Date when decision was rendered: 9.11.1998

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 3492; S98/917

Reference to source

Registry of the Supreme Court

Högsta domstolens registratorskontor

Korkeimman oikeuden kirjaamo

Date of publication:

Subject

kidnapping, children, right to be heard, fair trial,
kidnappning, barn, rätt att höras, rättvis rättegång,
kidnappaus, lapset, oikeus tulla kuulluksi, oikeudenmukainen oikeudenkäynti,

Relevant legal provisions

Child Custody and Right of Access Act

= lag angående vårdnad om barn och umgängesrätt

= laki lapsen huollosta ja tapaamisoikeudesta.

ECHR-6; CRC-12; 1980 Hague Convention on the Civil Aspects of International Child Abduction

Abstract

While a case concerning the custody of two children was pending before a court in the USA, the mother, who was Finnish, had in breach of the court's decision taken the children with her to Finland and refused to return them.With reference to the Convention on Child Abduction, the Supreme Court of Finland had ordered the return of the children to the USA (Report No. 3052; S97/1165; decision rendered 10 September 1997).The mother started an appeal procedure against the enforcement of the Supreme Court decision.The Vaasa Court of Appeal stated that the children had despite their age (7 and 6 years) attained the degree of maturity at which their views should be given due weight.Since the children objected to their return, the Supreme Court decision should not be enforced.

The father (an American) appealed to the Supreme Court.The Court discussed both national law, the Convention on the Rights of the Child (Article 12) and the Convention on Child Abduction.It noted that in corresponding cases in the other States Parties to the Convention on Child Abduction, children between 9 to 13 years of age had been regarded as having attained the degree of maturity at which their views should be taken into account.According to national law, the corresponding age was 12 years.Although exceptions could be made, the children in such cases had usually not been younger than 10 years.The Court concluded that the children in this case had not attained the degree of maturity in order for their views to be taken into account.It quashed the decision of the court of appeal and ordered the enforcement of its previous decision concerning the return of the children.The mother later appealed for the reversal of the Supreme Court decision but the appeal was rejected.

Before the court of appeal the mother had submitted that the father benefited from the fact that the court proceedings regarding custody took place in the USA.She claimed that she would not be able to defend her rights and there was a risk that the proceedings did not correspond to the principles put forth in Article 6 of the ECHR.The court of appeal rejected this claim.

23.10.2002 / 31.5.2006 / RHANSKI

Date when decision was rendered: 21.12.2004

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 2998; S2004/1008

Reference to source

KKO 2004:129.

Decisions of the Supreme Court 2004 II July-December

Avgöranden av Högsta domstolen 2004 II juli-december

Korkeimman oikeuden ratkaisuja 2004 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2005

Pages: pp. 821-835

Subject

respect for private life, respect for family life, children, kidnapping, right to be heard,
respekt för privatliv, respekt för familjeliv, barn, kidnappning, rätt att höras,
yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, lapset, kidnappaus, oikeus tulla kuulluksi,

Relevant legal provisions

section 46 of the Child Custody and Right of Access Act; sections 21 and 33-3 of the Act on the Implementation of the Child Custody and Right of Access Act; section 6-3 of the Constitution Act

= lag angående vårdnad om barn och umgängesrätt 46 §; lag om verkställighet av beslut beträffande vårdnad om barn och umgängesrätt 21 § och 33 § 3 mom.; grundlagen 6 § 3 mom.

= laki lapsen huollosta ja tapaamisoikeudesta 46 §; laki lapsen huoltoa ja tapaamisoikeutta koskevan päätöksen täytäntöönpanosta 21 § ja 33 § 3 mom.; perustuslaki 6 § 3 mom.

Convention on the Civil Aspects of International Child Abduction (1980); CRC-12; ECHR-8

Abstract

With reference to the Convention on Child Abduction, the Supreme Court had ordered the mother X, who resided in Finland, to return the two children, aged 13 and 10, to their father Y in the United States where the children had their habitual residence.In its decision, the Court found that the children's objection to being returned did not prevent their return to the United States in this case (decision of 5 August 2004, KKO 2004:76).For the enforcement of the Supreme Court decision the court of first instance ordered the bailiff to fetch the children.X appealed against the measure, claiming that the children did not want to return to the United States and that the bailiff had failed to take into account the views of the children.The Supreme Court noted that the Child Custody Act gives a bailiff in some cases a possibility to assess whether the child's objection should be taken into account when enforcing a return order.However, the bailiff's discretion is limited if the child's views have already been heard and the matter been decided by the court which issued the return order.With reference to the judgment of the European Court of Human Rights in the case of Sylvester v.Austria (judgment of 24 April 2003), the Supreme Court ruled that only a change in the relevant facts may exceptionally justify the non-enforcement of a return order, in particular if the child's ability to independent discretion has clearly developed or the child can put forth pertinent new grounds for his or her refusal.A repeated reassessment of the child's views tends to delay the enforcement of the return order, and this is against the main purpose of the Convention on Child Abduction, namely the prompt return of abducted children to the state of their habitual residence.The Court also noted that the European Court of Human Rights has in several cases found a breach of the right to family life owing to the failure of authorities to take adequate and effective measures to enforce a return order (e.g., Sylvester v.Austria mentioned above and Ignaccolo-Zenide v.Romania, judgment of 25 January 2000, Reports of Judgments and Decisions 2000-I).The Court took note of the fact that X had tried to prevent the enforcement of the return order by hiding the children.She had also brought the case to the attention of the media and it had been reported extensively.In the Court's opinion, there was reason to doubt that X through her actions had tried to influence the children in forming their views, and under the circumstances it was not possible to find out the genuine views of the children.Since the return order was issued no specific new reasons had emerged on the basis of which the children's objection to their return should have been assessed differently from the assessment made by the Supreme Court in August 2004.The Supreme Court also found that an additional hearing of the children was not necessary on the basis of the Convention on the Rights of the Child either.The Court ruled that the enforcement of the return order is to be completed and the children are to be returned to the United States.One concurring justice referred in particular to the Convention on the Rights of the Child and section 6-3 of the Constitution Act which prescribes that children shall be allowed to influence matters pertaining to themselves.In his opinion, a child has a right to be heard also in the enforcement of the return order, if possible.Hearing a child does not mean that the child has a right to a final decision in the matter.The concurring justice found that the children should have been heard by the Supreme Court in this case, irrespective of whether the grounds for their objection to return would in fact prevent their return or not.

25.4.2005 / 2.6.2006 / RHANSKI