K. and T. v. Finland

Applicants were two Finnish Nationals, a mother (K.) and her cohabitant (T.). K., a diagnosed schizophrenic, had a history of hospitalization. At the time K. and T. began cohabitating in 1991, K.’s daughter (P.) and son (M.) were living with her. The children had different fathers, neither of whom was T. In 1992, custody of P. was transferred to her father. After M. started exhibiting behavioral problems associated with his unstable home situation due to K.’s illness, the Social Welfare Board placed him in a children’s home in 1993. The placement was to be a 3-month, short-term assistance measure and there was no objection to the placement by K.

During this period, K. was pregnant with her third child (J.), her first by T. In June of 1993, concerned about the health of K. and her baby, social welfare officials served on emergency care order on the hospital and J. was placed in public care shortly after birth. K. and T. were informed of the Social Welfare Board’s decision after the birth. K.’s mental state had been deemed unstable during her pregnancy and the Board decided telling her their decision prior to the birth would endanger her child’s health. The board had also concluded that T could not guarantee the well-being of the child. The applicants were not heard prior to the decision. A few days after J.’s birth, M. was also placed in emergency care for similar reasons. K. was not allowed to visit her children unsupervised. The emergency care orders were replaced with “normal” public care orders which continued the access restrictions K. and T. expressed their objections to the care decisions.

T. was allowed to regularly visit J. and home leaves were granted with the intention that J. could eventually move in with her father. However, upon a further review of the children’s public care orders due to K. and T.’s objections, the County Administrative Court confirmed both children’s’ orders finding that the family situation had not sufficiently improved. No hearing was held. The Supreme Administrative Court rejected the subsequent appeals by K. and T. The “normal” care was implemented and the children were moved to a foster home 120 km away, despite K. and T.’s proposal that the children could be placed in the homes of relatives. The applicants’ proposals concerning the implementation of the public care, including a request that the arrangements in the plan should aim to reunite the family were allegedly ignored.  T.’s continued relationship with K., was of concern to the Social Welfare Board, despite T.’s responsible care of J. during visitation.

In May of 1994, both K. and T.’s visitation rights were reduced to one monthly supervised visit to the foster home. K. and T.’s appeal of this restriction were rejected formally despite the Social Director telling them there was no longer any grounds for the restriction. In the same month K. and T. requested that the care orders in general be revoked. This request was formally rejected. One month later K. gave birth to her fourth child, R. Shortly after giving birth, K. wandered out of the hospital with the baby on a cold night, however staff were able to intervene and K. was committed to compulsory psychiatric care one week later. Despite an allegation that the Social Director informed the applicants that any further children would be placed in public care, R. remained with T.

Over the next few years the care plan underwent several revisions, but the once-a-month, supervised visit restriction was upheld. This continuation of the restriction was in spite of repeated appeals, no concerns regarding the care of R., and a statement by K.’s physician that her health had been stable for several years. In 1998 the Social Director found that the reunification of the family was not in sight, the foster family was now the children’s de facto home, and that once a month visits were sufficient to maintain the children’s awareness of their biological parents. In 2000, the applicants’ most recent appeal was denied, however the Social Welfare Board permitted once a month visits without supervision.

This case originated in 1994 when K. and T. filed an application with the European Commission of Human Rights against the Republic of Finland, but was transferred to the European Court when the Commission was dissolved. The lower chamber of the Court found the decision to take the children into public care and the refusal to take proper steps to in order to reunite the family were a violation of Article 8, which protects the right to respect for family life The chamber found no violation of Article 13. The Finnish government requested that the case be referred to the Grand Chamber for a review of the finding of an amendment 8 violation.

The Court held:

• that there had been a violation of Article 8 (right to respect for family life) of the Convention regarding the emergency care order concerning only child J.
• that there had been no violation of Article 8 in respect of the emergency care order concerning M.
• that there had been no violation of Article 8 in respect of the normal care orders in respect of either J. and M.
• that there had been a violation of Article 8 in respect of the a failure to take proper steps to reunite the family
• that there had been no violation of Article 8 in respect of current access restrictions
• that there had been no violation of Article 13 (right to an effective remedy).

The Court held that it could review the whole admissible case and not merely the “serious question” that is a prerequisite for review of the lower chamber’s decision.

Violations of Article 8:

The Court held that K., T., M. and J. constituted a family. The Court noted that Article 8’s consideration of “family life” is a factual question dependent on close personal ties. Even prior to J.’s birth, K., T. and M. “had formed a family with a clear intention of continuing their life together.”

The Government openly acknowledged interferences under Article 8, so the Court assessed each government measure separately to see if all of them were “necessary in a democratic society.”

Regarding the emergency care orders:

The Court held the emergency order regarding J. could not be considered necessary, while the emergency order regarding M. could have been. The Court considered the emergency orders for M. and J. separately. The court acknowledged not informing K. beforehand was reasonable due to potentially dangerous consequences, and that including just T. in the decision-making was not a realistic option. However, the Court found that the “extraordinarily compelling reasons” needed to justify a measure as harsh as removing a newborn from its mother, were lacking. The authorities did not first consider other less intrusive interference. Regarding M. however, the court found that emergency order to be less intrusive as M. was already separated from K. and was made for a limited period of time.

Regarding the normal care orders:

The Court found the authorities’ decision to place the children in public care justified based on the family situation, did not find the normal care orders to not be particularly harsh or exceptional, and found that K. and T. were properly involved in the decision-making process. The reasons for taking both children into public care satisfied the paragraph 2 provision and there was thus no violation of Article 8.

Regarding the alleged failure to take proper steps to reunite the family:

The Court found a violation with Article 8 regarding the lack of sufficient steps towards possible family reunification. The Court noted that care orders should be discontinued as soon as circumstances permit and that there is a positive duty on the state to facilitate family reunification. The State’s actions fell far short by not even doing the minimum of having regular reviews of the circumstances to assess whether a care order was still needed. Furthermore, the Court found that the imposed visitation restrictions actually hindered reunification.

Regarding the access restrictions and prohibitions:

The Court found no violation of Article 8 due to the access restrictions. It removed the aspect of the access restriction covered under the previous measures, and noted only the present situation, including the time since the delivery of the lower chamber’s decision. The Court noted that the best interests of the child must be taken into account, and if contact with the parents may threaten those interest, it is acceptable for the authorities to “strike a balance” between them and the interests of the parents’.

Violations of Article 13

The Court, agreeing with the lower chamber’s finding, held that there was no violation of Article 13. Though K. and T.’s appeals to welfare authorities were unsuccessful, the effectiveness of a remedy does not depend on the certainty of a favorable outcome, and the option to appeal was available to them as a remedy. The chambers considered other remedies pointed out by the Government that could provide an effective remedy.

“There must be extraordinarily compelling reasons before a baby can by physically removed from the care of its mother, against her will, immediately after birth as a consequence of a procedure in which she nor her partner has been involved.” (Para. 168)

“The fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents’ right under Article 8 of the Convention to enjoy a family life with their child. . . . In a situation in which, as detailed in the medical and social reports, the mother of the children was seriously mentally ill, there were social problems in the family and the prospects for the healthy development of the children in foster care appeared far more positive than the expected development in the care of their biological parents, the authorities could reasonably base the contested decisions on the assessment that was made of what was in the best interests of the children.” (Para. 173)

“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 children are not allowed to meet each other at all, or only so rarely that no natural bonding between them is likely to occur. The restrictions and prohibitions imposed on the applicants’ access to their children, far from preparing a possible reunification of the family, rather contributed to hindering it.” (Para. 179)

“[W]hilst national authorities must do their utmost to facilitate reunion of the family, any obligation to apply coercion in this area must be limited since the best interests of the child must be taken into account. Where contacts with the parents appear to threaten those interests, it is for the national authorities to strike a fair balance between them and those of the parents.” (Para. 194)