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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
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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
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| [3 / 45] |
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
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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
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| [5 / 45] |
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
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| [6 / 45] |
Date when decision was rendered: 31.5.1995 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 2183; H93/326 Reference to source KKO 1995:95. 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: 1996 Pages: pp. 393-399 Subject
right to be heard,
preparation of defence,
children,
law of procedure,
right to reply,
Relevant legal provisions Chapter 30, section 11-3 and Chapter 31, sections 1-4 and 6 of the Code of Judicial Procedure = rättegångsbalken 30 kapitel 11 § 3 mom., 31 kapitel 1 § 4 mom., 6 § = oikeudenkäymiskaari 30 luku 11 § 3 mom., 31 luku 1 § 4 mom., 6 §. ECHR-6 (unspecified) Abstract A and B had agreed that B would pay A a lump-sum of FIM 80,000 as child maintenance for their common child.A paid FIM 40,000 of the money back to B as redemption for a car in accordance with their agreement on distribution of matrimonial assets, and used the rest of the money to improve her and the child's common home. B asked the court of first instance to order A to repay the maintenance, as the child had lived with A for only 7 weeks and with B the rest of the time.A objected to the claim, stating that the payment of the lump-sum maintenance was part of the agreement on distribution of matrimonial assets.The agreement had not accorded A anything but the lump-sum.The court of first instance stated that the payment of the lump-sum was based on an agreement between the parties confirmed by the court and that it therefore was not paid without due justification even if the child did not live with A for a long time. The court of appeal upheld the decision of the court of first instance. B appealed to the Supreme Court.In its decision of 31 August 1993 (KKO 1993:104), the Supreme Court stated that the lump-sum was intended for child maintenance and that A was thus obliged to repay the money which was not used for that purpose or for other purposes agreed by the parties.As no such money remained, A was not obliged to repay anything. In an extraordinary appeal on the basis of procedural fault, B asked the Supreme Court to annul its decision in the case, referring to the fact that he had not been heard regarding A's response to the Supreme Court nor received a copy of the response or the issues dealt with therein.In its decision of 31 May 1995, the Supreme Court stated that Chapter 31, section 1-4 of the Code of Judicial Procedure allows for the nullification of a judgment if there has been a procedural error and this error has affected or can be presumed to have affected the judgment.It is in the interest of the respect of the judicial system that this provision is not interpreted narrowly.As B had not received a copy of A's response to the Supreme Court, as required by Chapter 30, section 11-3 of the Code of Judicial Procedure, B had not been informed of all material affecting the outcome of the case.This constituted a procedural error. The Supreme Court also referred to Article 6 of the ECHR, concluding that the right to be heard also includes a right for the parties to be informed of all material affecting the outcome of the case and thereby having a real opportunity to react to the material.In its 1993 decision, the Supreme Court came to a different conclusion on the main issue than the lower courts, basing its decision essentially on the information that emerged from A's response to the proceedings in the Supreme Court.The information on the use of the lump-sum did, contrary to in the lower courts, affect the outcome of the decision of the Supreme Court as laid out in Chapter 31, section 1-4 of the Code of Judicial Procedure.The Supreme Court annulled its decision KKO 1993:104 and decided to reconsider the case. 16.4.1998 / 14.3.2003 / LISNELLM
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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
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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,
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
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| [9 / 45] |
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,
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
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| [10 / 45] |
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,
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
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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
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Date when decision was rendered: 19.9.2000 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 2302; 4419/3/98 Reference to source Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
children,
best interests of the child,
respect for private life,
respect for family life,
family reunification,
Relevant legal provisions sections 9, 10, 19 and 22 of the Child Welfare Act = lag om barnskydd 9 §, 10 §, 19 §, 22 § = lastensuojelulaki 9 §, 10 §, 19 §, 22 §. ECHR-8; CRC Abstract The authorities had placed three children in substitute care with a foster family because of the father's problems with alcohol.The mother had died earlier.The children's father and their relatives were not satisfied with their access to the children or with the upbringing and care of the children in the foster family.The municipal social and health board had rejected the father's application concerning the possibility to place the children in the care of their aunt instead.The county administrative court had rejected the father's appeal.The father appealed to the Supreme Administrative Court. In addition to the Child Welfare Act, the Supreme Administrative Court discussed in detail the CRC and Article 8 of the ECHR.The Court emphasized, among other things, the provisions concerning the best interests of the child as a primary consideration in all actions concerning the child, the restrictions to the separation of the child from his or her parents as well as the right of the child to be heard in matters affecting the child.With reference to the case law of the European Court of Human Rights, the Court paid attention to the fact that taking a child into care should be a temporary measure and that all measures should aim at the reunification of the family.A balance should be struck between taking a child into care in order to protect the interests of the child, on the one hand, and the interests of the parents in the form of the reunification of the family, on the other.Special emphasis should be placed on the interests of the child. At the request of the Court, the children (aged 8, 9 and 11) were heard.They stated that they wished to live with their father in the first place, or with their aunt in the second place.The Court concluded that according to the documentary evidence presented in the case the foster family was capable of providing such circumstances as were required by the needs of the children.On the other hand, the children themselves wished to live with their father or their aunt and the children's relatives supported the latter alternative.The child welfare authorities which had been heard in the case did not object to this alternative.The Supreme Administrative Court concluded that placing the children in substitute care with a family which had been accepted by their relatives may contribute to the reunification of the family which is in line with the case law under Article 8 of the ECHR.The decisions of the social and health board and the county administrative court were quashed and the matter was returned to the board.The Court further noted that special emphasis should be placed in the continuation of the treatment required by the mental health of the children as well as to their possibility to stay in contact with the previous foster family. 28.10.2002 / 27.3.2003 / LISNELLM
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Date when decision was rendered: 15.11.2002 Judicial body: Administrative Court of Hämeenlinna = Tavastehus förvaltningsdomstol = Hämeenlinnan hallinto-oikeus Reference: Report No. 02/0499/4; 01308/02/4310 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
respect for private life,
respect for family life,
children,
visiting rights,
Relevant legal provisions sections 19, 24 and 25 of the Child Welfare Act; sections 7-3, 17-3, 22 and 80-1 of the Constitution Act = barnskyddslagen 19 §, 24 § och 25 §; grundlagen 7 § 3 mom., 17 § 3 mom., 22 § och 80 § 1 mom. = lastensuojelulaki 19 §, 24 § ja 25 §; perustuslaki 7 § 3 mom., 17 § 3 mom., 22 § ja 80 § 1 mom. ECHR-8; CRC-9-3 Abstract A municipal social welfare board had taken a child into care and had provided substitute care for her in a foster family.The board had later decided to restrict the contacts between the child and her mother, with reference to a care plan appended to the decision and on the grounds that the child was still in the process of adjusting herself to living with the foster family. According to the administrative court, it was not possible to agree on the right of access on the basis of a care plan when the number of visits permitted was essentially smaller than the parents had wished or essentially smaller than that which is customary when applying the Child Custody and Right of Access Act.The court then referred to the Constitution Act and noted that possible restrictions to a person's rights should be based on an Act.In this case, the relevant provision was section 25 of the Child Welfare Act, which prescribes that the right of access between a child in substitute care and his or her parents may be restricted if such access clearly endangers the development or safety of the child or such a restriction is necessary for the safety of the parents or the foster parents.According to the administrative court, nothing in the board's decision, in the care plan or in the oral hearing before the court had indicated that there would have been any such danger to the child, her parent or the foster parents.The administrative court concluded, that considering that taking a child into custody is primarily a temporary measure, the social welfare board had not had any grounds to restrict the contacts between the child and her mother to the extent prescribed in the board's decision.The board's decision was quashed.The court's decision is final. The administrative court does not refer to international human rights provisions in the text of its decision.However, the list of applied legal provisions, which is appended to the decision, contains references to Article 8 of the ECHR and Article 9-3 of the CRC. 9.5.2003 / 5.8.2003 / JKOSKIMI
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Date when decision was rendered: 28.10.1999 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report No. 3150; S98/225 Reference to source Registry of the Helsinki Court of Appeal Helsingfors hovrätts registratorskontor Helsingin hovioikeuden kirjaamo Date of publication: Subject
children,
social assistance,
Relevant legal provisions sections 11 and 11a of the Child Daycare Act; section 15a of the Constitution Act; chapter 3, section 2 of the Tort Liability Act = lag om barndagvård 11 §, 11a §; regeringsformen 15a §; skadeståndslagen 3 kapitel 2 § = laki lasten päivähoidosta 11 §, 11a §; hallitusmuoto 15a §; vahingonkorvauslaki 3 luku 2 § Abstract On 15 May 1996, X had submitted an application for municipal daycare for her two children as of 20 November 1996.The municipality arranged the daycare, but only as of 2 December 1996.As a consequence, X had to take leave of absence without salary in order stay at home and to take care of her children.She took the case to the court of first instance and demanded that the municipality pay damages for her loss of income.The court of first instance ruled that the municipality had breached against its legal obligation to arrange daycare, but considering the circumstances had taken the necessary measures and was thus not liable to pay damages.X took the case to the court of appeal. The court of appeal referred to sections 11 and 11a of the Child Daycare Act and noted that the parents of a child have a subjective right to have their child in municipal daycare until the child reaches the age of compulsory education and starts school.According to the court, the Act does not give a municipality the possibility to deny daycare when the applicant fulfills the criteria provided for in the Act and submits the application in the prescribed time (four months in advance at the latest).The court also referred to section 15a of the Constitution Act, according to which public authorities shall secure for everyone, as provided in more detail by an Act, adequate social and health services.Therefore, X must have had a reason to expect that when applying for daycare, the municipality would arrange it.The court concluded that the municipality had acted in breach of its legal obligations and could not be considered to have complied with reasonable requirements placed on the arranging of daycare for children.The court of appeal ordered the municipality to pay damages to X for loss of income and to compensate her legal costs. The Supreme Court did not change the appeal court's decision (decision of 19 September 2001, reference: KKO 2001:93). 4.8.2003 / 16.9.2003 / JKOSKIMI
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Date when decision was rendered: 19.2.2002 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 356; 2180/3/01 Reference to source Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
aliens,
children,
best interests of the child,
family reunification,
Relevant legal provisions sections 1c, 18b-1, 18c-1 and 18c-2 of the Aliens Act = utlänningslag 1c §, 18b § 1 mom., 18c § 1 och 2 mom. = ulkomaalaislaki 1c §, 18b § 1 mom., 18c § 1 ja 2 mom. CRC-3-1; CRC-7-1; CRC-10-1 Abstract A had requested for asylum in Finland in 1991, but his application had been rejected and he had been deported to his home country in 1994.In his home country, A had a family with two children who were minors.A lived with his family during 1994-1995.In 1995, he married a Finnish citizen in his home country, was granted residence permit and moved to live in Finland.He received permanent residence permit in 1997.Having settled in Finland, he took action in his home country in order to establish his paternity and to register the children.The children were registered in 1998, and that same year A applied for a residence permit in Finland for the children on the basis of family reunification.In an interview at the Finnish embassy, the mother had agreed to it that the children should move to live with their father.She could not herself take care of the children, who were then living with their grandmother in poor conditions.The elder child, B, who at that time was 13 years of age, was heard and said that he wanted to move to live with the father. The Directorate of Immigration rejected the application for residence permit made by A on behalf of B.It referred to section 18c of the Aliens Act and considered that there were weighty reasons against issuing the permit and that A and B did not have guaranteed means of support in Finland.The administrative court dismissed A's appeal, but the Supreme Administrative Court granted A leave to appeal.When the case was taken up by the Supreme Administrative Court, A informed the court that the grandmother had died and the children where living alone without any adult person to take care of them.The Supreme Administrative Court referred to Articles 3-1, 7-1 and 10-1 of the Convention on the Rights of the Child and noted that considering the circumstances in which the children were living in their home country, it was in their best interests that they should live with their father who resided permanently in Finland and could support his family as he was running a business of his own.The fact that B had lived separated from his father could not be regarded as a weighty reason against issuing the residence permit in the meaning intended by section 18c of the Aliens Act.The court concluded that the application for a residence permit could not be rejected on the grounds given in the decision of the Directorate of Immigration.It quashed the decisions of the Directorate of Immigration and the administrative court and returned the matter to the Directorate of Immigration for a new consideration. 6.8.2003 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 12.11.1998 Judicial body: The Administrative Court of Uusimaa = Nylands länsrätt = Uudenmaan lääninoikeus Reference: Report No. 694/2; 3283/4310/98 Reference to source Electronic database FLOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FLOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FLOT-tietokanta Date of publication: Subject
children,
visiting rights,
access to court,
Relevant legal provisions section 25 of the Child Welfare Act; section 16 of the Constitution Act = barnskyddslagen 25 §; regeringsformen 16 § = lastensuojelulaki 25 §; hallitusmuoto 16 §. ECHR-6-1 Abstract The director of a private children's home, a civil servant and a section of a municipal board had all decided to restrict the right of children, who had been placed in substitute care, to see their parents.The children's father appealed against the decisions to an administrative court. It is prescribed in section 25 of the Child Welfare Act that a municipal social welfare board and a director of a residential home have a right to restrict the visiting rights of children in substitute care.The administrative court found that also a director of a private children's home may, on the basis of section 25, restrict the right of a child in substitute care to see his or her parents.However, there were no specific provisions in law concerning the possibility to appeal against the decision.The decision of the director of the private children's home in this case concerned a person's rights.Taking into account Article 6-1 of the ECHR and section 16 of the Constitution Act and considering the nature of the matter, the court concluded that it was necessary to bring the matter before an independent tribunal.In the court's opinion, no distinction could be made between the right to appeal against a decision of the director of a private children's home and the right to appeal against a decision made by the director of a children's home which is maintained by municipal or state authorities.The administrative court decided to admit the appeal against the decision of the director of the private children's home. 6.8.2003 / 6.8.2003 / JKOSKIMI
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Date when decision was rendered: 30.10.2003 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 2640; 1146/3/02 Reference to source KHO 2003:73. Yearbook of the Supreme Administrative Court 2003 July-December Högsta förvaltningsdomstolens årsbok 2003 juli-december Korkeimman hallinto-oikeuden vuosikirja 2003 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2007 Pages: pp. 287-291 Subject
aliens,
children,
asylum,
refusal of entry,
Relevant legal provisions Sections 1c, 37, 38 and 39 of the Aliens Act = utlänningslag 1c §, 37 §, 38 §, 39 § = ulkomaalaislaki 1c §, 37 §, 38 §, 39 §. CRC-3, CRC-7 Abstract The administrative court had rejected the applications for asylum and residence permit made by spouses A and B and their child C.The Directorate of Immigration had made a decision to deport the family to their home country.The family appealed to the Supreme Administrative Court.They claimed that in their home country they would face the risk of being persecuted on account of their nationality.In addition, the child C had been born in Finland and when the appeal was submitted, B was pregnant.The second child was born in Finland after the decision on deportation had been made.While the case was pending, the deportation was carried out.The family's counsel claimed that this was against the law, as the decision on deportation did not concern all members of the family.The Supreme Administrative Court did not grant leave to appeal as far as the applications for asylum and residence permit were concerned.However, it decided to consider the appeal against the decision on deportation.The Court noted that when making the decision on deportation, the Directorate of Immigration could not take into consideration the child who had not yet been born at that time.No separate application for asylum or residence permit had been submitted on behalf of the child.According to the Court, the position of a child who is born after a decision to deport the child's parents has been made has as such no effect when considering whether the parents are in need of asylum or international protection.It can be assumed that a newborn child travels together with his or her parents.If necessary, the police may provide the child with a separate travel document.The Supreme Administrative Court concluded that it was possible to carry out the deportation of the family after the applications for asylum and residence permit had been rejected.Taking into account the valid travel documents of the family, it was also possible to deport the newborn child who travelled with his/her family.The deportation was thus not in violation of the Aliens Act or the Convention on the Rights of the Child. 15.1.2004 / 2.3.2017 / RHANSKI
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Date when decision was rendered: 17.11.2003 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 2829; S2002/324 Reference to source KKO 2003:107. Decisions of the Supreme Court 2003 II July - December Avgöranden av Högsta domstolen 2003 II juli - december Korkeimman oikeuden ratkaisuja 2003 II heinä - joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2004 Pages: 659-666 Subject
non-discrimination,
children,
paternity,
Relevant legal provisions Section 7-2 of the Act on the Implementation of the Paternity Act, section 6 of the Constitution Act = lag angående införande av lagen om faderskap 7 § 2 mom.; grundlagen 6 § = laki isyyslain voimaanpanosta 7 § 2 mom.; perustuslaki 6 §. ECHR-8; ECHR-14; CRC-7 Abstract A had been born out of wedlock in 1968.In 2000, A filed a paternity suit on the basis of the 1975 Paternity Act in order to establish that B was A's father.B had died in 1999.According to section 7-2 of the Act on the Implementation of the Paternity Act, a paternity suit in relation to a child who had 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.The suit could not be filed if the father was dead.A claimed, among other things, that section 7-2 of the Implementation Act was discriminatory.Persons who had been born out of wedlock after the entry into force of the Paternity Act could initiate proceeding without any time limit.A was thus treated differently from these persons because of her date of birth and thus her age.The Supreme Court considered the five-year transition period as reasonable.The transition period had been set on grounds of legal security.Presently, the transition period was even more important in view of legal security as the legislation in question had been in force for more than 25 years and all those covered by the transition provision had reached the age of majority some time ago.A and B had never lived together, and there was no genuine family tie or other close bond between the two.When filing the paternity suit A was 32 years old.The establishment of paternity was relevant mainly with respect to A's inheritance right.The Supreme Court made a general reference to the Convention on the Rights of the Child and the ECHR and their interpretation practice and found no support for the claim that the application of section 7-2 in this case would be in conflict with the two conventions.The Court also found that A had not without an acceptable reason been treated differently on grounds of her age.The Court concluded that section 7-2 was not in conflict with the prohibition of discrimination as prescribed in section 6 of the Constitution Act. See also the case of Grönmark v.Finland (application no. 17038/04, judgment of 6 July 2010) in which the European Court of Human Rights found a violation of Article 8 of the ECHR.A then filed with the Supreme Court a request for the reversal of judgment KKO 2003:107.In its decision (KKO 2015:97) of 22 December 2015, the Supreme Court noted that the new Paternity Act (11/2015) will enter into force 1 January 2016.Under the new Act, the possibility to file a paternity suit is no longer time-barred.The court's previous decision (2003:107) does not prevent A from filing a paternity suit under the new Act.Therefore, there was no need for a reversal of the judgment. 21.4.2004 / 23.12.2015 / RHANSKI
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Date when decision was rendered: 25.11.2004 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 3007; 907/3/04 Reference to source KHO 2004:99. 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. 263-272 Subject
freedom of religion,
children,
Relevant legal provisions sections 1-1, 3-2 and 6 of the Freedom of Religion Act; section 13 of the Basic Education Act; section 5-1 of the Child Custody and Right of Access Act; section 11 of the Constitution Act = religionsfrihetslag 1 § 1 mom., 3 § 2 mom. och 6 §; lag om grundläggande utbildning 13 §; lag angående vårdnad om barn och umgängesrätt 5 § 1 mom.; grundlagen 11 § = uskonnonvapauslaki 1 § 1 mom., 3 § 2 mom. ja 6 §; perusopetuslaki 13 §; laki lapsen huollosta ja tapaamisoikeudesta 5 § 1 mom.; perustuslaki 11 § Abstract A and B were divorced and had joint custody of their two children who lived with their mother, A.B was a member of the Evangelical Lutheran Church, but A and the children did not belong to any religious community.The children had previously taken part in religious education at school, but A requested that they were to be taught ethics which is available as an alternative to Lutheran religious instruction in Finnish schools.B objected to this and demanded that the children would continue to participate in religious education.The municipal board of education decided that, as the parents disagreed, the children should continue to attend religious education.The administrative court agreed with the board.The Supreme Administrative Court noted that, in accordance with the right to freedom of religion, no one can be obliged to participate in religious education which does not correspond to the person's own religious opinion.Section 13 of the Basic Education Act prescribes that a pupil who does not belong to a religious community has a right to attend majority (Lutheran) religious education.The provider of basic education shall be notified of the wish to exercise that right by the pupil's parent or custodian.According to the Freedom of Religion Act, the custodians shall jointly decide on the religious affiliations of a child, and according to the Child Custody Act, the custodians of a child shall make joint decisions relating to the child, unless otherwise provided or ordered.Taking these provisions into account, the Supreme Administrative Court found that one custodian could not make a valid notification under section 13 of the Basic Education Act if the other custodian objected to it.The Court ruled that the decision of the municipal board of education was contrary to law as it meant that children who did not belong to any religious community were required to attend religious education.The Supreme Administrative Court quashed the decisions of the board and the administrative court but did not take a stand as to how the children's education should be arranged in this case. 20.1.2005 / 3.7.2009 / RHANSKI
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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,
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
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