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FOURTH SECTION

Application no. 65550/10
K. against Finland
lodged on 5 November 2010

STATEMENT OF FACTS

The applicants, Mrs K and her minor son, are Finnish nationals. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 3).

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants are a mother and her son, born in 1994. Their family consists of both parents and four children. Two older children have already graduated from school and moved away from home.

Over a period of a year and a half, the applicant son had difficulties attending school regularly and was frequently absent, especially from autumn 2007 onwards. On the one hand the applicants claimed that the applicant son was bullied at school until spring 2008. On the other hand, the teachers complained about the applicant son’s behaviour, especially his aggressive and threatening way of speaking to other pupils and teachers. In autumn 2008 the applicant son attended a small class which was taught by a special teacher. According to the headmaster of the school, this class was not suitable for the applicant son and his emergency placement took place. However, the applicant son wanted to stay at home. The family support centre described his relationship with his mother as being close, even too intense and his relationship with his father as being distant. There were suspicions that the father had been violent towards the applicants.

The applicant son was diagnosed as suffering from ADHD (Attention Deficit Hyperactivity Disorder) and Asperger’s syndrome. He took medication for these conditions.

1.  Proceedings relating to the taking into public care and the placement of the child

On 5 September 2008 a social welfare officer decided to place the applicant son in a family support centre from 5 September 2008 to 4 October 2008. Prior to the decision the applicant son had threatened in school to hit or to kill his school mate. The applicant son did not take the medication for his conditions and he missed appointments at the psychiatry centre and with the school counsellor. A child welfare officer was unable to establish contact and engage in conversation with the applicant son.

On 17 October 2008 the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) apparently decided to extend the emergency placement of the applicant son for 60 days.

On 3 December 2008 a social welfare officer requested the Administrative Court to take the applicant son into public care and to place him in a family support centre. According to the request, the conditions at home endangered the welfare of the child. His day and night routines were disorderly, he did not behave as expected and his school performance was not satisfactory. The applicant son and the parents opposed the measures.

On 3 June 2009 the Administrative Court, after having held an oral hearing on 7 April 2009, accepted the request and confirmed the taking into public care of the applicant son and his placement. The Administrative Court found that the applicant son had shown, from autumn 2007 onwards, a high level of absenteeism from school, not all of which could be explained by sickness and being subjected to bullying at school. His behaviour had also been aggressive and verbally abusive. The applicant son was diagnosed as suffering from ADHD and Asperger’s syndrome. Since October 2008 he had followed the doctor’s orders better than before and the relationship with his doctor had improved, but this was not enough to secure the applicant son’s health and development. The court found that while the applicant son’s learning had shown improvement during his time in the family support centre, it continued to be highly uncertain whether he would receive support from a strong adult and be subject to appropriate limits and a stable everyday life if he were to live at home. As a result of his condition the applicant son needed a stable everyday life and strong support more than most children of his age. His parents had not been capable of responding to these needs and there was insufficient proof that there would be a change for the better in this regard. The Administrative Court concluded that the applicant son would be able to keep in contact with relatives and continue to play football even when placed in public care for a longer time. All in all, it was not decisive in the matter that he had expressed his wish to live at home. He needed a place where his normal daily routines, attending school, respecting limits and regulations, health care and independence, were taken care of.

On an unspecified date the applicant son appealed against the decision of 3 June 2009 to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that the decision be quashed.

On 10 May 2010 the Supreme Administrative Court upheld the Administrative Court’s decision.

2.  Proceedings relating to contact rights

On 25 June 2009 the applicant son was placed in a foster home, which was located 150 kilometres from his home.

On 17 November 2009 a social worker decided that the applicant son would not be allowed to travel home from the foster home between 11 August 2009 and 29 September 2009, but that his parents could visit him in the foster home. He was allowed to telephone home five times a week. According to the reasoning, the applicant son and his parents were not co-operative and they all felt very strongly opposed to the taking into care of the applicant son. Under these conditions it was important for the applicant son to be able to adjust to the new environment and new school. The decision was issued on 17 November 2009. It was apparently given to the applicant mother only on 5 January 2010.

The applicant mother claims that, because the decision was issued ex post facto, she could not appeal against it.

3.  Reunification

The case file does not contain any information about efforts to reunite the parents and the child. Instead, the Administrative Court’s reasoning refers to the fact that the taking into public care was considered to be necessary for a longer period of time.

B.  Relevant domestic law

Section 40 of the Child Welfare Act (lastensuojelulaki, barnskyddslagen, Act no. 417/2007) stipulates, as regards the taking into public care, as follows:

“Duty to take a child into care and provide substitute care

Children must be taken into care and substitute care must be provided for them by the municipal body responsible for social services if

1) their health or development is seriously endangered by lack of care or other circumstances in which they are being brought up; or

2) they seriously endanger their health or development by abuse of intoxicants, by committing an illegal act other than a minor offence or by any other comparable behaviour.

Taking a child into care and provision of substitute care may, however, only be resorted to if

1) the measures referred to in Chapter 7 would not be suitable or possible for providing care in the interests of the child concerned or if the measures have proved to be insufficient

2) substitute care is estimated to be in the child’s interests in accordance with section 4.”

Section 34 of the same Act stipulates, as regards the obligation to provide open care, as follows:

“Obligation to provide support in open care

The municipal body responsible for social services must provide support in open care in accordance with this Chapter without delay if:

1) the circumstances in which the children are being brought up are endangering or failing to safeguard their health or development; or

2) the children’s behaviour is endangering their health or development.

The purpose of support in open care is to promote and support the child’s development and to support and enhance the upbringing skills and opportunities of the parents, custodians and persons responsible for the child’s care and upbringing.

Assistance in open care will be provided wherever possible in cooperation with the child and the parents, and with the custodians or other persons responsible for the child’s care and upbringing.”

Section 47 of the same Act stipulates, as regards the duration and termination of care, as follows:

“Duration and termination of care

Taking into care is valid indefinitely. When the need for care and substitute care under section 40 no longer exists, the municipal officeholder determined under section 13(1) and 13(2) must make a decision on terminating the care after the social worker responsible for the child’s affairs has prepared the case. Care must not be terminated even if the conditions for taking a child into care no longer exist if termination is manifestly not in the interests of the child in the manner referred to in subsection 3.

The social worker responsible for the child’s affairs must assess the conditions for continuing care when the client plan is reviewed, when a child or custodian applies for termination of care or when it otherwise proves necessary.

When a child’s interests are being considered in a case concerning termination or care, in addition to what is said in section 4(2), the following must be taken into account: the duration of substitute care, the quality of the affection between the child and the party providing substitute care, interaction between the child and the parents and the child’s views.

Care is terminated when the child concerned reaches 18 years of age.”

COMPLAINTS

The applicants complain under Article 8 of the Convention that, instead of supporting the applicant son with assistance in open care services, the social welfare authorities made a decision of urgent placement and taking into public care. The applicants also complain that the decision about contact rights on 17 November 2009 was issued only after considerable delay.

The applicants complain under Article 6 of the Convention that the proceedings for taking the applicant son into public care contained many formal errors: 1) the decision of urgent placement was made by a social welfare authority which was not competent to do so; 2) the applicant son was kept in a family support centre from 4 December 2008 to 3 June 2009 without a decision having been issued; 3) the application on 3 December 2008 by the social welfare authority to the Administrative Court was not complete. It did not include, inter alia, a report on charting of the network of persons close to the child; 4) it was difficult to obtain all the documents; 5) the authorities of the applicant son’s school did not handle the situation properly.

QUESTION TO THE PARTIES

Has there been an interference with the applicants’ right to respect for their family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2, in particular on account of the contact restrictions imposed and a possible failure to take effective measures with a view to reuniting the applicant son with his family?