Credit: UN Photo/Loey Felipe
On March 23, 2017, a chamber of the European Court of Human Rights (ECtHR) ruled that Finland did not violate the rights of a Finnish national with an intellectual disability, A.-M.V., when the domestic court refused to replace his mentor who would not allow him to move to his choice of residence. A.-M.V. desired to live in a village far from his hometown because his foster family had moved there, but his mentor denied his wishes, finding it best that he remain where his biological family resides. Before the ECtHR, he alleged violations of Article 8 (the right to respect for private and family) of the European Convention on Human Rights (ECHR) and Article 2 of Protocol No. 4 to the European Convention (the right to freedom of movement). See ECtHR, A.-M.V. v. Finland, no. 53251/13, Judgment of 23 March 2017. The Court found that there had been an interference to A.-M.V.’s right to respect for private and family life, but that given the facts of this case, the interference was justified as it balanced A.-M.V.’s will and preferences with “the need to protect his interests.” See id. at paras. 91-94.
The ECtHR took into account Article 12 of the United Nations International Covenant on the Rights of Persons with Disabilities (ICRPD), noting that the UN Committee on the Rights of Persons with Disabilities (CRPD) – the treaty body that monitors compliance with the ICRPD and interprets its provisions – requires States to replace substitute decision-making models, often found in guardianship laws, with a supported decision-making model. The latter, according to the Committee, takes into account the person’s will and preferences while the former does not. See id. at paras. 42-45. The Court also acknowledged a third party submission elaborating on supported decision-making models, which, the third party explained, guards against overriding the preferences of the person with a disability. See id. at paras. 66-68.
Case Background
A.-M.V. is a man with an intellectual disability who was taken into public care along with his two brothers and was temporarily placed in a foster family in 2001. See id. at para. 6. In 2007, his foster family moved with him to a northern village without notifying the child welfare authorities, as required by law. See id. at para. 8. The foster family also decided, without notifying the child welfare authorities, that it would send A.-M.V. to a vocational school 300 kilometers away from their home. See id. at paras. 7-8. Due to the failure to notify child welfare authorities of the move, the competent child welfare authority removed A.-M.V. from the foster family and placed him in a home for children with disabilities located in his hometown. See id. at para. 8. A.-M.V.’s foster parents challenged in court his placement in the home for children with disabilities unsuccessfully. See id.
After A.-M.V. turned 18, the court first appointed a mentor for A.-M.V. for the purpose of deciding “matters other than those pertaining to his person” and later appointed a mentor to assess the applicant’s best interests, including for matters pertaining to his person. See id. at paras. 10-11. The domestic court assigned the second mentor on December 30, 2008 to resolve the conflict that arose between the child welfare service and A.-M.V.’s former foster family, regarding A.-M.V.’s placement. See id. at para. 11. The foster family’s court case challenging his placement concluded on December 10, 2008. See id. at para. 8. A.-M.V. and his biological parents did not object to the new mentor’s appointment. See id. at para. 11.
In January 2009, A.-M.V.’s foster parents brought him back to live with them, which, according to the Court, “[invoked] his decision to move there to live with them” as he “considered them to be his real family.” See id. at 12. The authorities again removed A.-M.V. “against his will” and was placed in a “special living unit.” See id. In June 2009, subject to the Guardianship Services Act in Finland, the domestic court again appointed a mentor to asses all matters concerning his property and his person. See id. at para. 13. In doing so, the domestic court found that A.-M.V.’s diminished mental capacity prevented him from looking after his own interests. See id. at para. 13.
In 2011, A.-M.V.’s mentor decided against his will that it was in his best interest to live in the hometown where his biological family members lived as opposed to a village where he only knew his foster parents. Although A.-M.V. was given the option to visit his former foster parents during the holidays, he objected and requested that the court appoint another mentor to decide matters pertaining to his place of residence and education. See id. at paras. 14-15.
Taking into account an expert evaluation, A.-M.V.’s testimony, and the testimony of his biological and foster family, the domestic court agreed with the already appointed mentor that it was in A.-M.V.’s best interest to remain in his hometown and found no reason to replace the mentor with another person that could reevaluate A.-M.V.’s place of residence and education. See id. at para. 19. The State appellate court agreed with the lower court, and the Supreme Court of the State refused to grant A.-M.V.’s appeal. See id. at paras. 21-23. In reviewing A.-M.V.’s current situation, the ECtHR noted that he still wishes to live closer to his foster mother and not in his home town where he continues to reside. See id. at para. 25.
ECtHR Analysis
The ECtHR first analyzed A.-M.V.’s allegation that the State violated his Article 8 right to private and family life because, he argued, the State refused to assign a new mentor to evaluate matters concerning his place of residence and education. See id. at para. 69. At the onset, the ECtHR stated that Article 8 aims to protect individuals from arbitrary interferences by public authorities into their private and family life. An interference may be justified and lawful if it is in accordance with the law, pursues a legitimate aim, and is necessary in a democratic society. See id. at para. 70. The Court observed that the domestic court’s refusal to change A.-M.V’s mentor arrangement resulted in an interference because it denied A.-M.V. the opportunity to decide where and with whom to live. See id. at para. 77. The ECtHR also noted that when there is an interference to the rights of a group in a vulnerable situation, the “State’s margin of appreciation is substantially narrower” given the history of prejudice against such populations. See id. at para. 73. Therefore, the Court sought to determine if the interference was justified, examining in turn whether the interference was in accordance with the law, pursued a legitimate aim, and was necessary in a democratic society. See id. at para. 77.
The interference with A.-M.V.’s rights in this case was subject to Finland’s Guardianship Services Act, which neither party disputed had the legitimate aim of protecting A.-M.V.’s health and wellbeing. See id. at para. 80. As such, the ECtHR concluded that it was in accordance with the law and that it pursued a legitimate aim. See id. at 80.
An interference is “necessary in a democratic society” if it answers a “pressing social need” and is proportionate to the legitimate aim pursued. See id. at para. 81. The ECtHR noted that as provided in the Guardianship Services Act, a mentor could only cover matters pertaining to A.-M.V.’s person if the mentor was competent to represent him, and only to the extent that A.-M.V. would not be able to understand the significance of the matter at issue. See id. at paras. 30, 85.
The ECtHR found that the State’s interference with A.-M.V.’s rights – in denying him a change in mentor to reconsider his place of residence – was based on its determination that A.-M.V. did not understand the significance of the issue of his residence. See id. at 85. Granting the State its margin of appreciation, the ECtHR did not find any reason to call into question the domestic court’s assessment because it found that the domestic court considered all aspects of A.-M.V.’s situation, specifically his intellectual capacity and the evidence relating to his present and prospective circumstances if he moved. See id. at paras. 85-86. In particular, the ECtHR noted that the domestic court had made its decision based on A.-M.V.’s inability to understand what was at stake if he moved in this particular circumstance and not based on his status as a person with a disability. See id. at paras. 87-89.
Consequently, the ECtHR did not find a violation of Article 8 because the domestic court, the ECtHR determined, had appropriately balanced “the dignity and self-determination of the individual and the need to protect the individual and safeguard his or her interests.” See id. at para. 90. The ECtHR further elaborated that this balance was struck in particular because A.-M.V. was heard at and involved in the proceedings and his will was taken into account. Additionally, the interference, the Court determined, was proportional and narrowly tailored to the specific instance. See id. at paras. 90-92.
The ECtHR did not consider that an analysis of Article 2 of Protocol No. 4, the right to freedom of movement, would lead to a different conclusion and therefore held that there was no violation. See id. at para. 94.
Third Party Submission to the Court
The Mental Disability Advocacy Centre submitted observations to the ECtHR on behalf of A.-M.V. advocating for a “supported decision-making” approach, which respects the preferences of persons with disabilities, rather than the “best interests” decision-making approach. See id. at paras. 66-68. The Centre highlighted that the preferences of persons with disabilities were often “overridden or ignored” when others were allowed to make decisions allegedly in the person’s “best interests.” See id. at para. 66. The Centre argued that current international standards under the ICRPD prioritize the preferences of a person with a disability regarding decisions affecting that person. See id. at paras. 66-68.
Relevant International Instruments
There are several international instruments that protect the rights of persons with disabilities, including the UN Convention on the Rights of Persons with Disabilities (CRPD), which was adopted in December 2006 and entered into force in May 2008. The Committee on the Rights of Persons with Disabilities specifically requires States to “review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will and preferences.” Further, the Council of Europe has adopted Principles Concerning the Legal Protection of Incapable Adults.
In its holding, the ECtHR took these instruments into account, noting that Finland ratified the CRPD in 2016 and that it entered into force on June 10, 2016 at which point it was considered that there was no need or cause to amend the current relevant Finnish legislation to comply with the CRPD’s requirements. See id. at paras. 39, 74.
Additional Information
During the three-month period following this Chamber’s judgment, either party may request that the case be referred to the Grand Chamber of the Court pursuant to Articles 43 and 44 of the ECHR. If a party requests review of the judgment, a panel of judges will either refer the case to the Grand Chamber or refuse the referral, making this judgment final on that day.
For more information on the European Court of Human Rights, visit IJRC’s Online Resource Hub. For a summary of the European Court’s jurisprudence on persons with disabilities, see its factsheet.