ITEMID: 001-105415
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF NUNEZ v. NORWAY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8 (in case of expulsion)
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: 5. The applicant, Ms Mirtha Ledy de Leon Nunez, was born on 17 June 1975 in the Dominican Republic and lives in Oslo.
6. The applicant first arrived in Norway on 26 January 1996 as a tourist. On 16 March 1996 she was arrested on suspicion of shoplifting. The next day she accepted a summary fine (forelegg) for theft of goods to the estimated value of NOK 5,098 (EUR 600). On the same date it was decided to deport her and to prohibit her from re-entry for a period of two years. The deportation was effected on 18 March 1996.
7. Four months later, on 19 July 1996, the applicant returned to Norway with a different passport, according to which her name was Santa Rita Ozuna Tapia, she was born on 11 September 1974 and indicating a different identity number from that in her previous passport. On 11 October 1996 she married a Norwegian national and on 17 October 1996 she applied for a residence permit. In her application she stated that she had not previously visited Norway and that she had no previous criminal convictions. She was granted a work permit on 17 January 1997 for a period of 1 year, which was renewed a number of times. On 19 April 2000 she was granted a settlement permit.
8. On 17 December 1999 she applied for Norwegian citizenship, but the processing of her application was discontinued as her husband on 18 April 2001 applied for a separation.
9. In the course of spring 2001, the applicant started co-habiting with Mr O., who also originated from the Dominican Republic and who had held a settlement permit since 2000. Together, the couple had two daughters, born on 4 June 2002 and 15 December 2003, respectively.
10. In the meantime, in early summer 2001 the police received information from a source that the applicant had previously been in Norway under the name Mirtha Ledy de Leon Nunez. On 7 December 2001 the police apprehended her while she was working in a hairdressing salon. After first denying having previously been in Norway under a different name she later admitted it. She explained that the name in the passport the second time she came to Norway had not been an incorrect name but had been her father’s, whilst the name in the first passport had been her mother’s. The difference in birth dates could be explained by the fact that it was her father who had arranged for the second passport. She admitted having used the second passport deliberately to avoid the prohibition on re-entry (see paragraph 7 above).
11. In view of the above, after having put the applicant on notice on 10 January 2002 that it was considering revoking her work- and settlement permits, on 2 October 2002 the Directorate of Immigration revoked her permits. In July 2004 the Immigration Appeals Board rejected her appeal against this decision.
12. On 26 April 2005 the Directorate decided that the applicant should be expelled and prohibited from re-entry for a period of two years, applying section 29(1)(a) of the Immigration Act 1988 (according to which an alien may be expelled if he or she has committed serious or repeated violations of one or more provisions of the Act) and finding that her expulsion would not be disproportionate for the purposes of section 29(2).
13. On 9 November 2005 the Directorate of Immigration refused a request by the applicant to stay the implementation of her expulsion. However, on 3 January 2006 it confirmed that she had a right to such stay.
14. The applicant’s appeal to the Immigration Appeals Board was rejected on 23 February 2007. Its reasoning included the following considerations. The applicant had violated sections 25 (on visa requirements) and 47 (1)(b) (according to which the provision with intent or gross negligence of essentially false or manifestly misleading information in a matter falling within the Act is punishable by fines or up to six months’ imprisonment or both), with reference to section 44 (on identity document requirements) of the Immigration Act 1988. She had travelled to Norway four months after having been expelled from Norway with a two year re-entry ban. In practice, unlawful travel to the country would always be considered a serious breach of the Immigration Act. The Board further noted that the applicant had requested a residence permit by using a false identity and false documents in order to obtain such a permit. The applicant had violated the Immigration Act seriously and repeatedly. In the Board’s view the applicant’s expulsion would not be a disproportionate measure either with regard to the applicant or her closest family members. In this connection the Board had regard to the serious nature of the applicant’s offences and the general preventative interests in expelling her, her personal links to Norway as compared to her home country as well as her relationship with her children. The latter could not be decisive.
15. The Board observed inter alia:
“The Board notes that the children, who are Dominican nationals, are not registered in the Immigration authorities’ computer system with any permit. Nor is there any registered application for a residence permit in Norway for the children. Pursuant to section 6(2) of the Immigration Act 1988 all foreigners, also children, who reside in Norway must hold a permit. This applies also to children of foreign parents. As long as the children do not hold a permit to reside in Norway they are obliged to leave the country. Whether or not [the applicant] and Mr O. opt to submit an application for family reunion with Mr O. is up to them and is in any event of no importance for the applicant’s case. The Board also notes that it has been submitted that the father has periodically had daily contact with his children and that he currently has contact visits every other weekend and an overnight visit during weeks when he does not have weekend visits.
The Board further refers to the fact that the children, born in 2002 and 2003, are relatively young and their links to Norway cannot be said to be very strong. It is assumed that their strongest ties are those with their close family, their mother and father. Whether the children remain in Norway or accompany their mother to her country of origin has no decisive significance for the outcome of the case.
The [applicant]’s children, born respectively in 2002 and 2003, were conceived and born during the [applicant]’s unlawful stay in Norway. She used a false identity to gain entry to Norway and to obtain permits (subsequently revoked). On this basis, the [applicant] cannot be said to have had a legitimate expectation of establishing a family life in Norway, and to stay here.
The connection developed under the above circumstances is thus ascribed little weight in the assessment of proportionality.
[...]
The Board has considered [...] whether the [applicant]s expulsion would be contrary to Article 8 of the Convention and of the United Nations Convention on the Rights of the Child and has found that this is not the case.
[...]
[...]
for the purposes of section 29(2) of the Immigration Act, cf. Article 8 of the Convention and the UN Convention on the Rights of the Child.
[...]
The applicant is to be expelled from Norway for a period of two years in accordance with section 29(4) of the Immigration Act.
The decision of expulsion will prevent her return to Norway for as long as the prohibition on re-entry applies. A breach of the prohibition on re-entry is a punishable offence under section 47(2) (a) of the Immigration Act and Article 342(1) of the Penal Code.
Under section 29(4) of the Immigration Act a person who has been expelled may apply for permission to enter the country, but this is normally not granted until two years have elapsed from leaving the country.”
16. In the meantime, in October 2005, the applicant and Mr O. separated. She then assumed the daily care of the children whilst arrangements were made for him to receive them for contact visits.
17. On 24 May 2007 the Oslo City Court granted Mr O., who then lived in the City of Drammen, the sole parental responsibilities and the daily care of the children until the applicant’s return to Norway after the end of her expulsion. The City Court granted the applicant a right of contact to the children. Until a possible expulsion this was to comprise a visit of the applicant at her residence in Oslo from Thursday to Monday every other week. Thereafter the contact visits were to take place for three weeks during the children’s summer holidays and one week during their Christmas holiday. The father was to assume daily care and the sole parental responsibilities until final judgment.
18. The City Court based itself on the assumption that relatively speaking there was little probability that the applicant would succeed in obtaining a reversal of the decision to expel her. In accordance with the assessment of the court appointed expert, it found that the father was the parent best suited to assume the care for the children and that it would be best for the children to live in Norway since their mother was sure that she would wish to return to Norway after the expulsion period. The children’s contact with both parents would be optimised if the care was granted to the father. The applicant lodged an appeal against this judgment to the High Court, the examination of which was at her request discontinued pending the outcome of the expulsion proceedings.
19. On 7 June 2007 the applicant requested the Immigration Appeals Board to reconsider its decision of 23 February 2007 regarding her expulsion. She argued that the measure could entail a permanent separation between the applicant and the children, that she had not been guaranteed any right to return to Norway after expiry of the prohibition on re-entry and that the father was unlikely to enable the applicant to exercise contact rights in her home country. She conceded that her offences when seen in isolation could provide a basis for expulsion. However, she disputed that the measure would be proportionate in that insufficient weight had been attached to the fact that her expulsion would lead to a separation between her as a main carer and her two small children. On 25 June 2007 the Board refused to alter its earlier decision.
20. On 2 October 2007 the applicant’s judicial appeal against the Immigration Appeals Board’s decision of 23 February 2007 was rejected by the Oslo City Court. But on 6 June 2008 the Borgarting High Court unanimously quashed the Board’s decision of 23 February 2007. While it was undisputed that the conditions in section 29(1)(a) had been fulfilled and the High Court found that the measure would not be disproportionate vis-à-vis the applicant, it did find that they would be disproportionate vis-à-vis the children, though it assumed that the decision of 23 February 2007 was not incompatible with Article 8 of the Convention
21. High Court held inter alia:
“In this concrete case expulsion cannot be said to be a disproportionate measure vis-à-vis the [applicant]. [She] had been fully aware that she returned to Norway with a false identity and has been aware of the consequences this could have for her. In such cases expulsion would be an ordinary reaction. The fact that criminal punishment was not added to the reaction cannot be taken to mean that the offence was less serious [...].
However, the wording of the statute does not solely cover the immigrant personally but encompasses also closest family, in this instance [the applicant]’s two daughters.
The High Court has found that the weight of their interests is such as to make the expulsion decision disproportionate and thereby invalid.
The daughters are respectively six and four years of age. [The applicant] has lived together with them since their birth and it must be assumed that she has been their main care person since the break up of her relationship with the children’s father in October 2005 until the summer 2007 when a judgment was delivered at first instance in the custody case. As stated above, the children now live with their father in Drammen. Until an eventual expulsion contact visits are to take place from Thursday to Monday every other week. [The applicant] will then receive the children at her place in Oslo. After expulsion, the contact visits should extend to three weeks during the summer holiday and one week during the Christmas holiday, according to point 2 of the operative provision in the child custody case.
The fact that [the applicant] lost the custody case in the City Court is closely connected to the decision on expulsion. The City Court found it best for the children to be able to stay in Norway. In light of what was stated in the City Court judgment about the statement given by the expert witness, it seems that also the latter’s statement in favour of the father was justified by the children being able to remain in Norway were he to be granted the daily care. In other words, the fact that [the applicant] lost the custody case in the City Court does not mean that there was not a close and good relationship between her and the children. Also, the reason why the City Court had prescribed limited access rights was the presumption that she would be expelled.
If the final outcome in the custody case were to be as decided by the City Court, the expulsion would entail a breaking off of the contact between [the applicant] and the children. It would no longer be an alternative that the children should accompany her to the Dominican Republic. The duration of the separation is uncertain. It is most probable that [the applicant] would not come to Norway as long as the prohibition on re-entry applies. Whether or not she would be able to obtain a visa or a residence permit in Norway after having been separated from her children for two years is difficult to predict, but appears hardly probable in light of the fact that she had previously entered the country with a false passport. In other words, in the worst case, the separation between mother and children could become permanent.
The High Court finds that a long lasting separation between the mother and the children would have very serious consequences for the children. In the years to come they would need close and frequent contact with both parents. It has not been submitted that the children have any relatives or close persons other than their parents, in Norway. This would mean that they would be particularly vulnerable should anything happen that make their father no longer able to assume parental responsibilities completely.
The negative consequences that an expulsion of [the applicant] would have for the children must be weighed against the interests of immigration control and the importance of effective implementation of expulsion decisions. Particular weight – normally a decisive one – ought to be attached to the latter consideration. However, in the present case the High Court has found that the interests of the children should carry more weight. The High Court finds that there are relatively few persons who are in the same situation as [the applicant], with twelve years of illegal stay in Norway and children who were born in this country and where there is hardly any prospect that the children will accompany [the applicant] if her expulsion were to be implemented.”
22. On an appeal by the State to the Supreme Court, the latter, by a judgment of 30 April 2009, upheld the City Court’s judgment, by three votes to two.
23. Mr Justice F. gave the following reasons which in the main were endorsed by the two other members of the majority:
“(43) I have concluded that the appeal must succeed.
(44) The expulsion order under review was made pursuant to section 29(1)(a), of the Immigration Act, whereby a foreign national may be expelled when the person concerned has ‘grossly or repeatedly contravened one or more provisions of this Act’. In the present case, there is no doubt that these conditions are met.
(45) However, the issue is whether the decision satisfies section 29(2), which reads:
‘Expulsion pursuant to the first paragraph, (a), (b), (c), (e) and (f) shall not be ordered if in consideration of the seriousness of the offence and the foreign national’s connection with the realm, this would be a disproportionately severe reaction against the foreign national [in question] or the closest members of the latter’s family.’
(46) This provision suggest that the seriousness of the offence should be weighed against the foreign national’s links to Norway. This is a matter of discretionary application of the law, where the courts have full power of judicial review, see Norsk Retstidende (“Rt” - Norwegian Supreme Court Law Reports) 2005-229, paragraph 34.
(47) I will first examine the seriousness of the offence.
(48) As stated, [the applicant] is guilty of repeated and gross breaches of the Immigration Act. She came to Norway in contravention of a two-year prohibition on re-entry, cf. sections 25 and 29(1) of the Immigration Act, as it was then worded. Moreover, she provided incorrect and misleading information concerning her identity, her previous residence in Norway and whether she had previously been sentenced, cf. sections 37 and 44 of the Act. Finally, she has resided and worked here unlawfully, cf. section 6 (1) and (2), and section 8(1) (3), of the Act.
(49) When assessing the seriousness of these offences, one should not attach considerable weight to the assessment of criminal liability. The breaches of the Immigration Act must rather be viewed in an administrative law perspective. A major purpose of the Immigration Act is to ‘provide a basis for control of entry and exit of foreign nationals and of their presence in the realm in accordance with Norwegian immigration policy’, cf. section 2(1). In view of the large number of applications submitted pursuant to the Act, the authorities must to a great extent base their control on the assumption that those who apply provide correct information and otherwise abide by the law and decisions taken under it. The system is thus based on trust. Regard for general deterrence therefore indicates that breaches should have consequences for applicants’ possibility of obtaining the rights to which the law applies.
(50) The views referred to are stated in Proposition No. 75 (2006–2007) to the Odelsting [the larger division of Norwegian Parliament] on [...] the (Immigration Act[2008]). The following is stated on page 289:
‘In the view of the Ministry, it is important to be able to respond with expulsion to cases of repeated and/or gross contraventions of the Immigration Act. Although such contraventions may normally also lead to criminal liability, from the point of view of procedural economy, it would be advantageous if an expulsion order could be made even in the absence of a legally enforceable criminal conviction and sentence. This would also enable a rapid reaction. It is noted that it would not be possible for the authorities to exercise effective control of all foreign nationals’ entry to and presence in Norway. The system must to a great extent be based on trust that the Immigration Act is complied with by those to whom it applies, including that persons who need a residence permit submit an application and provide correct information to the authorities. Unlawful entry, residence or employment without the requisite permits or the provision of incorrect information breaches this relationship of trust and renders the authorities’ enforcement of Norwegian immigration policy more difficult. If gross or repeated contraventions of the Immigration Act were to be left without consequences it may undermine respect for the legislation and have an unjust effect on those who abide by the law. Since an application would in any event be rejected if a foreign national does not fulfil the conditions for residence in Norway, a negative decision would not in itself constitute a sanction against the provision of incorrect information. The Ministry therefore regards it as important in the interest of general deterrence to be able to respond to cases of gross or repeated contravention of the Immigration Act with expulsion.’
(51) [The applicant]’s contravention of the Immigration Act gravely affects the control considerations that the Act is intended to safeguard. In my view, her offences must therefore be characterised as very serious.
(52) I will now examine whether there exists such a ‘connection with Norway’ that the expulsion is nevertheless disproportionate.
(53) [The applicant] has resided continuously in Norway since July 1996. It is nevertheless clear that the attachment she has thereby acquired to Norway does not make the expulsion a disproportionate measure in relation to her. The attachment has been established on the basis of unlawful residence and she has never had any legitimate expectation of being able to stay here. On this point, I find it sufficient to refer to Norges Offentlige Utredninger (Official Norwegian Report) 2004:20 “Ny utlendingslov” (“A New Immigration Act”), page 308, where the following is stated:
‘In legal and administrative practice it is assumed that significant weight cannot be placed on an attachment developed after the foreign national was aware that he or she could be expelled.’
(54) Almost three and a half years elapsed from the [applicant]’s arrest until the Directorate of Immigration took its decision to order her expulsion. The long processing time was particularly due to the fact that the expulsion case was not dealt with until her work permit and residence permit had been revoked. If the processing had been conducted in parallel, the time could have been reduced considerably. However, I do not find that this entails that the expulsion is a disproportionate measure in relation to [the applicant] herself.
(55) I will now examine the interests of the children.
(56) From section 29(2) of the Immigration Act it appears that an expulsion must not constitute a disproportionately severe measure vis-à-vis ‘the closest members of the foreign national’s family’. As the case now stands, it must be assumed that the children will remain in Norway with the father, and that they will have a considerably reduced contact with the mother during the period which the expulsion applies.
(57) Official Norwegian Report 2004:20 A New Immigration Act [Ny utlendingslov] states on page 308 that considerable weight ought to be attached to the interests of the children. After affirming that one could not place significant weight on a marriage contracted after the foreign national has become aware that he or she could be expelled, the following is added:
‘However, if the expelled person has a child of the new relationship, the proportionality assessment may have a different outcome, primarily out of regard for the child, but this question too must depend on a concrete assessment of all relevant considerations.’
(58) The committee proposed that it be clearly stated in the text of the Act that the best interests of the child should be a primary consideration. This was approved by the Ministry. In Proposition No. 75 (2006–2007) to the Odelsting on ... the [new] Immigration Act, the following is stated on page 292:
‘In cases affecting children, the best interests of the child must be a primary consideration. The proposal to include a clarification to this effect in the text of the Act has been supported by several instances consulted. The Immigration Appeals Board has pointed out that there is a danger of giving a distorted impression of relevance and importance by focusing on only one of the considerations that ought to be included in an overall assessment. It is nevertheless the Ministry’s view that it is correct to stress the regard for the best interests of the child in the text of the Act in order to ensure particular awareness of this. This involves no change in relation to current law, but may have a pedagogical significance.’
(59) Such a formulation has now been included in section 70(1), last sentence, of the new Immigration Act.
(60) That the best interests of the child shall be a primary consideration is also stated in Article 3 (1) of the United Nations Convention on the Rights of the Child [providing that the best interests of the child shall be a primary consideration] which, pursuant to section 2 (4) of the Human Rights Act, is applicable as Norwegian law. At the same time, it is clear that the Convention does not in itself prevent an expulsion order from being made, although this results in separation of the parents from the children. In Official Norwegian Report 2004:20 A New Immigration Act, the following is stated at page 310:
‘However, none of the provisions of the UN Convention on the Rights of the Child in itself prevents an expulsion order from being made. On the contrary, Article 9(4) assumes that the States may make expulsion orders even though this would result in the child being separated from its father or mother.’
(61) So far, the sources of law show that the interests of the children are primary, but not necessarily decisive.
(62) The Supreme Court has previously considered the significance of the strain that children are subjected to by expelling one of their parents. The case, Rt-2000-591, concerned the proportionality assessment pursuant to section 30(3) of the Immigration Act. The foreign national concerned had committed what was characterised as ‘very serious crime’. With regard to the question of the applicant’s children, the second voting judge stated – for the majority – that
‘it is normal for an expulsion to interfere with established family life in a manner involving strain, particularly when one must assume that the family will be separated as a result of the expulsion. However, in order for an expulsion to be deemed a disproportionate measure it must involve an extraordinary burden.’
(63) In Rt-2005-229, the Supreme Court unanimously concluded that this view must also be adopted in relation to section 29(2). In paragraph 36 of the judgment it was stated:
‘I find these assumptions also to be applicable in relation to the provision in section 29(2) of the Act. When a foreign national has committed very serious crime, expulsion is only disproportionate when it results in an extraordinary burden.’
(64) Paragraph 52 of the judgment further stated:
‘It is normal for an expulsion to interfere with established family life in a manner involving a burden financially as well as emotionally and socially, and it may easily lead to psychological problems. This applies not least when a family is separated as a result of the expulsion. Such strain is not in itself a sufficient argument for finding an expulsion to be a disproportionate measure.’
(65) As has been shown, both of the cases referred to above concerned expulsion on grounds of very serious crime. However, in line with my view regarding the seriousness of the contraventions of the Immigration Act, I find that a corresponding approach should apply in the present case.
(66) I note that such an interpretation is consistent with Article 8 § 2 of the European Convention. The case of Solomon v. the Netherlands ((dec.), no. 44328/98, 5 September 2000) concerned a question corresponding to that of the present case. The European Court of Human Rights held:
‘In the present case the Court takes into consideration that the applicant was never given any assurances that he would be granted a right of residence by the competent Netherlands authorities. He was allowed to await the Deputy Minister’s decision on his asylum request in the Netherlands. After asylum was denied him, his request for a stay of expulsion was refused by the competent court on 22 December 1994. From then onwards, the applicant’s residence in the Netherlands, which was already precarious, lost what little foundation it had had until then. Family life between the applicant and his Netherlands national partner – and later, with their child – was developed after this date. The Court is of the opinion that in these circumstances the applicant could not at any time reasonably expect to be able to continue this family life in the Netherlands....’
(67) In its subsequent case-law, the European Court has stuck to this approach (see for example the judgment of 31 January 2006 in the case of and Rodrigues da Silva and Hoogkamer v. the Netherlands no. 50435/99, § 39, ECHR 2006). I refer also to the Supreme Court’s judgment in Rt-2005-229, paragraph 37.
(68) As has been shown above, my view is also consistent with Article 3 § 1 of the UN Convention on the Rights of the Child, cf. Official Norwegian Report 2004:20, page 310.
(69) I will now carry out a concrete assessment of whether the burden will be extraordinarily great for [the applicant]’s children. I agree with the State that this assessment must take into consideration that [the applicant] is to be expelled for a period of two years. When this period has elapsed, she may – like other people – apply for a residence permit. In my view, an evaluation of the probable outcome of such an application is not relevant to the current review. However, she would have the possibility to obtain judicial review of any rejection.
(70) As already mentioned, it must be assumed that the children will continue to reside with Mr O.. They have lived with him since the Oslo City Court by judgment of 24 May 2007 granted him the daily care and parental responsibilities in respect of the children. In its judgment, the City Court placed great emphasis on the expulsion case, but added:
‘Like the expert witness, the City Court has formed a reasonably good impression of the father, and considers that he is the parent who is best suited to take care of the children in the present situation. In the view of this court, there is much to indicate that the father, regardless of whether the mother after some years obtains permission to return to Norway, is the party best suited to take care of the children. The father appears more outgoing than the mother. He speaks good Norwegian, is in employment and seems, to a greater extent than the mother, to be capable of stimulating the children and taking care of them.’
(71) It is further stated in the judgment that Mr O. has stated that he will arrange for the children to have access to [the applicant], also if she is expelled. He envisages that this might be possible during summer and Christmas holidays. I have no grounds for assuming that it should not be possible to maintain contact between the children and [the applicant] during the expulsion period.
(72) In view of this, I find it established that the children’s care situation will be satisfactory even if the [disputed] decision is upheld. In any event, it will not differ from what is normal in instances where one of the parents is expelled from the country. Nor is there anything in the case to indicate that the children are more closely attached to their mother than to their father.
(73) I add that there is no reason to believe that Mr O.’s ability to assume care will be reduced in the nearest future. If this nevertheless were to occur, it would be possible to grant a dispensation from the prohibition of entry under section 29 (4), third sentence, of the Immigration Act.
(74) There is no information in the case suggesting that the children have a special need for care. Little evidence has been adduced regarding the manner in which the expulsion case has affected the children, though it cannot be excluded that it has caused a strain on them too. However, I do not find a basis for assuming that any such burden has been greater than ordinary.
(75) In the above-mentioned decision reported in Rt-2005-229, the Supreme Court concluded that the burden on the children had been so great as to make their father’s expulsion a disproportionate measure. However, in that case, the children had special care needs. There was moreover uncertainty regarding the mother’s ability to assume care. Paragraph 53 of the judgment stated:
‘What is particularly significant in the present case is that both parents have been separated from the children on two occasions owing to the circumstances that now constitute the grounds for expulsion, first in connection with their detention on remand and then in connection with their serving their sentences. The High Court held that the children ‘according to the evidence adduced, have already been frightened by what has happened and by their parents absence during the remand and subsequent imprisonment. This burden would be reinforced by a new absence of the father’. On the basis of the information received concerning the health of the spouse, there must in my view be a significant risk that she will neither be capable of dealing with the problems that expulsion of A would entail for the children nor with taking care of them. The fact that she will probably be able to obtain some help from her family is unlikely to significantly reduce the strain on the children, which the High Court ... finds to be abnormally great.’
(76) The first voting judge found the weighing of interests ‘particularly difficult’, but concluded ‘not without doubt’ that the strain on the children was so great as to make the expulsion disproportionate.
(77) As has been shown above, there are no corresponding circumstances in the present case. On the contrary, we are here faced with a normal situation. I therefore have difficulty in accepting that the strain on the children is so great as to make the expulsion a disproportionate measure.
(78) The long processing time has also been raised in relation to the children. However, I cannot see that this should be of significance in relation to their interests.
(79) I add that, should the expulsion in the present case be regarded as disproportionate, it would be difficult to envisage when it should be possible to expel a foreign national who has a child with a person holding a residence permit. It would have the consequence that a foreign national in such a situation would normally be protected against expulsion. It would imply a change in current practice, and would moreover have clearly undesirable aspects. In the judgment reported in Rt-2008-560, the first voting judge expressed corresponding views. Paragraph 56 of the judgment stated, inter alia:
‘As a general view, I note that, should it be deemed sufficient for obtaining the revocation of an expulsion order that the person concerned seeks political asylum and gives birth to a child here in Norway, the effectiveness of the expulsion order would be considerably undermined.’
(80) I concur with this view.”
24. Mrs Justice I. gave the following reasons which in the main were endorsed by the other member of the minority:
“I have found that the appeal should be rejected. Like the High Court, I hold the view that the decision to expel [the applicant] with a two-years prohibition on re-entry is disproportionate and thereby invalid.
(84) I concur with the first voting judge that the proportionality assessment must consist of a balancing, on the one hand, of considerations pertaining to the seriousness of the offences of the Immigration Act committed by [the applicant] and, on the other hand, the interests of [the applicant]’s two children. The [the applicant]’s own interests are not such as to make the decision disproportionate.
(85) In judgments delivered by the Supreme Court in cases concerning expulsion on grounds of serious crime, cf. section 29(1)(c) or section 30(2)(b) of the Immigration Act, it has been held that strain owing to the splitting up of families as a result of expulsion is not in itself sufficient to make expulsion a disproportionate measure, cf. for example Rt-2005-229, paragraph 52. It has furthermore been established that the more serious the criminal offence, the stronger the attachment must be in order to hinder expulsion, see paragraph 36 of the same judgment.
(86) It is not certain how one is to judge the seriousness of [the applicant]’s contraventions of the Immigration Act in relation to this case-law. I concur with the first voting judge that the prescribed penalty scale is not decisive. Regard must be had to the consideration that the purpose of the Immigration Act is to provide a basis for control of entry and exit of foreign nationals and of their presence in Norway in compliance with Norwegian immigration policy, cf. section 2 of the Act. [The applicant]’s entry 20 months prior to expiry of the prohibition on re-entry and her subsequent continued presence in Norway were made possible by her use of a passport stating a different identity than that used in connection with her first entry and by her concealment of her conviction [forelegget] and prohibition on re-entry. This constituted serious contraventions of the legislation designed to safeguard these purposes. On the other hand, it can in my view hardly be correct to place these breaches of the Immigration Act on an equal footing with very serious crime.
(87) As regards the interests of the children, a natural point of departure is Article 3 of the UN Convention on the Rights of the Child, which lays down that the best interests of the child shall be a primary consideration, inter alia, in cases where children are affected by the exercise of public authority. When assessing the weight to be attached to this consideration in expulsion cases, it is of interest that the Immigration Act 2008, which will enter into force from the beginning of next year, contains a provision on proportionality, corresponding to that of section 29(2) of the Immigration Act [1988], which states expressly that the best interests of the child shall be a primary consideration in cases affecting children. In Proposition No. 75 (2006–2007) to the Odelsting, the Ministry has stated at page 292 that the proportionality provision is a continuation of the law as currently applicable, but that the addition concerning the best interests of the child is intended to ensure particular awareness of this factor. The majority of the Parliamentary Standing Committee which considered the bill, stressed the need to ensure that sufficient regard be had to the best interests of the child in cases concerning expulsion, and requested the Ministry to consider issuing regulations to ensure that the best interests of the child be safeguarded to an even greater extent in connection with expulsion cases, cf. the Standing Committee’s Recommendation No. 42 (2007–2008), point 14.2.
(88) No evidence has been presented concerning the effects on young children of separation for a long period from their primary caregiver during early childhood. However, I would mention that the UN Committee on the Rights of the Child in paragraph 18 of its General Comment No. 7 (2005) points out that young children, i.e. children under eight years of age, are especially vulnerable to adverse consequences of separations from their parents. It states inter alia:
‘Young children are especially vulnerable to adverse consequences of separations because of their physical dependence on and emotional attachment to their parents/primary caregivers. They are also less able to comprehend the circumstances of any separation. Situations which are most likely to impact negatively on young children include ... situations where children experience disrupted relationships (including enforced separations), ...’
(89) The present case involves two girls who are now respectively six years ten months and five years four months of age. They were born in Norway and have lived there their entire lives. [The applicant] was their primary carer from the children’s birth until the father – as a result of the expulsion case – was granted custody two years ago. Since then [the applicant] has had an extended right of contact with the children. It must be assumed that [the applicant], besides the father, is the most important person in the children’s lives.
(90) No assessment has been adduced regarding the children’s problems or needs. However, in my view, it must be assumed that they are vulnerable. They have grown up in a family that has lived under many years of stress owing to the threat of expulsion of their mother. The children have experienced the parents’ separation and subsequently their being moved from the mother to the father, and are now at an age where separation from the mother will be difficult to understand, cf. the above quotation from General Comment No. 7. Nor have the children any other relatives or close family in Norway. There can be no doubt that expulsion of [the applicant] with a two years’ prohibition on re-entry will be a particularly far-reaching measure for the children. In this connection, I would mention that the High Court has assumed it to be most unlikely that [the applicant] will come to Norway during the period of prohibition on re-entry, and that it is very uncertain that the children will have the opportunity to visit her outside Norway. What will happen when the two years have elapsed is uncertain.
(91) A survey has been submitted of the Immigration Appeals Board’s decisions to expel foreign nationals who have children on the ground of their having submitted incorrect information to the immigration authorities. Counsel for the State has referred particularly to two decisions from 2007. In both cases, the prohibition on re-entry was reduced to two years by the Immigration Appeals Board. The survey does not include such detailed information as to make it possible to see whether a decision in [the applicant]’s favour would constitute a departure from these decisions, and I feel somewhat in doubt that these cases involved bonds of equal duration and closeness. Should there be question of a departure, this would be a result of increased emphasis being made on the needs of the children, in my view, in accordance with the indications provided in connection with adoption of the new Immigration Act.
(92) The first voting judge has stated that, if the expulsion in the present case were held to be disproportionate, it would be difficult to envisage when it should be possible to expel a foreign national who has children together with a person holding a residence permit. I do not agree with this. A concrete assessment must be made balancing the seriousness of the offence against the bonds between the foreign national concerned and the child, and having regard to the child’s situation on the whole. A central factor in this case is the long-term bonds between the children and their mother and the strain to which they have been subjected. In such a situation, it is in my view difficult to reconcile the condition that the best interests of the child shall be a primary consideration with the view that expulsion of the children’s mother is a proportionate measure vis-à-vis the children.”
25. Section 29(1)(a) of the Immigration Act 1988 (Act of 24 June 1988 Nr 64, Lov om utlendingers adgang til riket og deres opphold her – utlendingsloven - applicable at the material time and later replaced by the Immigration Act 2008) read:
“Any foreign national may be expelled
a)when the foreign national has seriously or repeatedly contravened one or more provisions of the present Act or evades the execution of any decision which means that the person concerned shall leave the realm.”
26. Even when the conditions for expulsion pursuant to section 29 of the Immigration Act were satisfied, expulsion could not take place if it would be a disproportionate measure against the foreign national or the closest members of his or her family. Section 29 § 2 of the Immigration Act 1988 provided:
“Expulsion pursuant to the first paragraph, sub-paragraphs (a), (b), (c), (e) and (f) of this section, shall not be ordered if, having regard to the seriousness of the offence and the foreign national’s links to the realm, this would be a disproportionately severe measure vis-à-vis the foreign national in question or the closest members of this person’s family.”
27. According to section 29(4), an expulsion order may be accompanied by a prohibition on re-entry into Norway. However, the person expelled may, on application, be granted leave to enter Norway. Furthermore, according to well-established administrative practice, when considering an application for leave to enter under section 29(4), the Directorate of Immigration was under an obligation to consider the proportionality of its decision on prohibition on re-entry. The provision read:
“Expulsion is an obstacle to subsequent leave to enter the realm. Prohibition on entry may be made permanent or of limited duration, but as a general rule not for a period of less than two years. On application the person expelled may be granted leave to enter the realm, but as a rule not until two years have elapsed since the date of exit.”
28. Section 41(1) provided inter alia:
“Any decision which means that any foreign national must leave the realm is implemented by ordering the foreign national to leave immediately or within a prescribed time limit. If the order is not complied with or it is highly probable that it will not lead to the foreign national’s leaving the realm, the police may escort the foreign national out. [...] Any decision which applies to implementation is not considered to be an individual decision, cf. section 2 (1)(b), of the Public Administration Act.”
VIOLATED_ARTICLES: 8


ITEMID: 001-23557
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: MARCINKOWSCY v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicants, Mr Stanisław and Mrs Zdzisława Marcinkowscy, are Polish nationals who were born in 1945 and 1940 respectively. They are married and live in Krakow, Poland. They are represented before the Court by Mr Z. Cichoń, a lawyer practising in Krakow, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 July 1988 the applicants applied to the Kraków Local Council (Dzielnicowa Rada Narodowa) for an allocation of a flat in which they had been living since 1953.
On 28 April 1989 the Head of the Kraków-Śródmieście Local Office (Kierownik Wydziału Spraw Lokalowych Urzędu Dzielnicowego KrakówŚródmieście) dismissed the application. The applicant appealed against this decision.
In the meantime, the applicants lodged complaints about the inactivity of the administrative authorities.
On 22 October 1991 the Head of the Housing Division of the Kraków Municipal Office (Dyrektor Wydziału Mieszkaniowego Urzędu Miasta Krakowa) refused to allocate the flat to the first applicant. The applicants appealed.
On 16 January 1992 the Krakow Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) quashed the impugned decision and remitted the case for reexamination.
On 25 May 1993 the Mayor of Kraków (Prezydent Miasta Krakowa) stayed the proceedings. The applicants appealed against this decision.
On 19 April 1994 the Krakow SelfGovernment Board of Appeal resumed the proceedings.
On 21 July 1994 the Head of the Housing Division of the Kraków Municipal Office refused to allocate the flat to the first applicant. The applicants appealed against this decision.
On 9 November 1994 Kraków Self-Government Board of Appeal quashed the impugned decision and discontinued the proceedings. The applicants lodged a complaint with the Supreme Administrative Court (Naczelny Sąd Administracyjny).
On 24 November 1995 the Supreme Administrative Court quashed the both impugned decisions of 21 July and of 9 November 1994.
On 19 July 1996 the Head of the Housing Division of the Kraków Municipal Office discontinued the proceedings concerning the allocation of the flat to the applicants. The applicants appealed.
On 17 October 1996 the Kraków SelfGovernment Board of Appeal dismissed their appeal.
Article 35 of the Code of Administrative Procedure lays down timelimits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If those time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures preventing future such delays be applied.
Until 1 October 1995, under Article 216 of the Code of Administrative Procedure, a party to administrative proceedings could, at any time, lodge with the Supreme Administrative Court a complaint about the fact that an administrative authority had failed to issue a decision.
On 1 October 1995, when a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) took effect, Article 216 of the Code of Administrative Procedure was repealed.
Under section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint against inactivity on the part of an authority obliged to issue an administrative decision.
Section 26 of the Law provides:
“When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.”
Pursuant to section 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question.


ITEMID: 001-75337
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF C. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8 (refusal of custody);No violation of art. 8 (access visits);No separate issue under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1955 and lives in Cartigny, Switzerland.
10. The applicant and his wife, B., who was of Finnish origin, had two children, a boy T. born on 2 June 1987 and a girl A. born on 28 September 1989. The family lived together in Switzerland until 1993 when B. took the children to Finland where she took up residence with L. as her female partner.
11. On 10 June 1994, B. applied for divorce and for custody of the children.
12. On 10 October 1994 the parents reached an interim agreement whereby the children would stay in Finland with their mother for the moment and the applicant have the right to three supervised visits.
13. The applicant states that on 13 October 1994 he became aware that the children’s maternal grandmother had made a complaint to the social services against B.’s female partner, L., alleging that she had sexually abused A. There is some indication in the documents that the applicant may also have lodged a complaint on this ground. The criminal charges lodged against L. were later dismissed by the courts.
14. Meanwhile, it appears that the applicant took proceedings with a view to having the children returned to Switzerland under the Hague Convention. However, by decisions of the Court of Appeal dated 7 December 1994 and by the Supreme Court dated 15 June 1995, the applicant’s application for return was refused, principally on the ground that he had voluntarily entered into an interim agreement that the children remain in Finland with their mother.
15. On 20 August 1996, the District Court awarded sole custody of the children to the mother, finding that the children had lived with their mother in Finland since 1993 and that it was in their best interests to remain with her. On 8 July 1997, the Court of Appeal upheld this decision, as did the Supreme Court on 14 November 1997.
16. The applicant was however granted visiting rights. It appears that the children visited him in Switzerland during Easter and the summer of 1997 and met with him in Finland in 1998 (twice) and 1999 (three times).
17. On 30 August 1999, B., the mother, died. The children were then aged twelve and nine years respectively.
18. The applicant returned immediately to Finland. On 23 September 1999, he lodged a request that the children, still living with L., be placed in a foster home and that he be accorded visiting rights.
19. Applications for custody of the children were lodged by both L. and by the applicant. During October 1999, the children were interviewed twice by a team consisting of a child psychiatrist and two psychologists. They expressed their wish to stay with L. because they felt safe and were used to living with her. A. was reported as stating that she would like to meet the applicant occasionally but only when she wished, while T. was reported as stating that the applicant was not part of his family and that he neither wanted to meet him or live in Switzerland.
20. The applicant saw the children three times during September 1999 in supervised contact visits. There was another meeting outside the social workers’ premises.
21. In a Social Welfare Board report dated 26 October 1999, it was stated that, following the mother’s death, L.’s influence on the children had increased and the children turned to her for support. It was noted that the children were not able to act against L.’s will, because they were dependent on her at that time. Consequently, the children were in a state of conflict, as they were not allowed to like the applicant. The report considered that the lack of contact with their close relatives endangered the development of their identity.
22. On 21 December 1999, after oral hearings at which the applicant, L. and another 18 witnesses, including a number of social workers involved in the case, were heard, the District Court awarded custody to the applicant. It observed inter alia, that according to the evidence, L. had been involved in bringing up the children since their return to Finland. According to a number of social workers involved in the case, the applicant was considered fit to be a custodial parent as, for example, in dealing with conflicts he had always put the children’s best interests first. The meetings between the children had also gone well. It concluded that in fact both L. and the applicant were fit as custodians.
23. As regarded the views of the children, the District Court recalled that according to a statement of 23 February 1998 given by a social worker during previous proceedings, T.’s wishes were not entirely his own; he had been influenced by B., his mother. His wishes were in contradiction with what he had told the social worker about the meetings with the applicant which had taken place. The social worker had noted that the fact that B. did not want T. to travel to see the applicant was significant and pointed out that it would be very important for the children’s psychological development that they develop a more constructive view of the applicant. It recalled the evidence of a friend of B. and L., who had given evidence before the court, had stated that the children’s attitude towards the applicant had begun to be more positive from the summer of 1998, but that no meetings had taken place as from March 1999, apparently due to the fact that the children’s activities were given priority and the meetings with the applicant tended to be proposed at short notice. T. had told her that it would be alright to meet with the applicant if he could decide when. A. had told her that she would like to meet with the applicant some day, but not at that time. T.’s attitude towards meeting the applicant was therefore fairly positive. Following B.’s death, everything had changed when the applicant came to see his children. As he allegedly had said that the law would make the children move to live in Switzerland, they did not want to meet with him anymore. According to this witness, the children feared moving to Switzerland.
24. The District Court considered that T.’s attitude during the recent interviews was in contradiction with what had happened during the meetings with the applicant, which had all gone well. It found that none of the persons heard before the court had said that the children feared the applicant and concluded that, as the atmosphere in which the children had been living had obviously affected their wishes and hopes, it was not possible to analyse what their true views really were. Therefore, their expressed wishes could not be decisive when deciding the case. Noting that the case should be decided in accordance with the children’s best interests, it decided that, given the strained relations between L. and the applicant, custody should be awarded to the latter. It was evident that L. would not be able to encourage the relationship between the children and the applicant enabling them to stay in contact. Therefore, the District Court ordered that custody be awarded to the applicant.
25. Pending L.’s appeal against the decision, the enforcement of the order was suspended by the Court of Appeal on 22 December 1999. According to the evidence of various social workers, the children had reacted to his expressed intention of taking them to Switzerland by refusing to meet with him unless L. was present. The applicant allegedly refused to meet with the children under these terms. The applicant’s attempts to enforce contact visits also apparently failed due to the children’s refusal to see him.
26. On 3 April 2000, the Court of Appeal overturned the decision concerning the suspension and requested the Social Welfare Board and its Swiss counterpart to report on the case. During the period June-September 2000, pursuant to the court’s request, the children were interviewed five times by social workers, three times in the presence of L. and twice alone. The social workers’ efforts to arrange a meeting between the children and the applicant were unsuccessful due to the children’s opposition. It was reported by the social worker in later oral evidence that the children continued to express their wish to live with L. During the interviews, the children had turned to L. for support and been dependent on her. The children’s memories of the applicant were, however, good. Nothing suggested that the children would have had any reason to feel unsafe in the applicant’s company. According to one of the social workers at the meetings, the wishes that the children expressed were more dependent on the wishes of L. than their own will. According to the evidence given by other witnesses in the Court of Appeal, including other social workers, the children expressed their wish to be left alone and that they wanted to stay in Finland every time the applicant was brought up for discussion. They seemed to fear moving to Switzerland.
27. Meanwhile, it appears that the applicant applied to the District Court for its original order to be enforced. This request was refused on 31 August 2000. His appeal to the Court of Appeal was later rejected on 28 June 2001 as meanwhile it had reached a fresh decision in the case. An application by the applicant to have the children placed in a foster home away from L. was also dismissed by the Social Welfare Board on 5 April 2000 and his appeal rejected by the Administrative Court of Helsinki on 19 December 2000.
28. On 23 March 2001, after an oral hearing over four days during February and at which the applicant and L. were heard as well as eleven other witnesses from the District Court proceedings and four new witnesses, the Court of Appeal upheld the District Court’s judgment. It ordered that the children move to live with the applicant on 16 August 2001, after a transitional period during which the children could meet with the applicant one weekend per month and one week during the summer.
29. In its judgment, the Court of Appeal agreed that both L. and the applicant were fit to have custody: nothing suggested that they would not be fit. Given the ages of the children, it considered that their view had to be taken into account, but it was also evident that the strained relationship and litigation between the applicant and B., and later on L., had had influence on their view. It considered that the negative attitude towards meeting with the applicant was based on the fear of having to move to Switzerland. Nothing suggested that the children feared the applicant as such. Although the children were as mature as other children their age, they could not however be given the absolute right to decide on their future, particularly in light of their extremely difficult situation at that time. Notwithstanding the law on enforcement, the court did not consider that in deciding on custody it was bound to follow the opinion even of a child aged 12 or more. Concluding that the decision should be based on what was in their best interests, it found that the relationship between the children and the applicant was very important for a well-balanced development. It furthermore found that the fact that the applicant had said that he would allow the children to keep in touch with L. was in the best interests of the children. While it was true that the children appeared closer to L. and their environment (including their home, school, hobbies and close personal relations) would stay the same if custody was awarded to L., the Court of Appeal concluded, nonetheless, that the children’s views did not correspond to their best interests. A situation which would lead the children and the applicant drift further apart was not in their best interests. Accordingly, it ordered that the applicant be awarded custody from 16 August 2001 after a transitional period of increased contact with the children.
30. The applicant visited Finland in March, April and May 2001, requesting visits with his children. On 30 March 2001, the applicant arrived in Helsinki and requested to see the children the same day. The social worker contacted L. to inform her of this and reported that the children refused. They allegedly wanted L. or another person to be present whereas the applicant refused any third party involvement. On only one occasion, in May 2001, did a visit take place when it was agreed between the parties that the children see the applicant at their maternal grandmother’s. However, only T. appeared, accompanied by a friend and one of L.’s lawyers. On this occasion, an incident occurred, the accounts of which vary but to which the police were called. T. subsequently informed his social worker that he was afraid of his father, who had tried, T. alleged, to keep him in the grandmother’s apartment by force and stated that he did not wish to see him again. The children did not appear at the next meeting in May 2001. They had already informed him that it would serve no purpose for him to come to Helsinki as they did not wish to see him. The social workers had several meetings with the children during this period and also made contact with their school seeking to persuade the children to attend therapy sessions. The children were recorded as stating that the applicant only made critical comments and demands and held strong views that they did not wish to live their friends and the environment they knew and that they did not trust their father. T. stated that he feared that his father would attempt to force them to leave Finland.
31. L. applied for leave to appeal. On 20 June 2001, the Supreme Court granted L. leave to appeal and suspended the enforcement of the Court of Appeal’s order. L. applied for an oral hearing, requesting that the parties, and possibly also the children, be heard. In his submissions to the Supreme Court in reply, the applicant applied for interim visiting rights and for the current psychological state of the children to be examined. He also requested that if L.’s request for an oral hearing was granted the Supreme Court should rehear the evidence presented before the lower courts.
32. On 19 October 2001, the Supreme Court gave judgment on the outstanding issues (Supreme Court Reports 2001:110). It re-iterated that it had rejected the request for an interim order as being purposeless and the request for a psychological examination as being unnecessary. It also rejected the request for an oral hearing as unnecessary in the circumstances and for the reasons set out in its judgment.
33. The Supreme Court recalled that, according to the Custody Act, the issue of custody had to be decided with regard to the child’s best interests and that if the custodial parent of the children died, custody could be given either to the other parent or to another person, depending on where the best interests of the child lay. It agreed with both the lower courts that the applicant and L. were both fit to act as custodians. Both children however had said that they wanted to stay in the environment which they knew and with L. Their views had been thoroughly examined before both the District Court and the Court of Appeal and although the conflict between the adults had apparently disturbed the relationship between the children and the applicant, there was nothing to suggest that their wish to remain with L. was not their own independent opinion, in particular given their age and maturity.
34. The Supreme Court referred to section 2 of the Act on the Enforcement of Decisions concerning Custody and Access Rights and recalling that T. was 14 and A. was 12, found that a custody decision which required the children to move would not be possible to enforce. Having regard to the purpose of awarding custody, it would not be in the children’s best interests to issue a custody order to a parent to whom they could not be transferred against their will. As the relations between the applicant and L. were bad, there was no reason to consider that it would be possible for the applicant to have custody while they continued to live with L. as that would render it impossible to take practical decisions concerning the children’s lives. In the circumstances of this case, it was therefore not in the best interests of the children to transfer custody to the applicant against their will but custody should be awarded instead to the person with whom they were currently living.
35. The Supreme Court went on to remark that future contact visits could be carried out under agreement or court order but that given the age of the children it would be dependent on their willingness to see the applicant. It underlined that according to the Custody Act, the custodian of children was under an obligation to co-operate in order to promote and maintain relationships between children and a parent. It did not make any order on the point. The applicant had not made any application in that regard.
36. The Supreme Court therefore overturned the decisions of the lower courts and awarded custody to L.
37. On 16 April 2002, the Administrative Court of Helsinki dismissed the applicant’s renewed request for the children to be placed in a foster home.
38. Custody of children is governed by the 1983 Act on Child Custody and Right of Access with regard to Children (laki 361/83 lapsen huollosta ja tapaamisoikeudesta, lag 361/83 ang. vårdnad om barn och umgängesrätt – “the 1983 Act”). Section 1 provides that the aim of such custody is to ensure the child’s balanced development and well-being, regard being had to the latter’s special needs and wishes, as well as to encourage a close relationship between the child and the parents.
39. The court may order that custody of a child be entrusted to one or more persons together with, or instead of, the parents (section 9 § 1). It may transfer custody from the parents to other persons only if, from the child’s point of view, there are particularly strong reasons for doing so (section 9 § 2). It is also empowered to decide on access (section 9). The aim of access is to secure a child’s right to maintain contacts with a parent with whom he or she is not living (section 2).
40. In deciding on matters of custody and access the competent court must take into account the wishes and interests of the child in accordance with the following considerations: primary emphasis must be placed on the interests of the child and particular regard should be had to the most effective means of implementing custody and access rights in the future (section 9 § 4 and section 10 § 1); the child’s views and wishes must, if possible and depending on its age and maturity, be obtained if the parents are unable to agree on the matter or if the child is being cared for by a person other than its custodian or if it is deemed necessary in the latter’s interests; the consultation must be carried out in a tactful manner, taking into account the child’s maturity and without causing harm to its relations with the parents (section 11).
41. Section 2 of the Act on the Enforcement of Decisions concerning Custody and Access Rights (laki 619/1996 lapsen huoltoa ja tapaamisoikeutta koskevan päätöksen täytäntöönpanosta, lag 619/1996 om verkställighet av beslut beträffande vårdnad om barn och umgängesrätt), which entered into force on 1 December 1996, provides that if a child has reached the age of twelve, enforcement must not take place against the child’s will. Enforcement must not take place against the will of a younger child, if the child is sufficiently mature for its wish to be taken into account.
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 8