they subsequently failed to give the authorities such
notice but arranged the visits by mutual agreement (see paragraphs 33
and 36 above). The Court acknowledges that arrangements such as those
fixed by the courts in this case may require great efforts on the
part of the parent with whom the child no longer lives. However, it
recalls that in a balancing exercise like the present the best
interests of the child may override those of the parent. The Court
also observes that the applicant could at any time have made an
application to have the access order amended if he found it too
difficult to be put into effect (see paragraph 26 above). This was
also emphasised in the District Court's decision (see paragraph 20
above).
- As
to the procedural requirements implicit in Article 8 (for which see
Sahin v. Germany [GC],
cited above, §§ 70-72), the Court finds no indication that
the decision-making process did not provide the applicant with the
requisite protection of his interests. As to the applicant's
grievance that the domestic courts did not hear evidence from his
daughter, it is to be noted that her views were recorded in the
report submitted by the Social Welfare Board and considered by the
domestic courts.
- The
Court finds therefore that there is no indication that the courts
failed to respect the applicant's right to respect for family life as
regards the issue of access to his child. It follows that there has
been no violation of Article 8 in that regard.
II. ALLEGED VIOLATION OF ARTICLE 8 IN
CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
- The
applicant alleged discrimination in relation to the alleged breach of
the right to respect for family life. The Social Welfare Board had
not taken into account his right to develop ties to his daughter.
Article
14 reads:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. The parties' submissions
- The
Government contested the allegation as the allegedly discriminatory
opinion of the Social Welfare Board had been examined by the courts.
The courts had taken note of all the circumstances and all the
evidence before issuing its decision.
- The
applicant submitted that although he had been able to present his
arguments before the courts, they clearly placed substantial weight
on the arguments of his ex-partner, whereas they did not explain why
they disagreed with the arguments put forward by him.
B. The Court's assessment
- The
Court considers that the applicant's complaint is in reality a
restatement of his complaints under Article 8 regarding the manner in
which the domestic courts balanced the interests involved and
therefore gives rise to no separate issue.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1
OF THE CONVENTION
- The
applicant complained, under Article 6, that he had been denied fair
proceedings by impartial tribunals in that the District Court had
stated that “the question concerns only the child's right to
meet with her father and not the father's right too see his child”,
and the higher courts had not corrected that statement. The decisions
were not properly reasoned, either.
Article
6 § 1 reads in relevant part:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- The
Court notes that the Finnish Child Custody and Right of Access Act
emphasises that a decision on access must be in accordance with the
best interests of the child and that the right in question is a right
granted to the child to maintain contact and meet with the parent
with whom he or she no longer resides (see paragraph 23 above). In
such circumstances, the impugned statement does not disclose any
partiality on the part of the District Court or the higher tribunals.
- As
to the reasoning provided by the domestic courts, the Court
reiterates that whilst Article 6 § 1 obliges courts to give
reasons for their decisions, it cannot be understood as requiring a
detailed answer to every argument. Nor is the Court called upon to
examine whether arguments are adequately met (see Van de Hurk v.
the Netherlands, judgment of 19 April 1994, Series A
no. 288, p. 19-20, § 59-61). Making a general assessment, the
Court does not find that the decisions in question are insufficiently
reasoned.
- There
has therefore been no violation of Article 6 § 1 in the present
case.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been no violation of
Article 8 of the Convention;
- Holds that no separate issue arises under
Article 8 taken together with Article 14 of the Convention;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 23 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
