![[Sökformulär]](http://trip.abo.fi/icon/sok.gif){kind=icon}
![[Info om databasen]](http://trip.abo.fi/icon/info2.gif){kind=icon}
![[Söktips]](http://trip.abo.fi/icon/soktips.gif){kind=icon}
| [1 / 18] |
Date when decision was rendered: 22.12.1992 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 4813, 5819/7/92 Reference to source KHO 1992-A-63. Yearbook of the Supreme Administrative Court 1992, A General Part Högsta förvaltningsdomstolens årsbok 1992, A allmänna delen Korkeimman hallinto-oikeuden vuosikirja 1992, A yleinen osa Place of publication: Helsinki Publisher: The Supreme Administrative Court Date of publication: 1993 Pages: pp. 207-209 Subject
respect for family life,
deportation,
rights of the child,
Relevant legal provisions Sections 1-3 and 41-1 of the Aliens' Act = utlänningslag 1 § 3 mom., 41 § 1 mom. = ulkomaalaislaki 1 § 3 mom., 41 § 1 mom. ECHR-8 Abstract Article 8 of the ECHR was cited in a judgment overruling the decision of the Ministry of the Interior to expel an Estonian family who was residing in Finland without a visa or a residence permit. The Estonian family had come to Finland, invited by an organisation that had established a temporary school for children from the Chernobyl area.In April 1991, the family requested asylum and residence permits in Finland.Neither application was granted.The Ministry of the Interior decided to expel them.The father of the family had found a company willing to employ him, the family had been set up in an apartment and both children went to school.The family members could speak Finnish.The younger child had a chronic illness, and his health had clearly improved during the stay as he had received proper treatment in Finland.According to the Supreme Administrative Court, the family was staying in Finland without a visa or a residence permit.After referring to their rather lengthy stay in the country, their circumstances, and their connections to Finnish society, the Court took the position that there was not sufficient reason to expel the family, taking into account relevant provisions of the Aliens' Act and Article 8 of the ECHR.The decision of the Ministry was overruled. 25.3.1998 / 2.3.2017 / RHANSKI
|
|
|
|
| [2 / 18] |
Date when decision was rendered: 13.5.1993 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1725; S91/1301 Reference to source KKO 1993:58. Decisions of the Supreme Court 1993 I January-June Avgöranden av Högsta domstolen 1993 I januari-juni Korkeimman oikeuden ratkaisuja 1993 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1994 Pages: pp. 224-259 Subject
respect for family life,
non-discrimination,
rights of the child,
Relevant legal provisions Section 7-2 of the Implementing Act of Paternity Act = lag ang. införande av lagen om faderskap 7 § 2 mom. = laki isyyslain voimaanpanosta 7 § 2 mom. ECHR-8, ECHR-14, CRC-7 Abstract The case dealt with the establishment of paternity.As Mrs.B was married to Mr.C in 1975 when the child A was born, C was regarded as A's father on the basis of legal presumption.Actually Mrs.B had already in 1975 lived together with Mr.D, and the couple was married in 1976, two months after C and B were divorced.In 1977, Mr.D died.There existed medical evidence strongly suggesting the paternity of D.In 1990, C's paternity was nullified by a court.Because of the fact that A was born before the 1975 Paternity Act entered into force, the death of D precluded, according to the explicit wording of section 7-2 of the Implementing Act of the 1975 Paternity Act, the possibility of instituting paternity proceedings.According to the Supreme Court, such a conclusion would be problematic in light of several human rights treaty provisions, including those on non-discrimination, the right to family life and the child's right to know his or her parents.According to the majority of 3 justices, a literal interpretation of the Implementing Act would cause unjustified inequality.The ratio legis of the Act could be realised only by deviating from its wording, that is, by allowing A to institute court proceedings for the establishment of the paternity of the late D.According to the majority, such an interpretation was in harmony with the principle illustrated by Article 7 of the CRC and Article 14 of the ECHR in conjunction with Article 8 of the ECHR.One justice, concurring, referred also to the equality clause in section 5 of the 1919 Constitution Act, to Article 6 of the ECHR, and to Article 8 of the CRC.He stated: "... taking particularly into account the provisions of the above-mentioned conventions, falling within the legislative sphere and having been incorporated into domestic law through Acts of Parliament Nos. 438 of 1990 and 1129 of 1991, which have been enacted later in time than the Implementing Act on the Paternity Act, I am of the opinion that section 7, paragraph 2 of the Implementing Act, restricting action in cases of death [of the potential father] is applicable in the case of A."One justice, also concurring, would have decided the case without any reference to human rights treaties or to the Constitution. 26.3.1998 / 11.4.2007 / RHANSKI
|
|
|
|
| [3 / 18] |
Date when decision was rendered: 10.2.1993 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 419; 4149/7/92 Reference to source KHO 1993-A-29. Yearbook of the Supreme Administrative Court 1993 A, General Part Högsta förvaltningsdomstolens årsbok 1993 A, allmän del Korkeimman hallinto-oikeuden vuosikirja 1993 A, yleinen osa Place of publication: Helsinki Publisher: The Supreme Administrative Court Date of publication: 1994 Pages: pp. 96-99 Subject
respect for family life,
deportation,
children,
health care,
rights of the child,
Relevant legal provisions Sections 1-3 and 41-1 of the Aliens' Act = utlänningslag 1 § 3 mom., 41 § 1 mom. = ulkomaalaislaki 1 § 3 mom., 41 § 1 mom. ECHR-8 Abstract The expulsion order concerning an Estonian family with several ties to Finnish society, and with a sick child enjoying a proper diet in Finland, was quashed.The Ministry of the Interior had decided to expel the family because they were staying in Finland without a visa or a residence permit.Taking into account the various ties of the family members to Finland and the provisions in Article 8 of the ECHR, the Supreme Administrative Court considered that there did not exist sufficient reason to expel the persons in question.(A vote 4-1) 26.3.1998 / 2.3.2017 / RHANSKI
|
|
|
|
| [4 / 18] |
Date when decision was rendered: 6.10.1993 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 3770; 584/7/93 Reference to source KHO 1993-A-27. Yearbook of the Supreme Administrative Court 1993 A, General Part Högsta förvaltningsdomstolens årsbok 1993 A, allmän del Korkeimman hallinto-oikeuden vuosikirja 1993 A, yleinen osa Place of publication: Helsinki Publisher: The Supreme Administrative Court Date of publication: 1994 Pages: pp. 91-93 Subject
respect for family life,
deportation,
children,
rights of the child,
Relevant legal provisions Section 6-1-3 of the Act on Extraordinary Appeal in Administrative Matters = lag om extraordinärt ändringssökande i förvaltningsärenden 6 § 1 mom. 3 punkten = laki ylimääräisestä muutoksenhausta hallintoasioissa 6 § 1 mom. 3 kohta Abstract The Supreme Administrative Court granted an extraordinary remedy by annulling its own earlier decision that had upheld the expulsion order of a Romanian family.The birth of a new family member who was not personally mentioned in the expulsion order was regarded as a new fact that could affect the outcome of the case, taking into account Finland's commitments to protect the unity of the family, to respect family life and to consider the best interests of the child, expressed in international treaties binding on Finland.In spite of the fact that the expulsion order had already been implemented, the order was annulled and the expulsion case returned to the Ministry of the Interior.(A vote 4-1) 26.3.1998 / 2.3.2017 / RHANSKI
|
|
|
|
| [5 / 18] |
Date when decision was rendered: 6.10.1993 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 3769; 1492/7/93 Reference to source KHO 1993-A-28. Yearbook of the Supreme Administrative Court 1993 A, General Part Högsta förvaltningsdomstolens årsbok 1993 A, allmän del Korkeimman hallinto-oikeuden vuosikirja 1993 A, yleinen osa Place of publication: Helsinki Publisher: The Supreme Administrative Court Date of publication: 1994 Pages: pp. 93-96 Subject
deportation,
children,
respect for family life,
rights of the child,
Relevant legal provisions Section 6-1-3 of the Act on Extraordinary Appeal in Administrative Matters = lag om extraordinärt ändringssökande i förvaltningsärenden 6 § 1 mom. 3 punkten = laki ylimääräisestä muutoksenhausta hallintoasioissa 6 § 1 mom. 3 kohta Abstract The Supreme Administrative Court granted an extraordinary remedy by annulling its own earlier decision that had upheld the expulsion order of a Russian family.The birth of a new family member who was not personally mentioned in the expulsion order was regarded as a new fact that could affect the outcome of the case, taking into account Finland's commitments to protect the unity of the family, to respect family life and to consider the best interests of the child, expressed in international treaties binding on Finland.The expulsion case was returned to the Ministry of the Interior.(A vote 4-1) 26.3.1998 / 2.3.2017 / RHANSKI
|
|
|
|
| [6 / 18] |
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,
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
|
|
|
|
| [7 / 18] |
Date when decision was rendered: 26.9.1997 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 2389; 1135 and 1136/3/97 Reference to source KHO 1997:96. Yearbook of the Supreme Administrative Court 1997 July-December Högsta förvaltningsdomstolens årsbok 1997 juli-december Korkeimman hallinto-oikeuden vuosikirja 1997 heinä-joulukuu Place of publication: Helsinki Publisher: The Supreme Administrative Court Date of publication: 1998 Pages: pp. 137-140 Subject
aliens,
children,
deportation,
rights of the child,
Relevant legal provisions Section 41-1 of the Aliens Act = utlänningslag 41 § 1 mom. = ulkomaalaislaki 41 § 1 mom. CRC-3-1 Abstract A, who was an alien, had obtained a temporary residence permit in order to study at a university.Later his wife and his two minor children, who were also foreign citizens, had followed him to Finland and were granted temporary residence permits.As A did not make much progress in his studies, the residence permits of A and his family were not renewed.A and his family resided in the country without the required residence permit.The Directorate of Immigration gave an expulsion decision.A lodged an appeal with the Supreme Administrative Court.The Supreme Administrative Court stated that the family had lived in Finland for over six years and had during that time adapted themselves to Finnish society and way of life.The elder child went to Finnish elementary school, the younger child was at a day-care centre.The children had no ties to their country of origin.The family members spoke Finnish and they had relatives in Finland.A and his wife had a business of their own and thus their income was at least partially secured.A had expressed an interest in the continuation of his studies.Taking into account the best interest of the children and considering the circumstances of the family as a whole, there was no adequate cause to expel the family.The Supreme Administrative Court quashed the decision of the Directorate of Immigration.In its decision the Court referred to Article 3-1 of the Convention on the Rights of the Child. 2.4.1998 / 2.3.2017 / RHANSKI
|
|
|
|
| [8 / 18] |
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,
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
|
|
|
|
| [9 / 18] |
Date when decision was rendered: 10.9.1997 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 3052; S97/1165 Reference to source Registry of the Supreme Court Högsta domstolens registratorskontor Korkeimman oikeuden kirjaamo Date of publication: Subject
children,
child abuse,
rights of the child,
parents,
Relevant legal provisions Sections 30, 32 and 34 of the Child Custody and Right of Access Act = lag angående vårdnad om barn och umgängesrätt 30 §, 32 §, 34 § = laki lapsen huollosta ja tapaamisoikeudesta 30 §, 32 §, 34 §. 1980 Hague Convention on the Civil Aspects of International Child Abduction Abstract A asked the court of appeal to order B to return their common children whom she had brought from the USA to Finland without his agreement.A claimed that B had violated his rights as a father to care for the children.In her response, B objected, stating that A had physically abused the children and that A and B had agreed that she had the custody of the children.She also stated that no permanent residence had come to existence in the USA.A denied the statements in B's response, claiming that the "habitual residence" of the children mentioned in the Hague Convention of 1980 on the Civil Aspects of International Child Abduction was in the USA. The Child Custody and Right 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. The court of appeal agreed that the bringing of the children to Finland was unlawful under section 32 of the Child Custody and Right of Access Act.However, A's violent behaviour towards the children and B as well as the fact that B could not return to the USA with the children due to a violation of visa requirements implied a danger that the children would risk physical and mental damage if returned to the USA.This constituted such a ground justifying denial to return the children as is laid down in section 34-1-2 of the Child Custody and Right of Access Act.The court therefore rejected the a pplication. A appealed to the Supreme Court, repeating his claims.B's request for an oral hearing was rejected by the Court as the Court was not considering the issue of the custody of the children but of their return to the state from which they had been unlawfully taken.The Court stated that the Hague Convention aims at hindering parties to disputes concerning children from changing the legal venue of the case.Statements relating to personal characteristics should be considered in a forum at the common place of residence of the family.Contracting States are regarded as being able to provide for the security of the children.The court can refuse to order the return of abducted children only on the basis of the grounds laid down in the Act, which has to be interpreted and applied so as not to endanger the objective of the Hague Convention. The Supreme Court stated that it had been shown that B had unlawfully brought her and A's children from their place of residence.While B still lived with the children in the USA, the question of the custody of the children was under consideration in a state superior court, which temporarily decided on the custody of the children and prohibited that they be brought outside a certain geographical area.During the trial the children lived with A.When B brought the children to Finland, she violated the court order, and an arrest order for her was issued.Later the same court ordered the care of the children to be entrusted with A.B was according to the decision only allowed to see the children in the presence of a professional visitation supervisor chosen by A. The Supreme Court also considered the question whether there was a danger that the children would risk physical and mental damage if returned to the USA.This would constitute a ground justifying a denial to return the children as laid down in section 34-1-2 of the Child Custody and Right of Access Act.The Court found that the evidence presented in the court of appeal mainly showed that A was unsuitable to care for the children and that it related primarily to events prior to the family's move to Finland, not that the children would run a serious risk of being subject to physical and mental damage if returned to the USA.The court also took into account that the American lawyer appointed to safeguard the children's interests in the American court had assured that she would see to the safety of the children.The uncertainty of A's ability to care for the children was therefore not an obstacle to their return.That issue should be considered during the court proceedings on the question of the custody of the children under way at the time the children were brought to Finland.The fact that the children's mother B by her own action could or did not want to return to the USA in connection with their return was not an obstacle to the return. The Court conluded that it had not been shown that the children, if returned, would be subject to a serious risk of physical or mental harm or otherwise to intolerable circumstances.There was thus no obstacle to the return.The Court changed the decision of the court of appeal and ordered the immediate return of the children to the USA. See also Supreme Court, Report No. 3492; S98/917, decision rendered 9 November 1998. 17.4.1998 / 31.5.2006 / RHANSKI
|
|
|
|
| [10 / 18] |
Date when decision was rendered: 30.4.1999 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1076; S98/1281 Reference to source KKO 1999:50. Decisions of the Supreme Court 1999 I January-June Avgöranden av Högsta domstolen 1999 I januari-juni Korkeimman oikeuden ratkaisuja 1999 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1999 Pages: pp. 360-367 Subject
right to liberty,
security of person,
respect for private life,
rights of the child,
children,
fair trial,
paternity,
Relevant legal provisions sections 1, 2, 3 and 8 of the Act on blood tests and other tests concerning hereditary characters; sections 26 and 30 of the Paternity Act; Chapter 31, section 16 of the Code of Judicial Procedure; section 6 of the Constitution Act = lag om vissa blodundersökningar och andra undersökningar rörande ärftliga egenskaper 1 §, 2 §, 3 §, 8 §; lag om faderskap 26 §, 30 §; rättegångsbalken 31 kapitel 16 §; regeringsformen 6 § = laki eräistä veri- ja muita periytyviä ominaisuuksia koskevista tutkimuksista 1 §, 2 §, 3 §, 8 §; isyyslaki 26 §, 30 §; oikeudenkäymiskaari 31 luku 16 §; hallitusmuoto 6 §. ECHR-5; ECHR-8; CRC-7; CRC-8 Abstract In a case concerning the establishment of paternity, the man suspected to be the father of the child had died before the case was instituted, and he was represented in the proceedings by his mother and two brothers.The court of first instance had ordered the relatives to deliver blood samples so that the suspected paternity could be investigated on the basis of a DNA-test.The decision was not subject to appeal.The relatives refused by referring to their constitutional right to liberty and security of person and to the fact that the order made by the court was without a foundation in law.In a case concerning the establishment of paternity, only the child, the mother, and the man who is party to the case may be ordered to deliver blood samples (sections 1 and 2 of the Act on blood tests). The court referred to the right of the child to know his or her parents and to preserve his or her identity and family relations as prescribed in Articles 7 and 8 of the CRC.It also referred to the Paternity Act, the purpose of which it is to investigate and to establish or annul a family relation between a child and a suspected father.According to the same Act, the court may on its own initiative collect all evidence which is necessary in order to decide the matter.In this case, the only means to obtain the necessary evidence was to examine the blood samples of the relatives.According to the court, the rights of the child, as defined both in national and international law, were more important than the arguments against delivering the blood samples. The relatives appealed to the Kouvola Court of Appeal which considered the case as an extraordinary appeal.The court referred to Articles 7 and 8 of the CRC, to the decision of the European Court of Human Rights in the Marckx case (judgment of 13 June 1979, Series A, No. 31) concerning the inheritance rights of a child born out of wedlock, and to the decision of the European Commission of Human Rights in the case of X v.Austria (Application No. 8287/78, decision of 13 December 1979), according to which obligating the defendant to a blood test in order to establish paternity was not against Articles 5 or 8-1 of the ECHR.The court noted that the right of the child to a fair trial was jeopardized if the court because of an outdated provision of law could not obtain all available evidence in the case.The breach of the relatives' right to personal integrity was smaller than the damage inflicted to the rights of the child in case the blood samples were not examined.The appeal was dismissed. The relatives took the case before the Supreme Court which assessed first whether the matter could be considered as an extraordinary appeal and answered the question in the affirmative.In the matter itself, the Supreme Court referred to Articles 5 and 8 of the ECHR as well as to section 6 of the Constitution Act concerning the right to liberty and security of person.According to section 6-3, no interference in personal integrity is allowed without grounds prescribed by Act of Parliament.The Act on blood tests contains an exhaustive list of persons who may be ordered to a blood examination against their will.The decision ordering the relatives of the suspected father to deliver blood samples against their will was without a foundation in law.Such an order could also not be based on the fact that during the proceedings the relatives represented the suspected father who had died. 24.10.2002 / 30.5.2006 / RHANSKI
|
|
|
|
| [11 / 18] |
Date when decision was rendered: 9.10.2009 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2454; 2291/1/08 Reference to source KHO 2009:85. Yearbook of the Supreme Administrative Court 2009 July-December Högsta förvaltningsdomstolens årsbok 2009 juli-december Korkeimman hallinto-oikeuden vuosikirja 2009 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 548-567 Subject
aliens,
respect for family life,
family reunification,
children,
rights of the child,
best interests of the child,
Relevant legal provisions sections 6-1, 36-2, 39-1 and 47-5 of the Aliens Act = utlänningslag 6 § 1 mom., 36 § 2 mom., 39 § 1 mom. och 47 § 5 mom. = ulkomaalaislaki 6 § 1 mom., 36 § 2 mom., 39 § 1 mom. ja 47 § 5 mom. ECHR-8; CRC-3; CRC-7: CRC-10 Abstract X, who was originally from Somalia, had been granted residence permit im Finland on the basis of family ties in 2002.X's sister had applied for family reunification for her mother and siblings.X had been presented as the minor and unmarried brother, and he fell thus within the definition of 'family member' under the Aliens Act.However, X had already at that time been married, with one child.In 2004, X applied for a residence permit on the basis of family ties for his wife, their three children and the wife's foster child.The Immigration Service rejected the application, whereas the administrative court, on X's appeal, would have granted the residence permit, referring, among other things, to the best interests of the child and to the fact that it had not been shown where else if not in Finland the family reunification could have taken place. The Immigration Service brought the case before the Supreme Administrative Court, which found that X had knowingly given false information on his family ties in order to evade the provisions on entry into the country and to receive residence permit in Finland as an unmarried and minor family memnber.This fact alone would warrant the cancelling of his own residence permit.When X had come of age in 2003, the family tie to his sister had broken.According to the Aliens Act, if an alien has been issued with a residence permit on the basis of family ties and the family tie is broken, a member of his or her family residing abroad may be issued with a residence permit, provided that the family member has secure means of support.When making a decision, however, account shall be taken of the possibility of that person to return to his or her home country or another country to live with his or her family there, if all his or her family ties can be considered to lie there.An exemption may be made from the requirement for secure means of support if there are exceptionally weighty reasons for such an exemption or if the exemption is in the best interests of the child. The Supreme Administrative Court noted that X's wife and the children had since 2005 been living in Ethiopia.X had visited his family in Ethiopia, and his youngest child was born there.In the Court's opinion, X had thus no insurmountable obstacles to lead family life in Ethiopia if he so wishes.The Court continued that it was also undisputed that X's wife and the children had no secure means of support as required under the Aliens Act.In considering a possible exemption from the requirement for secure means of support, the provisions concerning the best interests of the child in the Alien Act, Article 8 of the ECHR and the obligations under the CRC had to be taken into account.The Court found that considering all the circumstances in the case, there were no exceptionally weighty reasons for making an exemption from the requirement for secure means of support.The Court upheld the decision of the Immigration Service. 27.11.2009 / 21.10.2010 / RHANSKI
|
|
|
|
| [12 / 18] |
Date when decision was rendered: 9.10.2009 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2457; 1878/1/08 Reference to source KHO 2009:86. Yearbook of the Supreme Administrative Court 2009 July-December Högsta förvaltningsdomstolens årsbok 2009 juli-december Korkeimman hallinto-oikeuden vuosikirja 2009 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 568-588 Subject
aliens,
respect for family life,
family reunification,
children,
rights of the child,
best interests of the child,
Relevant legal provisions sections 6-1, 36-2, 47-3 and 66a of the Aliens Act = utlänningslag 6 § 1 mom., 36 § 2 momm., 47 § 3 mom. och 66a § = ulkomaalaislaki 6 § 1 mom., 36 § 2 mom., 47 § 3 mom. ja 66a §. ECHR-8; CRC-3; CRC-7; CRC-10 Abstract X had arrived in Finland as an asylum seeker in 2004.He was 2½ years old and unaccompanied by a parent or guardian.The circumstances of his parents could not be clarified at that time, and in April 2005, X was issued with a residence permit on compassionate grounds.In Finland, X stayed with his uncle and his family.In June 2005, X applied for a residence permit on behalf of his parents and siblings.The Immigration Service turned down the application.Both the administrative court and the Supreme Administrative Court rejected X's appeal. In its decision, the Supreme Administrative Court referred to the hearing on family reunification where X's parents had told they had sent their eldest child to Finland with the purpose of getting residence permits in Finland both for themselves and their other children through family reunification.The parents were both born in Somalia but had lived in Ethiopia since 1991 and 1999 and were married there in 2000.In the Court's view, the parents had no compelling reason to send their child to Finland from Ethiopia where they had been residing as a family.The parents had not claimed that their safety or other fundamental rights would have been jeopardized while in Ethiopia.Moreover, they had decided to send X to Finland as an unaccompanied minor asylum seeker after the application for residence permit made by X's uncle on behalf of his own siblings had been rejected four times.The Court noted that, after his arrival in Finland, X had for five years now been living in good and safe circumstances with his uncle's family, had learned the Finnish language and could no longer communicate in his parents' language.He had no close ties to his family in Ethiopia and his cultural and social ties to Ethiopia could be regarded as broken.The Court continued that in assessing the requirements for issuing residence permits, the best interests of the child had also to be taken into account.In the Court's opinion, the provisions on the best interests of the child in the Aliens Act, Article 8 of the ECHR and the obligations under the CRC did not in this case require the issuing of residence permits.The Court concluded that X's application for residence permits on behalf of his parents and siblings could be rejected because of their apparent intention to evade the provisions on entry into the country under the Aliens Act. 30.11.2009 / 21.10.2010 / RHANSKI
|
|
|
|
| [13 / 18] |
Date when decision was rendered: 16.4.2010 Judicial body: Helsinki Administrative Court = Helsingfors förvaltningsdomstol = Helsingin hallinto-oikeus Reference: Report no. 10/0303/5 Reference to source Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta Date of publication: Subject
citizenship,
children,
paternity,
best interests of the child,
rights of the child,
Relevant legal provisions sections 4 and 32 of the Nationality Act = medborgarskapslag 4 § och 32 § = kansalaisuuslaki 4 § ja 32 §. CRC Abstract X was a Finnish citizen and married to a Kenyan citizen Y.Their child Z was born in Finland in 2007 and acquired Finnish citizenship because the father X was a Finnish citizen.In 2008, X's paternity was annulled by a court decision.According to the Nationality Act, if the husband's paternity has been annulled or if a claim which has resulted in his paternity being annulled has been brought before the child has reached the age of five years, the child loses the Finnish citizenship which he or she has acquired on the basis of his or her father's citizenship.A decision on this is based on the overall consideration of the child's situation.In 2009, the Finnish Immigration Service made a decision to the effect that Z should lose the Finnish citizenship.The Immigration Service based its decision on the facts that the mother Y had objected to any investigation of paternity and had also not taken any action in order for the child to acquire Kenyan citizenship in accordance with Kenyan law.Y claimed that she did not know the child's father and that the child could not acquire Kenyan citizenship without the investigation of paternity.The administrative court noted that having lost the Finnish citizenship, Z could under the circumstances become stateless.According to the Nationality Act, the provisions of the Act on the loss of citizenship must not be applied if, as a consequence of the application of the provisions, a person were to become stateless.The court also referred to the best interests of the child and to international obligations on the rights of the child which are binding on Finland.It concluded that Z must be regarded as a Finnish citizen, despite the annulment of X's paternity.The administrative court revoked the decision of the Immigration Service and returned the matter to the Immigration Service for a new consideration. 26.1.2011 / 26.1.2011 / RHANSKI
|
|
|
|
| [14 / 18] |
Date when decision was rendered: 5.7.2013 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report no. 2064; H13/1327 Reference to source HelHO 2013:4. Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta Date of publication: Subject
paternity,
best interests of the child,
rights of the child,
Relevant legal provisions sections 51 and 52-1 of the Paternity Act; section 8 of the Act on Assisted Fertility Treatments = lag om faderskap 51 § och 52 § 1 mom.; lag om assisterad befruktning 8 § = isyyslaki 51 § ja 52 § 1 mom.; laki hedelmöityshoidoista 8 §. CRC-2; CRC-3: CRC-7 Abstract A surrogate mother in India had given birth to a child born from the gametes of a Finnish married couple.On the birth certificate issued by the relevant authority in India, the Finnish couple were named as the child's parents.In accordance with the Paternity Act, X asked the Helsinki court of appeal to confirm that the birth certificate is a decision on paternity and is recognized in Finland.According to the Paternity Act, the recognition of a decision on paternity issued in a foreign state may be refused, among other grounds, if it results in an outcome that is incompatible with the Finnish public policy.The Act on Assisted Fertility Treatments prohibits the provision of assisted fertility treatment if there is reason to believe that the child will be given up for adoption.On the basis of the provision, surrogacy is thus not legal in Finland. The court of appeal noted that although commercial surrogacy as such is legal in India, there is no legislation in force on surrogacy arrangements, which would explicitly regulate the legal status of the child and the rights and duties of the persons involved.The lack of specific legislation essentially increases the risk that the arrangement is not satisfactory from the point of view of the child or the parties involved.In the court's opinion, it was obvious that X and his spouse had used the surrogacy arrangement in India in order to circumvent the Finnish law.The court referred to Article 2 of the CRC, according to which states shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the activities of the child's parents.Therefore, the court found that in making a decision on the child's legal status, the actions and motives of X and his spouse were not of essential importance. In the court's opinion, the appropriateness of a decision on paternity issued in India and the commercial surrogacy arrangement preceding the decision were in many ways questionable from the perspective of the Finnish legal system.However, the court did not find anything that would indicate that the health of the surrogate mother or the child would have been in danger or that their human dignity would have been violated.Refusing the recognition would in this case lead into an unsustainable situation for the child, when the surrogate mother, her spouse and the Indian authorities all regarded X and his spouse as the child's parents.Besides all other negative consequences, the child would be stateless, which is something explicitly to be avoided under Article 7 of the CRC.Considering also Article 3 of the CRC, according to which in all actions concerning children undertaken by courts of law, the best interests of the child shall be a primary consideration, the court of appeal concluded that there was no reasonable cause to find the decision issued in India as being incompatible with the Finnish public policy as prescribed in the Paternity Act.The court confirmed that the birth certificate was a decision on paternity issued in a foreign state and recognized in Finland. 3.10.2014 / 3.10.2014 / RHANSKI
|
|
|
|
| [15 / 18] |
Date when decision was rendered: 28.5.2010 Judicial body: Vaasa Court of Appeal = Vasa hovrätt = Vaasan hovioikeus Reference: Report no. 645; S08/1210 Reference to source VaaHO:2010:3. Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta Date of publication: Subject
paternity,
respect for private life,
equality,
rights of the child,
Relevant legal provisions section 7-2 of the Act on the Implementation of the Paternity Act; sections 6-2, 10 and 106 of the Constitution Act = lag angående införande av lagen om faderskap 7 § 2 mom.; grundlagen 6 § 2 mom, 10 § och 106 § = laki isyyslain voimaanpanosta 7 § 2 mom.; perustuslaki 6 § 2 mom., 10 § ja 106 §. ECHR-8; ECHR-14; CRC-7; CRC-8 Abstract X was born in 1970 and had been adopted in 1971.In 2005, X filed a paternity suit on the basis of the 1975 Paternity Act in order to establish that Y, who had died in 1998, was X's biological father.According to the transitional provisions of the Implementing Act of the Paternity Act, a paternity suit in relation to a child who has been born out of wedlock before the entry into force of the Paternity Act (1 October 1976) had to be filed within five years from the entry into force of the Act (i.e., before 1 October 1981).The court of first instance noted that the five-year time-limit was not absolute and exceptions could be made in certain cases.In addition to the Implementation Act, the court considered the case from the point of view of the relevant constitutional and human rights provisions on the prohibition of discrimination, the right of the child to know his or her parents and the right to respect for private and family life.Noting also that there had been no actual family bond or other relationship between X and Y, the court concluded that a strict application of the time-limit in this case was not unreasonable and dismissed the action. On X's appeal, the court of appeal first noted that when the five-year time-limit expired, X had been 11 years old.According to the law in force at the time, being a minor, X's right to be heard could have been exercised by the adoptive parents, who however had no interest in bringing an action for the confirmation of Y's alleged biological paternity.Only after having attained 15 years of age, X would have had an independent right to be heard, parallel to that of the adoptive parents.The court of appeal found that there had been legal reasons which had prevented X from initiating paternity proceedings within five years from the entry into force of the Paternity Act.A strict application of the time-limit in this case would thus be in evident conflict with Articles 8 and 14 of the ECHR and the prohibition of discrimination in section 6 of the Constitution Act.It would put X in a worse position than children born out of wedlock after the entry into force of the Paternity Act and children born out of wedlock before the entry into force of the Act who were old enough to initiate proceedings themselves in due time.In the opinion of the court, this worse position of a child under the age of 15 was not acceptable.Consequently, the court applied the provision on the time-limit to the effect that the time-limit should start at the earliest from June 1985 when X had turned 15.However, X had not initiated paternity proceedings until in 2005.Also, X had not presented any evidence to the claim that X had not known the identity of the alleged biological father until in the 2000s and that X's mental health problems had prevented any further clarification of the matter.The court of appeal concluded that it had not been shown that X would have lacked the necessary information in order to request the establishment of Y's alleged paternity or to clarify the matter within the five-year time-limit starting in 1985.The court therefore dismissed the action.The decision of the court of appeal is final.The Supreme Court did not grant leave to appeal in the case (decision no. 866 of 9 May 2012). 11.1.2016 / 11.1.2016 / RHANSKI
|
|
|
|
| [16 / 18] |
Date when decision was rendered: 17.10.2008 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 2250; R2007/500 Reference to source KKO 2008:93. Decisions of the Supreme Court 2008 II July-December Avgöranden av Högsta domstolen 2008 II juli-december Korkeimman oikeuden ratkaisuja 2008 II heinä-elokuu Place of publication: Helsinki Publisher: Edita Date of publication: 2009 Pages: 660-672 Subject
integrity,
children,
best interests of the child,
rights of the child,
child abuse,
circumcision,
respect for family life,
respect for private life,
freedom of religion,
Relevant legal provisions chapter 21 sections 5 and 7 of the Penal Code; sections 6-3, 7-3, 10 and 11 of the Constitution Act; sections 1 and 4 of the Act on Child Custody and Right of Access = strafflagen 21 kapitel 5 § och 7 §; grundlagen 6 § 3 mom., 7 § 3 mom., 10 § ja 11 §; lag angående vårdnad om barn och umgängesrätt 1 § och 4 § = rikoslaki 21 luku 5 § ja 7 §; perustuslaki 6 § 3 mom., 7 § 3 mom., 10 § ja 11 §; laki lapsen huollosta ja tapaamisoikeudesta 1 § ja 4 §. ECHR-8; ECHR-9; CRC-19; CRC-24; CRC-30 Abstract X, who was a Muslim and a sole guardian of her son, had asked a physician to perfom circumcision on her son on grounds of religious tradition.At the time the child was 4½ years old.The question was whether X was guilty of assault or incitement to assault under Finnish law.There is no legislation on non-medical male circumcision in Finland, whereas female genital mutilation is treated as aggravated assault and is always prohibited. The Supreme Court found that the protection of a child's right to personal integrity is strong when balanced against the rights of a parent or a guardian which also can be protected as human rights or constitutional rights through the right to family life or the right to freedom of religion.Parents or guardians have a right to decide on the education of their child and the right to raise the child in accordance with their religious and cultural traditions.However, protecting the rights of the guardian does not as such justify actions which cause harm to the child's health or well-being. The Supreme Court continued that in creating a balance between the rights of the child and those of the guardians the starting-point must be that the guardians' right to decide on the child's care, upbringing and other personal matters is based on the purpose to ensure the welfare and balanced development of the child in accordance with the child's individual needs and wishes.Interference in a child's personal integrity must be assessed specifically from the point of view of the child's interests.A child's guardians may have a right to decide, on the child's behalf, on a procedure which interferes in the child's personal integrity, provided that the purpose of the procedure is to enhance the child's welfare and development.Also, in an objective assessment such a procedure shall not be contrary to the child's best interests.A serious interference in the personal integrity of a child cannot be justified with reference to freedom of religion or the right to practice religion even in cases where it is allegedly based on the best interests of the child. In the Supreme Court's opinion, male child circumcision is a fairly minor interference in the child's personal integrity, provided that the procedure is performed in a medical manner, in hygienic conditions and with analgesia.The court pointed out that the circumcision of Muslim boys is an established tradition in the Muslim community and is deemed compulsory.It is also an integral part of the identity of Muslim men.Therefore, circumcision for religious reasons can be considered to have a positive impact on the boy himself, the development of his identity and his attachment to a religious and social community.In this case circumcision had been performed for acceptable religious reasons and in a safe and appropriate medical manner without causing the child unnecessary pain.Overall, the procedure was only a minor interference in the child's physical integrity and it could not be regarded as being against the best interests of the child.The Supreme Court concluded that for these reasons, X's decision to have her son circumcised was not unlawful and thus not punishable. In its decision the Supreme Court discussed the questions of medical interventions and the right to physical integrity, parental rights, and freedom of religion also in the light of the ECHR.It referred to the judgments of the European Court of Human Rights in the cases of Juhnke v Turkey (judgment of 13 May 2008), Nielsen v Denmark (judgment of 28 November 1988, Publications of the European Court of Human Rights, Series A, Vol. 144), Johansen v Norway (judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III), Scozzari and Giunta v Italy (judgment of 13 July 2000, Reports of Judgments and Decisions 2000_VIII) and Kokkinakis v Greece (judgment of 25 May 1993, Publications of the European Court of Human Rights, Series A, Vol. 260). 2.6.2016 / 2.6.2016 / RHANSKI
|
|
|
|
| [17 / 18] |
Date when decision was rendered: 31.3.2016 Judicial body: Supreme Court = Hösta domstolen = Korkein oikeus Reference: Report no. R2014/116; 0767 Reference to source KKO 2016:24. Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
integrity,
children,
best interests of the child,
rights of the child,
child abuse,
circumcision,
respect for family life,
respect for private life,
freedom of religion,
right to be heard,
Relevant legal provisions chapter 21 section 5 of the Penal Code; sections 1 and 4 of the Act on Child Custody and Right of Access = strafflagen 21 kapitel 5 §; lag angående vårdnad om barn och umgängesrätt 1 § och 4 § = rikoslaki 21 luku 5 §; laki lapsen huollosta ja tapaamisoikeudesta 1 § ja 4 §. CRC-12 Abstract X had circumcised two Muslim boys at the request of the boys' parents and on grounds of religious tradition.At the time one of the boys, Y, had been 7 years old and the other, Z, had been 12 years old.X was not a physician but he had extensive experience in performing circumcision.X was charged with assault and the parents with incitement to assault.There is no legislation on non-medical male circumcision in Finland, whereas female genital mutilation is treated as aggravated assault and is always prohibited. The Supreme Court referred to its earlier decision concerning male circumcision on religious grounds (KKO 2008:93).The court pointed out that in assessing whether circumcision is lawful or unlawful, it is not required that the person performing circumcision is a licensed physician.What is decisive is that the procedure is performed in a professional, medical manner.In this case, the procedure had been performed safely and X's competence had in fact not even been challenged.The Supreme Court noted that the circumcision of Muslim boys is an established tradition in the Muslim community and is deemed compulsory.In this case, both boys' parents had also brought forth the possibility that an uncircumcised boy child is subjected to discrimination within his community. The Supreme Court referred to the Act on Child Custody and Right of Access and noted that a child's guardian has a right to decide on the care, upbringing and other personal matters of the child.Before making a decision concerning a child's personal matter, the guardian must discuss the matter with the child, if this is possible in view of the age and stage of development of the child and the nature of the matter.When making a decision, the guardian must give due consideration to the opinion and wishes of the child.The Supreme Court held that when a child because of his age is not capable of understanding the meaning and implications of circumcision or capable of giving his consent to circumcision, the guardians' decision-making power cannot be justified solely with reference to the child's right to freedom of religion.Whereas when a child is able to assess the meaning of circumcision, his opinion is decisive when assessing whether the procedure is justified. In this case the boys had been circumcised at the request of their parents.There is no indication that the boys' views would have been heard before the procedure.The Supreme Court found that especially concerning Z, who at the time was 12 years old, the performance of the procedure would have required that his own opinion should have been considered.On the other hand, it had not been shown that either of the boys would have objected to the procedure.Z, who at the time of the Supreme Court's decision had reached the age of 15 and had thus an independent right to be heard, parallel to that of his guardians, had told that he does not demand punishment and did not wish to proceed in the matter.Considering this and the fact that circumcision had been performed in an appropriate medical manner, the Supreme Court concluded that the procedure in this case was in the interests of the children and that X's or the parents' conduct could be deemed justifiable. 2.6.2016 / 10.3.2017 / RHANSKI
|
|
|
|
| [18 / 18] |
Date when decision was rendered: 31.3.2016 Judicial body: Supreme Court = Högsta domtolen = Korkein oikeus Reference: Report no. R2014/211; 0768 Reference to source KKO 2016:25. Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
integrity,
children,
best interests of the child,
rights of the child,
child abuse,
circumcision,
respect for family life,
respect for private life,
right to be heard,
Relevant legal provisions chapter 4 section 3 and chapter 21 section 5 of the Penal Code; sections 6-3 and 7 of the Constitution Act; section 5 of the Act on Child Custody and Right of Access = strafflagen 4 kapitel 3 § och 21 kapitel 5 §; grundlagen 6 § 3 mom. och 7 §; lag angående vårdnad om barn och umgängesrätt 5 § = rikoslaki 4 luku 3 § ja 21 luku 5 §; perustuslaki 6 § 3 mom. ja 7 §; laki lapsen huollosta ja tapaamisoikeudesta 5 § Abstract X, who was originally from Nigeria, had had his son circumcised for cultural reasons.At the time the child was four months old.The procedure had been performed by a licensed physician, B.Both X and B were charged with aggravated assault.The child's mother, who was Finnish, objected to the procedure.The family lived in Finland and the parents had joint custody of their child.After having moved to Finland, X had retained his cultural and religious identity.The child thus shared the cultural background of both his parents. The Supreme Court referred to is previous decision (KKO 2008:93) and held that male child circumcision is a fairly minor interference in the child's personal integrity, provided that the procedure is performed in a medical manner.In this case, circumcision had been performed by a licensed physician, in an appropriate medical manner and with analgesia.The court noted that in multicultural families circumcision enhances the child's integration into the cultural community of one of the parents.On the other hand, circumcision, even when performed in a medical manner, is an interference in the child's personal integrity.In the court's view, non-medical male circumcision can be justified only when it is clearly and unequivocally in the best interests of the child. According to the Act on Child Custody and Right of Access, the parents or guardians of a child are jointly responsible for the duties inherent in custody of a child and make the decisions concerning the child together, unless otherwise provided or ordered.In a matter that is of great significance for the future of the child, the parents may only make a joint decision, unless it is manifest that the best interests of the child do not require this.In the Supreme Court's opinion, non-medical circumcision is a matter which can only be decided jointly by the child's parents.On the other hand, the protection of the child's right to personal integrity is strong, to the extent that the parents' fundamental rights or their right to make decisions on behalf of the child do not as such justify interference in the child's personal integrity.The justification of such interference must be assessed primarily with the best interests of the child in view. The best interests of the child must be assessed objectively.When the child's parents disagree on the question of circumcision, the justification of the procedure cannot be based on the opinion of one of the parents only as to what is in the best interests of the child.When it comes to a procedure which is not necessary for medical reasons and which can also be performed at a later age, the child's own opinion and wishes must be given due weight.Before the child is old enough to express his own will concerning circumcision and his own wish to enhance his attachment to the religious and cultural community of one of the parents, the justification of circumcision, in view of the child's overall interests, cannot be regarded as objectively clear if the parents disagree on the procedure. The Supreme Court concluded that, in an objective assessment, the procedure in this case had not been in the best interests of the child.It had been performed in a safe medical manner, but on grounds of the cultural background of one of the parents only and against the wishes of the other parent.X was found guilty of assault and was sentenced to a fine.B was acquitted.Before the procedure B had stressed that both parents should be present and give their consent to the procedure.However, X had misled B to believe that the mother had given her consent and had explicitly said she did not want to be present during the procedure. In its decision, the Supreme Court stated that it was unfortunate that there is no legislation governing non-medical male circumcision in Finland.The court also noted that there were no explicit guidelines emanating from international conventions binding on Finland or the case law of the European Court of Human Rights.In its own decisions, the Supreme Court has attempted to draw guidelines as to the assessment of the justification of male child circumcision, in view of the child's best interests.In the Supreme Court's opinion, however, the question of non-medical male circumcision cannot be covered comprehensively by court decisions in individual cases.Instead, thorough evaluation in a legislative drafting process would be required, taking also into account possible penal sanctions. 2.6.2016 / 2.6.2016 / RHANSKI
|
|
|
|