Application No. 19579/92
by the B. family
against the United Kingdom
The European Commission of Human Rights sitting in private on
2 April 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M. NOWICKI
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 23 December 1991
by the B. family against the United Kingdom and registered on
4 March 1992 under file No. 19579/92;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
19 November 1992 and the letter in reply submitted by the
applicants on 26 January 1993;
Having deliberated;
Decides as follows:
THE FACTS
The first and second applicants, who are married, were born in
1943 and 1942 respectively. They have three children, W. (the third
applicant) born on 2 January 1978, E. (the fourth applicant) born on
19 January 1980 and S. (the fifth applicant) born on 5 October 1982.
They are all British citizens and resident in South Ronaldsay, Orkney.
The applicants are represented before the Commission by Mr. David
Lyons, a solicitor.
The facts as submitted by the parties may be summarised as
follows.
The first and second applicants went to live on South Ronaldsay
in the Orkney Islands in 1976.
Background to the case
Among the other families living on South Ronaldsay at all
material times was a family named W., which included 15 children. In
or about 1987 some of these children were discovered to have been
sexually abused by their father. In 1988 he was convicted of sexual
offences against the children and sentenced to 7 years' imprisonment.
Following the placement in care of the W. children by social
workers employed by Orkney Islands Council (the local authority having
statutory responsibility for the welfare of children), the children
were repeatedly questioned by a police officer and by officials of the
Royal Scottish Society for the Prevention of Cruelty to Children
(RSSPCC), a child protection agency employed by local authorities
dealing with inter alia the sexual abuse of children. The questioning
suffered from a number of serious shortcomings, which are discussed in
a report dated 27 September 1991 by V. P. Mellor, Consultant Clinical
Psychologist, Head of the Department of Clinical Psychology and
Director of the Jubilee Centre for Child Abuse at Booth Hall Children's
Hospital, Manchester. These included the use of leading questions,
telling one child what another had said, indoctrinating or influencing
the children, and questioning the children over-frequently and for
excessive periods of time.
After prolonged questioning, three of the abused W. children told
stories with certain common features. They involved besides the W.
family a number of other adults and children who lived on South
Ronaldsay. The stories depicted these persons as taking part in open-
air ceremonies at which the children had sexual connection with the
adults. The persons named by one or more of the children included
members of four families resident nearby and the local priest.
The adults involved in the questioning (i.e. the police officer
and the RSSPCC officials) and the social worker at Orkney Islands
Council to whom the results were reported (Sue Millar) appear never to
have doubted the reliability of those statements, or to have considered
that further evidence was necessary before any action was taken.
By 14 February 1991 a decision appears to have been taken by
Orkney Islands Council to remove the M., T., H. and B. children from
their homes. The placements were to be for a period of 3 months. The
sexes of some of the children were not known.
By 26 February 1991 it had been decided that, after removal from
their homes, the children should all be separated from each other.
This was to facilitate "disclosure" (i.e. confession that abuse had
occurred) and prevent "shut-down" (the converse of disclosure). The
theory of disclosure operates on the assumption that the child has been
abused and that it will be therapeutic for the child to admit this.
For the same reason, it was decided that all access to the children by
parents or siblings should be excluded and that the children should not
be allowed any of their personal belongings including toys. These were
considered to be "inhibitors", i.e. they would inhibit "disclosure".
The execution of the Place of Safety Orders
At about 9.30 a.m. on 26 February 1991 orders (known as "Place
of Safety Orders") were obtained by the Social Work Department from the
Sheriff at Kirkwall (the local judge) in respect of each of the nine
children. The families were not notified of the applications for the
orders and had no opportunity to make representations at the hearing
before the Sheriff. The orders were granted under Section 37 (2) of
the Social Work (Scotland) Act 1968. Each order was in identical
terms, and granted "authority to Orkney Islands Council with assistance
as necessary to take to detain at a place of safety the above mentioned
child".
At 7.00 p.m. on 27 February 1991, about 8 police officers and
social workers arrived at the house and told the second applicant that
they had a warrant to take the children away. The children were then
driven away. They were not allowed to take anything with them except
the clothes they were wearing.
As far as the second applicant can recall, no attempt was made
to explain to her or the children the nature and implications of a
Place of Safety Order, or the purpose, timescale or procedure involved
in the children's removal or the arrangements thereafter.
During the period that followed, the second applicant's letters
(and all others intended for the children) were given to the Social
Work Department for onward transmission. The letters were not in fact
delivered to the children. Other items, such as writing paper,
handkerchiefs, perfume, Easter eggs, the children's own mugs and teddy
bears, were also sent by the second applicant for the children. They
were also stopped by the RSSPCC.
The second applicant requested access to the children, but was
told by the Social Work Department that that was impossible.
Proceedings before the Children's Hearings and the Sheriff
By letter dated 4 March 1991 the Acting Reporter, Mr. Sloan,
wrote to each of the parents in respect of each of the nine children.
The letters were in almost identical terms and advised the parents that
Children's Hearings had been arranged for 5 March 1991 (the last day
legally permitted). Each hearing was scheduled to last 15 minutes
(except those in respect of the B. children, where 10 minutes was
allowed for each hearing).
On 5 March 1991, prior to the Children's Hearing of which the
parents had been notified, hearings were held in respect of P. and T.
H., at which decisions were taken identical to those already taken in
respect of the other children.
Shortly before the first hearing the families were given a form
relating to each child, accompanied by the grounds of referral and a
leaflet explaining the Children's Hearings system. The grounds of
referral stated that, inter alia, the children were exposed to moral
danger and had been exposed as a participant and/or observer to acts
of lewd, indecent or libidinous practices, including sexual
intercourse, which acts took place during the hours of darkness and
included the use of ritualistic music, dancing and dress.
At the hearing involving the applicants, the Chairman of the
Children's Hearing read out the grounds of referral. The second
applicant was asked whether she accepted the grounds of referral. She
stated that she did not. There was no discussion of the allegations
or of any evidence substantiating them. No report of any description
was produced or referred to.
The Hearing decided to dispense with the children's presence, to
issue warrants requiring the children to be detained for a further 21
days (the maximum period permissible: Section 37 (4) of the 1968 Act).
They further decided to direct Mr. Sloan to apply to the Sheriff for
a finding as to whether the grounds of referral were established, in
accordance with Section 42(2)(c) of the 1968 Act.
The parents were advised of their right of appeal under Section
49(1) of the 1968 Act, and an appeal hearing was arranged for the
following day.
On 5 March 1991, following the hearings, applications were made
by Mr. Sloan to the Sheriff in respect of each of the children, in
accordance with Section 42(2)(c) of the 1968 Act.
On 6 March 1991 the parents' appeals were heard by the Sheriff
Principal for the area. One of the points taken in the appeal was
that, by dispensing with the presence of the children, the Hearing had
deprived themselves of the benefit of the children's views on the
allegations, and on whether they wished to return home.
The Sheriff Principal held that the decision on 5 March to
dispense with the attendance of the children was a proper exercise of
discretion which should not be disturbed and that the hearing had
material on which they could properly come to a decision that the issue
of a warrant under Section 37(4) was necessary in the interests of the
children. He refused the appeal. He appointed junior counsel to act
as curators ad litem to the children.
On 13 March 1991 the decision to refuse all parties access to
their children was confirmed by the agencies involved.
Shortly before the Children's Hearings on 25 March 1991 the
parents were informed that medical examinations of the children had
been carried out which did not reveal any evidence that sexual abuse
had occurred.
At the hearings on 25 March 1991, the second applicant was
accompanied by the solicitor and by her counsel, who was stopped when
she submitted that the medical evidence did not support the allegations
of sexual abuse, and that the children should be returned. She was
ordered not to make such submissions.
At each hearing the Children's Hearing decided to renew the
warrant to detain the child in question for a further 21 days, being
the maximum legally permissible (Section 37(5) of the 1968 Act). A
cursory report as to the welfare of the children was referred to at the
Hearing, which neither the parents nor their legal advisers were
allowed to see.
On 3 April 1991 the hearing on evidence began before Sheriff
Kelbie with a consideration of procedural aspects of the case, i.e. the
failure to involve the children in the proceedings.
On 4 April 1991 he issued a judgment holding that the proceedings
were vitiated by the failure to involve the children as they were
entitled to be involved in terms of the 1968 Act (Sloan v B., 1991 SLT
530, 534). He accordingly dismissed the applications made under
Section 42, adding that, if he had known how the children were being
treated, he would have allowed their appeals on 29 March 1991.
The Sheriff went on to comment on the documentary productions,
including the tapes and transcripts of interviews with the children.
In relation to the allegations supposed to have been made by the three
W. children, on the basis of which the nine children had been detained,
and the "disclosure" made by some of those children, he said:
"I am conscious that I have not heard a proof in this case but
I think that in the interests of the children in this case I must
express a view on these matters. It may well be that what was
going on with the first three children [the W. children] was a
form of therapy. I am not competent to judge that. What I am
clear about is that it was no way to get at the truth objectively
and that the statements by the children could not be said to be
spontaneous. The answers clearly demonstrated they had been
subjected to or witnessed sexual abuse, but there was no doubting
that that had happened within their own family.
Of particular concern is the fact that the disclosures in
question were first made at interviews in February for which
there are no tapes or full transcripts. The statements of the
children are given without any indication of the questions which
elicited them. Standing the manner of questioning in the other
transcripts, however, there would be great difficulty in
assessing how reliable the statements are.
So far as the other children are concerned, two of them certainly
did say things which bore a marked similarity to certain things
said by the first three, but that was with the active
encouragement of those conducting the interviews who were clearly
determined to get a particular response. The manner of
interviewing them and the first three children amounted to
repeated coaching of a kind which could not only have made the
record of the interviews of doubtful value but may well have
tainted anything they said in court. In any event, the two
latter children said absolutely nothing to show that they had
experienced or seen any sexual abuse, ritual or otherwise. One
of them said categorically that it had never happened to her and
she had never seen it happen to anyone else and from what she
said it was clear that what she was describing was something she
had discussed with one of the first three children at an earlier
date.
Whatever the truth of the matter, putting what the first three
children have said at its highest, I am in no doubt that the
risks to the welfare of these nine children in returning them to
their parents are far outweighed by the certain damage being done
by their continued detention and the sooner they are returned to
their parents the better. And if the reporter is still minded
to take this matter further I hope he will give very serious
consideration in relation to each child separately, just what is
the nature and quality of the evidence he relies on and the
manner in which it was obtained, and perhaps also to the wealth
of contrary evidence before he does so."
In relation to the evidence, the Sheriff stated that he had
considered most of the documentary productions in the case and, in
particular, had read all the transcripts of interviews with the
children and listened to the tapes of the crucial interviews:
"I have also become aware that, on the basis of the warrants to
detain in a place of safety, the nine children subject to these
applications have been held without any contact with any of their
families or friends and, far from being kept in a place of
safety, have been repeatedly taken to another place altogether
to be subjected to what could only be described as cross
examinations designed to break them down and admit to being
abused. While, no doubt, children taken to a place of safety
could be visited there and asked to say what happened to them,
there is in my view no lawful authority for what took place here,
and I was very glad to hear counsel for the reporter say that
when she realised that that was happening she advised that it
should stop ... what preceded her intervention was, however, yet
another example of failure to regard the children as persons
possessed of rights."
Mr. Sloan appealed against Sheriff Kelbie's decision to the Court
of Session under Section 50 of the 1968 Act.
The children were returned to Orkney at about 7.00 pm on 4 April
1991. They had been in detention for 37 days.
The appeal to the Court of Session was heard on 3, 4, 5, 6, and
7 June 1991. On 12 June 1991 the Court issued its decision, sustaining
the appeal. The Court held that the Sheriff should not have dismissed
the application on procedural grounds, but should have heard evidence.
The case was remitted, to be heard by a different Sheriff.
The Court observed that Section 40 (2) which allows the presence
of the children to be dispensed with "is a provision which has obvious
importance in those cases of child abuse where a child has been
severely injured or is so disturbed or distressed by what had happened
or may for any reason be exposed to risk or harm if his attendance were
to be insisted on." Interpreting the words "without prejudice" in
Section 40 (2) as meaning effectively "without prejudice to the
interests of the child so far as Section 41 (2) is intended to protect
these interests", the Court held that the child's presence could
properly be dispensed with under Section 40 (2) in cases where its
attendance for the purposes of Section 41 (2) would be a "mere
formality" (Sloan v B., 1991 SLT 530).
By letter dated 24 June 1991 Mr. Sloan notified the parents of
the nine children that he was abandoning the applications made by him
under Section 42 of the 1968 Act, in accordance with Rule 7 of the
Social Work (Sheriff Court Procedure) Rules 1971.
By interlocutory decision dated 25 June 1991 the Sheriff
dismissed the applications in respect of each child.
Following a Case Conference on 15 July 1991 the children's names
were removed form the Child Protection Register.
Relevant domestic law and practice
Under Section 33 of the Social Work (Scotland) Act 1968 (the 1968
Act) as amended a "Children's Panel" is required to be set up for the
area of every local authority, including Orkney Islands Council. The
children's panel are appointed by the Secretary of State for Scotland,
on the basis of names and advice submitted to him by a Children's Panel
Advisory Committee formed by the local authority (1968 Act,
Schedule 3). There are no prescribed qualifications for panel
membership. Children's Hearings are a tribunal consisting of three
members of the children's panel (Section 34 (2) of the 1968 Act).
Children's Hearings have jurisdiction in relation to "children".
The expression is defined by Section 30 of the 1968 Act as meaning
children under 16, and certain children aged between 16 and 18.
Children's Hearings have jurisdiction over such children where
they "may be in need of compulsory measures of care" (Sections 32(1)
and 34(1) of the 1968 Act), i.e. where one or more of the conditions
mentioned in Section 32 (2) of the 1968 Act are satisfied. Those
conditions include that the child is exposed to moral danger, or has
been the victim of sexual or physical abuse, or is a member of the same
household as a child who has been the victim of sexual or physical
abuse, or is a member of the same household as a person who has
committed an offence of sexual or physical abuse against a child.
Appeal lies to the Sheriff in respect of any decisions made by
a Hearing.
COMPLAINTS
Article 3 of the Convention
The applicants submit that the treatment of the children and
their parents amounted to treatment which was both "inhuman" and
"degrading" within the meaning of Article 3. The applicants refer in
this context especially to the holding of each child in total isolation
from family and friends, and to his or her subjection to repeated and
lengthy interrogation which, however well-intentioned, was of such a
character as to be "quite abusive to the children concerned" (Mellor
Report) and "designed to break them down" (Sloan v B. above). It is,
the applicants submit, difficult to conceive of more inhuman behaviour
towards children, in a democratic society, than was suffered by the
children in the present case.
Article 5 of the Convention
The applicants submit that in the present case the children were
deprived of their liberty; they were detained against their will.
The procedure by means of which the children were deprived of
their liberty was laid down by domestic law. That domestic law was
not, it is submitted, in conformity with the Convention, in that it did
not respect the rights of the children under Articles 6 or 8.
Accordingly, it is submitted that the deprivation of liberty was not
in conformity with Article 5 of the Convention.
It is further submitted that the children's rights under
Article 5 para. 4 were also violated. Neither they, nor their parents
on their behalf, had any effective opportunity to take proceedings by
which the lawfulness of their detention (in anything more than a formal
sense) could be speedily determined.
Article 6 of the Convention
The applicants submit that Article 6 is applicable to the
children's hearing and the proceedings before the Sheriff and to the
Case Conferences.
The rights of the parents under Article 6 para. 1 were, it is
submitted, infringed inter alia by the fact that they did not have
equal access to the relevant documents and other information, including
the transcripts of the children's interviews and medical examinations.
Also no opportunity was allowed, until the stage of the hearing on
evidence before the Sheriff for the refutation of the allegations.
That hearing occurred after the children had been in detention for more
than 5 weeks. That was not a "reasonable time" in the context of young
children being detained and refused all contact with their families.
The rights of the children under Article 6 para. 1 were, it is
submitted, violated in addition in the following respects:
(1) They were not notified of the hearings.
(2) They were not given any opportunity to be present or to be
represented at the hearings prior to the hearing on evidence
before the Sheriff.
(3) They were prevented from having access to a lawyer.
Article 8 of the Convention
The applicants submit that the actings of the various public
agencies involved in the present case constituted interferences with
their right to respect for their private and family life, their home
and their correspondence.
It is submitted that the rights of the parents and the children
under Article 8 were infringed in the present case in the following
respects:
(1) There was no adequate evidence to justify the removal of the
children from their homes.
(2) The taking of the children from their beds, and the invasion of
the home at that hour, was in any event not proportionate to the
aim pursued.
(3) Neither the parents nor the children were at any stage involved
in the decision-making process to a degree which, having regard
to the serious nature of the decisions to be taken, was
sufficient to provide them with the requisite protection of their
interests.
(4) The prevention of all contact by the parents with the children
was not proportionate to the aims pursued. Supervised access
could have been considered. Telephone calls or tape-recorded
messages could have been permitted.
(5) The prevention of all contact between the children was not
proportionate to the aim pursued.
(6) The prevention of all contact by the children with siblings,
family, friends and others was not proportionate to the aim
pursued.
(7) The refusal of all information as to the whereabouts of the
children and the medical treatment and other treatment given to
them was not proportionate to the aim pursued.
(8) The compulsory medical examinations constituted an interference
with the right to respect for private life and also with the
right to respect for family life.
(9) The prohibition of all correspondence, even that from the
children to the parents, was plainly not proportionate to the aim
pursued.
(10) The use of the surveillance devices during questioning infringed
the children's right to privacy.
(11) The refusal to allow the children to have personal possessions
was not proportionate to the aim pursued.
(12) The subjection of the children to frequent and lengthy
interrogation was not proportionate to the aim pursued.
(13) None of the actings complained of was in accordance with the law.
Article 13 of the Convention
In the circumstances of the present case, the applicants submit
that it may be unnecessary to examine Article 13, depending on the
decision taken in relation to Article 6.
In the event, however, that it is necessary to examine Article
13, it is submitted that the facts which constitute violations of
Article 6 in addition constitute violations of Article 13.
Article 2 of Protocol No. 1 to the Convention
The rights of the parents and children under Article 2 of the
First Protocol were, it is submitted, infringed. The children were
deprived of education throughout the entire period of their detention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 December 1991 and
registered on 4 March 1992.
On 22 May 1992, the Commission decided to communicate the
application to the respondent Government and to ask for written
observations on the admissibility and merits of the application.
The Government's observations were submitted on 19 November 1992
after two extensions in the time-limit.
On 11 December 1992, the Commission decided to grant legal aid
to the applicants.
By letter dated 26 January 1993, the applicants informed the
Commission's Secretariat that following counsel's advice they intended
to commence proceedings in the Scottish courts and therefore withdrew
the present application.
REASONS FOR THE DECISION
In light of the applicants' expressed intention to withdraw, the
Commission finds that they no longer intend to pursue their
application. The Commission further considers that respect for Human
Rights as defined in the Convention does not require it to continue the
examination of the application.
It follows that the application may be struck off the list of
cases pursuant to Article 30 para. 1 (a) of the Convention.
For these reasons, the Commission unanimously
DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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