AS TO THE ADMISSIBILITY
Application No. 12451/86
by Winifred ADAMSON
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 July 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 June 1986
by Winifred ADAMSON against the United Kingdom and registered
on 23 September 1986 under file No. 12451/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts as they have been submitted on behalf of the
applicant by her husband, acting as her representative, may be
summarised as follows:
The applicant is a British citizen, born in 1913 and living in
Cambridge. The applicant is a great grandmother and has three great
grandchildren, A, a girl, born on 6 October 1978, B, a boy, born on
19 November 1982 and C, a boy born on 21 October 1985. The father
of the children, the applicant's grandson, married the mother on
25 February 1978. They were aged 19 and 17 respectively at the time
of the marriage.
Both the mother and father came from a background which caused
them both some stress. The father was in the Navy at the time of the
marriage. During the mother's first pregnancy she suffered from two
epileptic fits, and after the birth of A she suffered a further attack
of epilepsy.
The mother and father had certain difficulties with their
parents, and for a period of time after the birth of A they lived with
the applicant.
Within three months of the birth of A, the mother became
pregnant again, and accepted advice to have the pregnancy terminated
and had an abortion. For a period of fifteen months after the birth
of A, the mother suffered post-natal depression. The father, having
left the Navy, became unemployed. In January 1979 the Social Services
Department's attention was drawn to the family following a report that
A had been left unattended. The Social Services Department, after
making various enquiries, concluded that A was being adequately looked
after.
When the father eventually found work the mother became more
depressed, and on occasions when A wanted feeding, she would not feed
her. A did not, however, suffer from malnutrition as a result of
this. In January 1980 the mother and father were offered a council
flat, the state of which increased the mother's depression. She asked
the Social Services to take A into care for two days to allow her the
opportunity to clear up the flat, but was informed that it would not
be a good idea for the child to be taken temporarily into care.
On 23 January A had a bad crying patch which kept the mother
up late that night. The mother became frustrated and picked A up and
threw her into a chair which she bounced out of, and as a result
received a head injury. A was taken to the hospital and kept there as
the head-injury was thought to be serious.
On 28 February 1980, under Section 1 of the Children and Young
Person's Act 1969 which provides for care orders in cases of
impairment of development of health or of ill-treatment, interim care
and control of A was granted by a Juvenile Court to the County
Council, who administered the care and control of A through their
Social Services Department. They placed A with foster parents, the
foster mother being a trained nurse. Access was permitted to the
mother and father from March 1980 for one hour every month.
On 12 May 1980 the mother pleaded guilty to causing A grievous
bodily harm and was put on probation. The court took the view that
this was not the classic baby battering syndrome, but was a sudden and
tragic incident.
The mother and father attempted to have the care order
revoked. Their application to the Juvenile Court was unsuccessful and
in February 1982 they appealed to the Crown Court. The Crown Court
discharged the Care Order and returned A to the mother and father. A
Supervision Order was made in favour of the County Council. The
foster parents issued wardship proceedings, supported in this by the
County Council, contending that it was not in A's best interest to
return to her mother and father because of the trauma of the return,
taking into account also that A had been left with some residual brain
damage. The result of this hearing was that care and control was
granted by the judge to the County Council, and access for the mother
and father was given, amounting to five and a half hours per
fortnight.
On 19 November 1982 a second child, B, was born to the mother
and father.
During the course of 1982 the foster parents applied to the
High Court in the wardship proceedings, seeking care and control of A,
with the County Council having supervision, and with no access being
granted to the mother and father. The mother and father sought to
have the child returned to them with the County Council supervising.
The wardship hearing took place in Janury 1983. The judge
took into account a considerable amount of professional evidence
before pronouncing the judgment. The judge accepted evidence that A
needed a strong, warm, relaxed environment in which to live and that
it would be traumatic for her to be moved, this trauma perhaps
exacerbated by the injury she had suffered. The judge found the
foster parents to be very responsible and caring people. With regard
to the mother and father, the judge stated "when (A) had to leave
them, their marriage was at a stage where they were having rows, their
accommodation was bad and they were surrounded by debts and it is a
matter of admiration that these two very young and immature people
have managed to put their home into a clean and attractive state and
keep going together with very little help from relatives. One can
understand that they feel that they are well equipped to have (A) back
with them."
The judge, however, considered that the professional
witnesses' evidence was all one way and that A should remain with the
foster parents, and correspondingly awarded them care and control of A
with a supervision order granted to the County Council. Access to
the mother and father was granted once every six weeks for a period of
six hours.
The mother and father were advised by counsel not to appeal
against this decision as their chance of obtaining care and control
were minimal. There was, however, an attendant danger that any appeal
would be met with a cross-appeal on the question of access, and in
this, counsel considered that there was a danger that the access
arrangements might be reduced.
The applicant, who had previously had contact with A, wrote to
the County Council, requesting access to her great granddaughter.
This request was turned down on 10 September 1980 on the basis that A
had not reacted well to previous visits by relatives. The County
Council informed the applicant that access for the parents was to be
limited and that no other relatives were to be permitted to have
access.
Following the court hearing in January 1982 in which care and
control of A was vested in the foster parents, the applicant wrote to
the foster parents, requesting access to A. The foster parents
replied that it was not in A's best interests to have any additional
access visits, but that the applicant could see A during any normal
access granted to the mother and father. The foster parents, however,
agreed to allow an extra half hour for one access period a year so
that the applicant could see A without imposing on the mother and
father's time with the child.
The applicant wrote to the County Council, a member of
Parliament, the Prime Minister, seeking some avenue for obtaining
access to A, all of which proved futile. The applicant instructed
solicitors who attempted to obtain legal aid on her behalf. The Law
Society, the administrators of the legal aid system, advised the
applicant's solicitors to invite the applicant to withdraw the
application for legal aid in the light of counsel's earlier advice
given to the parents that further proceedings were likely to adversely
affect access, rather than allow further access.
In January 1984 the applicant was informed by the mother and
father's social worker that she could join them on the next access
visit, but that she should not join them on any of their later visits
as it was important for the father and mother to have as much time as
possible with A. The social worker concerned also advised the
applicant that she should go to court to seek separate access.
The applicant approached the Magistrate's court concerning
wardship proceedings and was advised by the Magistrate's Court in a
letter dated 5 June 1984 to seek legal advice and, if possible, legal
aid. The applicant continued to seek further access and joined the
mother and father on one access visit prior to September 1984. In
all, the applicant has seen A on four occasions since the child was
taken into care.
Following an accident in August 1985 when the mother and
fathers' second child B fell down some stairs, the County Council
issued wardship proceedings and B was taken into care. The applicant
states that access to A was suspended after this incident. The
applicant wrote to the County Council seeking access to A and B but
her request was refused. She was informed she would only be able to
obtain access through the courts.
On 21 October 1985 a third child, C, was born to the mother
and father, and was made a ward of court by them as the County Council
were threatening to do the same. A hearing was scheduled for December
1985 but was postponed until January 1986 due to the number of people
listed to give evidence. The January 1986 hearing was adjourned to
allow for further reports to be made and in the intervening period up
until the hearing scheduled for July 1986 B remained with short-term
foster parents and C was allowed to remain with his mother and father.
At the hearing in July 1986, the judge ordered that A be
released for adoption proceedings, B to remain in long-term foster
care and C to be placed with foster parents.
The mother and father applied for a variation of the judges
order but this was turned down on 22 August 1986 on the grounds that
it was effectively an appeal against the judges order. The mother and
father then obtained legal advice to appeal out of time. The appeal
was, however, dismissed on 19 February 1987.
On 14 April 1987, the County Council took out a summons
returnable on 24 April 1987 seeking leave to commence proceedings for
orders that B and C be freed for adoption and that access by the
applicants be terminated on the making of such an order and that leave
be given to place C with long-term foster parents.
COMPLAINTS
The applicant complains that she has been unable to obtain
access to her great grandchildren and that she has been refused access
to them by the County Council.
The applicant further complains that she has not had access to
the courts as she has been unable to obtain legal aid and has been
legally advised of the futility of any application to obtain access to
her great grandchildren. She claims that she has been denied a fair
and public hearing.
THE LAW
1. The applicant complains first that she has been unable to
obtain access to her great grandchildren.
Article 8 (Art. 8) of the Convention provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as in accordance
with the law and is necessary in a domestic society in the
interests of national security, public safety or the
economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others."
The Commission has previously held that, apart from any blood
relationship, certain links must exist between persons before their
relationship can be said to constitute "family life" within the meaning of
Article 8 (Art. 8) of the Convention (cf. No. 5269/71, Dec. 8.2.72, Collection
39 p. 104 and No. 7229/75, Dec. 15.12.77, D.R. 12 p. 32).
In this connection the Commission notes the very limited
contact that the applicant appears to have had with her great
grandchildren. Whilst there was a degree of contact between the child
A and the applicant immediately after A's birth, with regard to B and
C the applicant has not shown what contact she has had with them.
The Commission does not, however, consider it necessary to
resolve the question of whether "family life" exists since it is clear
that even if the applicant could show that the relationship between
herself and the three children fell within the meaning of "family
life" the decisions which have been taken are justified under
paragraph 2 of Article 8 (Art. 8-2) of the Convention.
In this respect the Commission notes that all three children
were made wards of court and as such it was open to the applicant to
apply to the High Court for access to the children. In determining
the question of access the High Court must take as its paramount
consideration the welfare of the child. From the information
submitted by the applicant it appears that the High Court considered
the children's welfare in the wardship proceedings and decided that
the three children's best interests are furthered by the orders made
limiting the natural family's contact with the children. Wardship
would provide a means to examine the lawfulness of these decisions and
whether they are arbitrary and determine also whether access should be
granted to the applicant.
The Commission, noting the findings of the High Court, is
satisfied that any interference with the right to respect for family
life, which the limitations placed on the natural family's right of
access may constitute, is justified as being in accordance with the
law and necessary in a democratic society in the interests of the
children's health. It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains that she has not had access to
the courts. She states she has been legally advised as to the
futility of any application to obtain access to her great
grandchildren and she claims that she has been denied a fair and
public hearing.
Article 6 para. 1 (Art. 6-1) of the Convention provides, as far as
material:
"1. In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law."
The Commission observes that Article 6 para. 1 (Art. 6-1) is only
applicable in proceedings on the determination of "civil rights and
obligations", however the Commission need not decide whether or not
"civil rights and obligations" within the meaning of Article 6 para. 1
(Art. 6-1) are at issue in the present case in view of the opportunity of
access to court which is in fact open to the applicant, insofar as
required by this provision.
The Commission first notes that all three children were made
wards of court and as such it was open to the applicant to seek access
to the children in the wardship proceedings. It appears that with
regard to A the applicant took legal advice, but in the light of
Counsel's opinion given to the parents following the wardship hearing
in January 1983, she was advised against making any application. The
Commission considers that the applicant has not shown that she was
thereby excluded from access to a court contrary to Article 6 para. 1
(Art. 6-1) of the Convention as she could have applied for access to
the children through the jurisdiction of the High Court in wardship
proceedings.
The Commission next notes that the applicant also complains of
her non-eligibility for legal aid. The Commission observes that no
right to free legal aid in civil proceedings is, as such, included
among the rights and freedoms guaranteed by the Convention, although
denial of legal aid could in certain circumstances amount to a failure
to ensure a fair hearing under Article 6 para. 1 (Art. 6-1) of the Convention
(Eur. Court H.R., Airey judgment of 9 October 1979, Series A no. 32
para. 26). Furthermore, the Commission has also held that the
operation of financial qualifications for legal aid, and a restriction
on its availability to cases with objective, fair, prospects of
success is a reasonable application of limited public funds for the
purpose of ensuring a fair hearing (cf. No. 8158/78, Dec. 10.7.80,
D.R. 21 p. 95). There is no indication that the applicant was refused
legal aid on any other ground.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President to the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)