Date when decision was rendered: 29.2.1996

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report No. 559; 52/5/95

Reference to source

KHO 1996-A-47.

Yearbook of the Supreme Administrative Court 1996 A, General Part

Högsta förvaltningsdomstolens årsbok 1996 A, allmän del

Korkeimman hallinto-oikeuden vuosikirja 1996 A, yleinen osa

Place of publication: Helsinki

Publisher: The Supreme Administrative Court

Date of publication: 1997

Pages: pp. 277-280

Subject

child welfare, parents, rights of the child, access to court,
barnomsorg, föräldrar, barnets rättigheter, rätt till domstolsprövning,
lastenhuolto, vanhemmat, lapsen oikeudet, oikeus tuomioistuinkäsittelyyn,

Relevant legal provisions

Sections 16, 17, 18, 35, 37 of the Child Welfare Act; section 3-1 of the Administrative Appeals Act

= barnskyddslag 16 §, 17 §, 18 §, 35 §, 37; lag om ändringssökande i förvaltningsärenden 3 § 1 mom.

= lastensuojelulaki 16 §, 17 §, 18 §, 35 §, 37 §; laki muutoksenhausta hallintoasioissa 3 § 1 mom.

ECHR-6-1

Abstract

The Supreme Administrative Court maintained the decision of the county administrative court.The county administrative court had rejected the appeal of a mother who had demanded the municipal social welfare board to take urgent action in order to take her child into custody.According to the mother, the child's health and development were seriously threatened due to the alcoholism and violent behaviour of the child's father.The social welfare board, which investigated the case, held that the requirements according to the Child Welfare Act for taking the child into custody were not fulfilled.The county administrative court referred, among other things, to the Article 6-1 of the ECHR in its decision to give leave to appeal against the decision of the social welfare board.

31.3.1998 / 11.4.2007 / RHANSKI

Date when decision was rendered: 15.6.1995

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2319; S 95/301

Reference to source

KKO 1995:110.

Decisions of the Supreme Court 1995 I January-June

Högsta domstolens avgöranden 1995 I januari-juni

Korkeimman oikeuden ratkaisuja 1995 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1995

Pages: pp. 466-469

Subject

rights of the child, marriage, child welfare, children,
barnets rättigheter, äktenskap, barnomsorg, barn,
lapsen oikeudet, avioliitto, lastenhuolto, lapset,

Relevant legal provisions

Sections 30 and 32 of the Child Custody and Right of Access Act

= lag angående vårdnad om barn och umgängesrätt 30 § och 32 §

= laki lapsen huollosta ja tapaamisoikeudesta 30 § ja 32 §.

1980 Hague Convention on the Civil Aspects of International Child Abduction

Abstract

A stated in the court of appeal that his wife B had without his agreement in 1993 brought their two common children (born 1987 and 1989) from the family's home in Switzerland to Finland.A claimed that B had thereby violated his right as a father to care for the children.He demanded that the court of appeal, on the basis of sections 30 and 32 of the Child Custody and Right of Access Act, order that B had to return the children to A in Switzerland immediately.The court of appeal found that A and B had temporarily agreed that the children would live with B in Finland.As it had not been shown that B would have been forced into making the agreement, A must be regarded as having accepted, in accordance with sections 30 and 32 of the Act of the Child Custody and Right of Access Act, that the children would not be returned to him.The court of appeal the refore rejected the claims.

A appealed to the Supreme Court, repeating his claims.He stated that his wife B had alcohol problems and had received hospital treatment for depression at several occasions.In November 1993, she had, without agreeing with him on the matter, taken the children with her to Finland where she intended to seek treatment for her alcohol problems.After the treatment, B stayed on in Finland with the children, and informed A that she would not return the children to A.According to his statement, A had made the temporary agreement only in order to be allowed to visit the children in Finland.

The Child Custody and Rights of Access Act incorporates the provisions of the Hague Convention on International Child Abduction.Section 30 of the Act requires that a child illegally abducted to Finland from his or her residence in another Contracting State must be returned to that state.Illegal abductions are defined in section 32 as the taking away or non-return of children in violation of the right of the guardian to take care of the child according to the law in the country where the child had its residence immediately before the abduction, provided that the guardian was in fact using this right at the time of the abduction.Switzerland is a party to the Hague Convention.According to the Act, it applies to children abducted to Finland even if the child was brought to the country before the entry into force of the Act, which was the case here.

The Supreme Court concluded that A had and used the right to care for the children when they were taken away by B.The temporary agreement, which invested the care of the children with their mother until further agreement, was made under the supervision of the social authorities and with the assistance of lawyers.It had not been shown that A would have been forced to sign the agreement.The fact that he would probably not have been able to see his children during his visit in Finland had he not signed the agreement did not affect the binding nature of the agreement.Neither did the fact that A claimed that he was unaware of his rights under the Child Custody and Rights of Access Act when signing the agreement affect the outcome of the case.A had not shown any other grounds rendering the agreement void.A was therefore to be regarded as having accepted, in accordance with section 32-2 of the Act, by means of the aforementioned agreement that the children would not be returned.The taking away of the children was thereby not illegal.The Supreme Court upheld the decision of the court of appeal.

8.4.1998 / 31.5.2006 / RHANSKI

Date when decision was rendered: 29.6.1998

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report No. 1228 (483/3/97)

Reference to source

KHO 1998:28.

Yearbook of the Supreme Administrative Court 1998 January-June

Högsta förvaltningsdomstolens årsbok 1998 januari-juni

Korkeimman hallinto-oikeuden vuosikirja 1998 tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Administrative Court

Date of publication: 1998

Pages: pp. 169-179

Subject

children, best interests of the child, child welfare, respect for family life,
barn, barnets bästa, barnomsorg, respekt för familjeliv,
lapset, lapsen etu, lastenhuolto, perhe-elämän kunnioittaminen,

Relevant legal provisions

Child Welfare Act

= barnskyddslag

= lastensuojelulaki.

ECHR-8; CRC-3; CRC-9; CRC-20

Abstract

A was a single parent.Despite the assistance of the social welfare authorities, she had had serious difficulties in taking care of her child.At her own initiative A gave the child up for adoption.The child, which at the time was 18 months old, was placed in a foster family for the purpose of a future adoption.Some six months later A regretted her decision and wanted the child back.Meanwhile she had also married.The social welfare board transferred the guardianship of the child to itself and decided that the child would stay with the foster parents.The decision was submitted to the approval of the county administrative court.A asked the court to quash the decision of the social welfare board and wanted the custody of the child to herself.With reference to the Child Welfare Act, the court rejected A's appeal and affirmed the decision of the board.A appealed to the Supreme Administrative Court which also affirmed the board's decision regarding the custody of the child.However, the Court also noted that A's situation had changed since she gave her child up for adoption: she had married and during the appeal procedure had had another child.The Court stated that, as a rule, a transfer of guardianship is a temporary measure.Although the social welfare board had the guardianship of the child, the child could be temporarily placed in the care of the biological mother, provided, however, that the family receive the necessary assistance and support from the social welfare authorities.

Two judges submitted dissenting opinions.The appeal procedure had taken almost three years.Meanwhile, the child had established a warm and safe relationship with the foster parents.Therefore, it was in the best interests of the child to stay with the foster parents.In addition to national legislation, one dissenting judge made a general reference to international treaties binding on Finland.The other dissenting judge also referred to Article 8 of the ECHR and to Articles 3, 9 and 20 of the Convention on the Rights of the Child.

23.10.2002 / 4.4.2003 / LISNELLM

Date when decision was rendered: 15.6.1998

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 1933; S97/1206

Reference to source

KKO 1998:66.

Decisions of the Supreme Court 1998 I January-June

Avgöranden av Högsta domstolen 1998 I januari-juni

Korkeimman oikeuden ratkaisuja 1998 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1998

Pages: pp. 373-377

Subject

fair trial, public hearing, best interests of the child, children, child welfare,
rättvis rättegång, offentligt förhör, barnets bästa, barn, barnomsorg,
oikeudenmukainen oikeudenkäynti, julkinen menettely, lapsen etu, lapset, lastenhuolto,

Relevant legal provisions

sections 9, 10-1 and 14 of the Child Custody and Right of Access Act

= lag angående vårdnad om barn och umgängesrätt 9 §, 10 § 1 mom. och 14 §

= laki lapsen huollosta ja tapaamisoikeudesta 9 §, 10 § 1 mom. ja 14 §.

ECHR-6

Abstract

A had been convicted to six years of imprisonment for killing his wife B.On the night of the incident, B's mother D had taken care of A's and B's common child C (4 years old during the proceedings).Later, the social welfare board decided to take C into care and to place her in a foster home and, by a later decision, in a children's home.

D, her daughter E and E's husband F had submitted a motion to the Turku of first instance according to which D should be granted custody of C and E and F should be appointed C's secondary guardians.The court of first instance referred to section 14-1 of the Child Custody and Right of Access Act, according to which a case concerning custody of a child is instituted by an application made by the parents together, by one of the parents, by the child's guardian or by the social welfare board.If the child has been left without a guardian, such an application may also be made by a relative or another person with a close relationship with the child (section 14-2).According to the court of first instance, although the right to take legal action was thus restricted, there was no contradiction between this provision and Article 6 of the ECHR.Although A had been sentenced to imprisonment, he nevertheless was C's legal guardian under the Child Custody and Right of Access Act.Therefore D, E or F, according to the court, did not have the right to demand custody of C.Their application was dismissed.

D, E and F appealed to the court of appeal.The court of appeal referred to section 9 of the above-mentioned Child Custody Act according to which a child's custody may for extremely weighty reasons be granted to someone else than the child's parents.The crime A had committed showed that he was permanently incapable of taking care of a child.The court concluded that the best interests of the child would not be taken into account sufficiently, if the application of D, E and F was not heard before a court.A dissenting member of the court held with the decision of the court of first instance.

A and the social welfare board appealed to the Supreme Court.In its decision the Supreme Court noted, that under the Child Custody and Right of Access Act, A is C's legal guardian and the relatives had no right to take legal action in the case under section 14-1 of the Act.There was also no need to give section 14-1 a wide interpretation, as prohibiting A, once having served his sentence, from acting as C's guardian.The social welfare board has a legal obligation, if necessary, to take action, in order to secure that the care of a child is arranged according to the best interests of the child.

The Supreme Court noted that when interpreting the provisions on the right to take legal action, regard should be taken of the provisions of the Constitution Act and the ECHR.Also in the light of these provisions it is acceptable that relatives have the right to take legal action in custody cases only if the child has been left without a guardian.Restricting the right to take legal action is in the best interests of a child, in preventing the child from being involved in any possible discrepancies between the people that are close to the child.

The Supreme Court quashed the decision of the court of appeal and upheld the decision of the court of first instance.

23.10.2002 / 31.5.2006 / RHANSKI

Date when decision was rendered: 28.12.2004

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report No. 3391; 3045/3/03

Reference to source

KHO 2004:121.

Yearbook of the Supreme Administrative Court 2004 July-December

Högsta förvaltningsdomstolens årsbok 2004 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2004 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2008

Pages: pp. 572-579

Subject

respect for private life, respect for family life, limitations of rights and freedoms, best interests of the child, children, child welfare,
respekt för privatliv, respekt för familjeliv, inskränkningar av friheter och rättigheter, barnets bästa, barn, barnomsorg,
yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, oikeuksien ja vapauksien rajoitukset, lapsen etu, lapset, lastenhuolto,

Relevant legal provisions

sections 1, 2-1, 9-1, 10, 12 and 16 of the Child Welfare Act

= barnskyddslagen 1 §, 2 § 1 mom., 9 § 1 mom., 10 §, 12 § och 16 §

= lastensuojelulaki 1 §, 2 § 1 mom., 9 § 1 mom., 10 §, 12 §.

ECHR-8; CRC-3; CRC-9; CRC-20

Abstract

The social welfare board had taken B into care and had placed her in a children's home.B, who was 13 years of age, had occasionally used alcohol and had had outbursts of violent behaviour.She also tended to disobey her mother A, who was a single parent of six children.The social welfare authorities had provided economic assistance and counselling for the family.In the opinion of the social welfare board, assistance in open care had proved inadequate and taking B into care was necessary as the circumstances in the family along with B's own behaviour threatened to endanger her health and development.A and B objected to the decision, but the administrative court agreed with the social welfare board.

The Supreme Administrative Court emphasized that the primary purpose of child welfare was to support the parents in upbringing their child, in the first place by means of assistance in open care.If such assistance is not appropriate or has proved inadequate, the child may be taken into care.In that case, in addition to national legislation, the relevant provisions of the Convention on the Rights of the Child and the ECHR must be taken into account.With reference to the decision of the European Court of Human Rights in the case of Couillard Maugery v.France (judgment of 1 July 2004), the Supreme Administrative Court noted that separating a family constitutes a serious interference with the right to family life.Therefore, such a measure has to be based on the best interests of the child and on weighty and justified grounds.The Court found that in B's case the social welfare board had not sufficiently considered other possible means of assistance.B had, for example, suggested that she could live with her uncle and his family.The Court ruled that it had not been shown in this case that assistance in open care had proved inadequate or that such assistance had not been appropriate or possible.In the Court's view, the requirements for taking a child into care as prescribed in section 16 of the Child Welfare Act had not been fulfilled.The Supreme Administrative Court quashed the decisions of the administrative court and the social welfare board and returned the case to the board for a new consideration.

25.4.2005 / 3.7.2009 / RHANSKI