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Family Law

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09 MAY 2006

HUMAN RIGHTS: C v Finland (Application no 18249/02)

(European Court of Human Rights; 9 May 2006)

The British father's two children had been living with their mother and their mother's female partner in Finland. The father had been having contact visits and his relationship with the children was, on the whole, good. After the mother's death, the Finnish lower courts awarded custody to the father. However, the Finnish Supreme Court (the Supreme Court) overturned those decisions, granting custody to the mother's female partner and no visiting rights to the father, on the basis of the children's clearly stated views. There had been no finding by the domestic courts that the father was in any way unfit or incapable of providing for the children's needs. The father complained about the lack of an oral hearing before the Supreme Court, and about the decision reached, relying on the right to a fair hearing, and the right to respect for private and family life under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention).

The Supreme Court's decision to reverse the decisions of the lower court was supported by relevant reasons, however the Supreme Court had placed exclusive weight on the views expressed by the children without considering any other factors, in particular the father's rights, effectively giving the children an unconditional veto power. Furthermore, it did so without holding an oral hearing and without taking any steps to clarify, through further evidence or expert opinion, any divergent interpretation of the evidence or whether a greater harm would be caused to the children's welfare by a decision in the father's favour than by the decision reached which would effectively deprive the children of a relationship with the father. The decision-making procedure had failed to strike a proper balance between the respective interests. There had been a violation of Art 8 of the European Convention in relation to the custody decision; however the decision concerning contact had not, given the father's failure to apply for contact and the children's continued resistance to such contact.

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