Korkein hallinto-oikeus; 2009-06-30; A, B, C, D, E and F; KHO:2009:68
Decision by national courts in the field of European Union law — ECLI:FI:KHO:2009:68
Date: 2009-06-30
Subject matter: Judicial cooperation in civil matters
Origin: Finland

82009FI0630(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards the taking of children into custody and foster care in a situation where the family resided both in Finland and Sweden.
The Basic Welfare Committee (“BWC”) in Finland decided, based on the Lastensuojelulaki (1), that children C, D, and E (born in Finland and speaking Finnish language) of the mother A and father B will be, under an urgent protection measure, taken into care. A and F demanded that this decision be annulled.
The Municipal Board of Appeal rejected the complaint, pointing out that the children, previously domiciled in Sweden, moved with their family to Finland, where they lived in caravans in various campsites and the children were not attending school. The authorities tried to help to the family, but it was not cooperating. This decision was submitted to the Administrative court to be confirmed.
A, within the proceedings of the Administrative court, appealed the decision of the BWC seeking that it be annulled and the children be returned to her, alleging that they planned to live in Finland only for a temporary period until their house in Sweden was be renovated and that the whole family was supposed to return to Sweden later. The Administrative court ascertained that medical reports showed that the children had experienced physical violence in the family and that they also had been in immediate need of psychiatric care. The Administrative court held that the shortcomings in the care of the children as well as the other circumstances of this case have seriously jeopardised their psychological and physical health and development. Therefore, the complaint was dismissed and the placement into care was upheld as being in the interests of C, D and E.
A filed an appeal to the Supreme Administrative Court, where she requested the decisions of the Administrative Court and the BWC be annulled and that C, D and E be returned to her. A declared that it was important to ascertain whether the Finnish courts and authorities had had the jurisdiction to order the custody and foster care of C, D and E, who obtained Swedish citizenship and were permanently domiciled in Sweden, with only a temporary stay in Finland. The Supreme Administrative Court stayed the proceedings and asked the CJEU several questions regarding: the immediate taking into care of a child and his or her placement outside the home; the concept of habitual residence bearing in mind in particular the situation in which a child has a permanent residence in one Member State but is staying in another Member State, carrying on a peripatetic life there; on what conditions may an urgent measure be taken; whether the case must, after the taking of the protective measure, be transferred of the court’s own motion to the court of the Member State with jurisdiction and how to proceed in cases, where the court of a Member State has no jurisdiction at all. The CJEU in its judgment in the case C-523/07 (2) ruled, among other things, that the concept of habitual residence under Article 8(1) of the New Brussels II Regulation (3) “must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay in the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.” The Supreme Administrative Court assessed and explained all of these conditions and declared that the habitual residence of C, D and E at the time of the decision of the BWC was in Finland. Therefore, the Finnish authorities had the competence to decide on the care. Considering the need for children’s psychiatric care, the findings of the children’s situation and circumstances regarding their housing, the Supreme Administrative Court declared the reasoning and conclusions of the lower instances as correct.
Therefore, the appeal was dismissed and the decision of the Administrative Court was upheld.
(1) The Child Welfare Act.
(2) Judgment of the Court of Justice of 2 April 2009, A., C-523/07, ECLI:EU:C:2009:225.
(3) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.