CEDH · CASELAW;CLIN;ENG — 9 mai 2006

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Finland - 18249/02 Judgment 9.5.2006 [Section IV] Article 8 Article 8-1 Respect for family life Granting by the Supreme Court of custody over two children to person with whom they were living, instead of the father, given the preference expressed by the children to stay with this person: violation   Facts : The applicant, a British national, lived with his former wife, a Finnish national, and their two children in Switzerland until the couple separated. The mother returned to Finland with the children and took up residence with a female partner, L. After a longstanding custody dispute, which culminated in a decision of the Finnish Supreme Court in 1997, the mother was granted sole custody of the children. At the time, the applicant had lodged an application with the Court which was rejected. The present application concerns the fate of the children after the death of the mother in 1999. Both the applicant and L. applied for their custody. The District court, and later the Court of Appeal, both granted custody to the applicant. Although the children had expressed their wish to live with L. and feared moving back to Switzerland, the courts considered that the strained relationship between the applicant and L. had influenced their view, and concluded that a relationship between the children and the applicant was important for their well-balanced development. However, the Supreme Court overturned the lower courts’ judgments on the basis that under domestic legislation they would be unenforceable in light of the children’s ages (14 and 12) and their expressed wish to remain with their mother’s partner. It did so without holding an oral hearing or re-hearing the evidence presented before the lower courts, and not finding it necessary to seek a further psychological examination as requested by the applicant. Law : Article 8 – Refusal of custody: Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of parents and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article   8 of the Convention to have measures taken that would harm the child’s health and development. It was therefore entirely in keeping with the principles outlined above that the Finnish courts examined whether the children’s best interests lay in remaining with L. or with the applicant as being awarded custody. That said, notwithstanding the past and continuing acrimony between the adults which took its toll on the children, there was no finding by the domestic courts that the applicant was in any way unfit as a father or not capable of providing for their needs and putting their interests first. Although it is true that it is the function of higher appellate courts to review, and if necessary quash, lower court decisions and the mere fact that they might take a different view does not, in itself, raise any issues, the Court must nonetheless, given the importance of the Supreme Court’s decision for the applicant, examine whether it was supported by relevant and sufficient reasons. The Court considers that it cannot satisfactorily assess whether those reasons were “sufficient” for the purposes of Article 8(2) without at the same time determining whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests. Firstly, the Supreme Court gave decisive weight to the children’s expressed wishes that they remain with L. in Finland, referring to legislation which prevented the enforcement of decisions against the will of children over the age of 12. It is generally accepted that courts must take into account the wishes of children in such proceedings. It must be noted that all court instances in this case essentially agreed as to the consistency and strength of the children’s views. The reasons relied on by the Supreme Court were clearly relevant therefore. The weight to be attached to the children’s’ views was, however, an issue which had been examined in some depth in the proceedings in the lower courts which assessed that, notwithstanding their wish to remain with L., it was in their best interests for custody to be given to the applicant, their father. The Court of Appeal indeed emphasised that it was not bound to follow the opinions of a child even where aged 12 or more. The Supreme Court, however, placed exclusive weight on the views expressed by the children without considering any other factors, in particular the applicant’s rights as a father, effectively giving the children, who had both reached the age of 12, an unconditional veto power, and reversing the decisions which had hitherto been in the applicant’s favour. Furthermore it did so without holding an oral hearing in which it might invite the parties to address the matter or without taking any steps to clarify, through further evidence or expert opinion, any divergent interpretation of the evidence or whether greater harm would be caused to the children’s welfare by a decision in the applicant’s favour than a decision in L’s favour which would effectively deprive them of a relationship with their father. The decision was reached in a manner which understandably left the applicant with the impression that L., the mother’s partner, had been allowed to manipulate the children and the court system to deprive him unjustifiably of his parental role. Violation . Article 8 – Refusal of access: Contact visits did take place successfully during the District Court proceedings but that during the Court of Appeal proceedings and pending its order for the transition of custody attempts contact meetings were attended by various difficulties. By this time, for whatever reason, the children were refusing to meet with him alone and the applicant resisted any suggestion of L.’s participation in visits. Against that background, the Court considers that the Supreme Court’s refusal of interim access visits may be regarded as supported by relevant and sufficient reasons. As regards the failure of the Supreme Court to provide for contact after its own decision giving custody to L., it does not appear that the applicant had made any application for such or that he has made subsequent application before the courts. Against the background of the children’s continued resistance it might well be that there would also be relevant and sufficient reasons for a decision refusing to given defined contact. Until however the courts rule on an application by the applicant the matter is somewhat speculative – no violation . Article 6 – No separate issue. Article 41 – Pecuniary damage, claim rejected as unrelated to violation found – Non-pecuniary damage, EUR 10,000 – Costs and expenses, claim accepted in part.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes