AS TO THE ADMISSIBILITY OF
Application No. 12399/86
by Kenneth and Eileen BRANTON
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 March 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
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 24 July 1986
by Kenneth and Eileen BRANTON against the United Kingdom and registered
on 29 August 1986 under file No. 12399/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
- the Commission's decision of 4 December 1986 to bring
the application to the notice of the respondent Government
and invite them to submit written observations on its
admissibilty and merits;
- the observations submitted by the respondent Government on
9 April 1987;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a British citizen born in 1930 and
resident in Skegness. The second applicant, his wife, was born in
1940, and is also a British citizen and resident in Skegness. They
are represented by Gilbert Blades, Solicitors of Lincoln. The facts
as agreed by the parties may be summarised as follows.
The applicants' daughter, D., gave birth to a child T., on
24 December 1984. The child was made subject to a place of safety
order on 27 December 1984, and a full care order was made by the
Mansfield Juvenile Court on 4 June 1985 in favour of Nottinghamshire
County Council ("the local authority"). The local authority now
propose to place the child for adoption. D.'s elder child, K., had
been taken into care in July 1984.
The care proceedings in respect of T. were taken under Section
1 of the Children and Young Persons's Act 1969, whereby the Court was
satisfied that it was "probable that proper development
will be avoidably prevented or neglected or her health will be
avoidably impaired or neglected or she will be ill-treated having
regard to the fact that the Court has found that that condition is
satisfied in the case of another child or young person who is, or who
was, a member of the household to which belongs, and that
she is in need of care and control which she is unlikely to receive
unless an order under the said section is made in respect of her".
The Juvenile Court had before it the confidential report of
the guardian ad litem. This report recorded that D., who was born in
1964, is of limited intelligence, and was herself in care following
offences of theft committed in 1978, when she became pregnant with her
first child, K. The applicants were not prepared to assist their
daughter at that time, and when she left a mother and baby home, where
she had been living after the birth of K., professional social workers
and others who had observed her were concerned about her abilities to
care for K. During May 1984 the Social Services Department and the
Health Department of the local authority were concerned about a number
of allegations of injury and neglect to K. A variety of allegations
of injury and neglect were investigated by the Social Services
Department and the Health Department but could not be substantiated.
K. was admitted to hospital on 4 July 1984, with a bruise to the
head. Subsequently, on 13 July 1984, the child was again admitted to
hospital and detained for observation. He appeared to be
undernourished, had feeding and digestive difficulties, and a red mark
on the back of his head. The child was also vomiting, but his mother
seemed unable to appreciate that K. should be seen by a doctor.
Following a case conference in July 1984, a place of safety order was
taken in respect of K. A full care order was granted by the Mansfield
Juvenile Court on 16 October 1984 in favour of the local authority.
After the birth of T., on 24 December 1984, the putative
father has made no effort to see his daughter, and he makes no
contribution financially either to the child or her mother.
In view of the local authority's experiences with D. and her
first child, K., and their concern for the second child, T., a place
of safety order was obtained on 27 December 1984, at which time T.
remained in hospital. The hospital staff considered that D. handled
and fed her baby in an acceptable way, although she was only
interested in doing this when she felt like it. However, she
attempted to remove the child from hospital, against medical advice,
and this incident prompted the seeking of the place of safety order.
D. was very upset at not being able to take the child home with her,
when she herself was discharged from hospital, but her visits to the
baby in hospital were infrequent and arose only when she was brought
by other people. She did not take up the offer of an overnight stay
at the hospital to enable her to spend more time with T. The child
was placed directly with foster parents on 18 February 1985,
immediately on her discharge from hospital.
On 15 January 1985 following a case conference, the local
authority agreed that D. should have access three times a week to T.
On 18 February 1985, the duration of the visits was extended to two
hours and on that day the second applicant was present during the
visit. It was agreed that the second applicant should accompany D.
on one of these visits each week. On 3 June 1985, during such a visit,
the second applicant repeated a request that she had made in a letter
dated 17 May 1985 to the local authority that she would like to have
T. placed with her and her husband if T. was not returned to D.'s
care. She was advised to see her solicitor and told that the local
authority would not support her application because of the likelihood
that the family situation would soon break down.
The report of the guardian ad litem appointed to protect J's
interests in the Juvenile court proceedings dated 22 May 1985 records
the second applicant's concern for D., which included plans to move
herself and her family from Skegness to live closer to her daughter,
and to be able to help her daughter directly with the care of both her
children, if returned to her, for the foreseeable future. It
transpired, however, that these plans were not entirely practical,
since the second applicant stated that she would be reluctant to move
from their home in Skegness, and that both applicants have a school
age child, whose education in Skegness it would be undesirable to
interrupt. D. declined to move to live with her parents. The
guardian ad litem concluded that D. "does show some concern for her
children, but, in my view, has no realistic idea of what is required
of her ... I have to conclude, that does not have the ability to
care for her child,
physical/emotional and psychological development".
A full care order in respect of T. was made on 4 June 1985 in
favour of the local authority and from 13 July 1985 T. was placed with
prospective adopters, who were also looking after her brother K.
On 4 February 1986 the applicants applied to the High Court to
make T. a ward of court with a view to applying for custody. D. and
the putative father indicated that they did not oppose the application.
The applicants were advised by counsel on the merits of seeking to
continue the wardship proceedings on 17 February 1986. Counsel's
advice was that there was no jurisdiction to pursue the wardship
proceedings. The application was dismissed by the High Court on
25 February 1986, the Court being bound by previous decisions that it
lacked jurisdiction to review the local authority's decision to place
a child in care for adoption.
On 18 April 1986, the local authority informed the applicants
that they intended to pursue adoption plans for both children and
invited the applicants to discuss their views with them.
The applicants replied on 22 April 1986 saying "we think it is
our duty to look after
after her as good as her adoptive parents ... at the moment I
having treatment at the hospital for thrombosis so I cannot get down
to see you at all I am very sorry ... (D. and the putative father)
would like us to have
authority wrote to the second applicant indicating that the social
worker would like to see the applicants in view of their interest in
their grandchildren to discuss the adoption plans. The applicants'
response, received on 28 August 1986 in a letter signed by the first
applicant, indicated that it was only T. and not her brother that they
were interested in. Moreover, the letter did not state that the
applicants wanted to look after T. but rather that they wanted D. to
have her children, and that they were D.'s responsibility not the
applicants'. The letter asked for help for D. to get her children
back. The letter also stated that the applicants did not think it
would do any good for them to come to see the social worker or for her
to travel to see them.
On 15 October 1986, the local authority replied to the letter
from the applicants indicating that the social worker would still like
to see them about their grandchildren and get their views on the
children being adopted. An appointment was made, and the applicants
were asked to confirm whether it was convenient. The applicants'
reply, received on 21 October 1986, stated that they were not
available on the date in question and indicated that their solicitor
had sent their case to the European Commission of Human Rights "to get
where they are discussing D.'s case to have T. back sorry we will
leave it at that".
On 4 November 1986 the applicants' solicitor requested the
local authority's response to the fact that an application had been
lodged in Strasbourg. On 25 November 1986 the local authority replied
stating that since 4 June 1985 the applicants had made no contact with
the Social Services Department regarding T.'s welfare and had made no
request for access to her.
The local authority's letter of 25 November 1986 also
indicated that the Council had established procedures by which
relatives with children in care might pursue the issue of access, the
first step of which was necessarily that an approach should be made to
the social workers responsible for the case to discuss the issues.
With regard to the issue of adoption it was confirmed that both
grandchldren had been placed with a view to adoption in July 1985 and
had therefore been settled together with their prospective adopters in
excess of one year. Details were given of the solicitors acting for
the adopters to enable the applicants to invite the adoption court to
join them as parties under Rule 15(3) of the Adoption Rules 1984. The
adoption application was lodged on 22 December 1986. The local
authority's letter of 25 November 1986 also asked why the applicants
differentiated between T. and her brother K., who are both D.'s
children, in view of the fact that the local authority have treated
the children as brother and sister since care orders were made over
them by placing them together in a prospective adoptive home. The
effect of the applicants pursuing their application in respect of T.
would be that the children would be separated.
The local authority were given notice by the magistrates'
court in a letter dated 13 February 1987 that D. intended to apply to
the court for a discharge of the care orders in respect of T. and her
brother. No such application has been served on the local authority.
COMPLAINTS
The applicants have stated that they have had no contact with
T. since her birth. They allege that their requests to the local
authority to see the child have been refused. They state that they
feel it is their duty as grandparents to give the child their love and
attention and to make her happy, and to see that she has a good
upbringing and a good education.
The applicants complain that their family life has been
interfered with by the decisions of the local authority to take T.
into care, and to refuse the applicants access to her. They also have
no opportunity to apply to the Court for custody or to take part in
the care proceedings concerning T., or to apply to discharge the care
order.
They complain that they have no remedy against these
interferences, and invoke Articles 6, 8 and 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 July 1986 and registered
on 29 August 1986.
On 4 December 1986, the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit observations on its admissibility and merits pursuant
to Rule 42(2)b (Art. 42-2-b) of the Rules of Procedure.
The respondent Government's observations were submitted on
9 April 1984 and, after one extension of the time-limit, the
applicants' solicitors informed the Commission by letter dated
11 August 1987 that the applicants did not wish to make any further
observations.
SUBMISSIONS OF THE PARTIES
A. The respondent Government
1. The facts
The respondent Government do not accept the applicants'
contention that they have not had access to T. The second applicant
was able to visit T. in the company of D. during access visits to T.
in her foster home. It also appears that the applicants made no
request to the local authority concerning access or visits. The
applicants were informed of the procedures whereby relatives of
children in care might pursue the issue of access, but failed to
approach the local authority to discuss the matter. Furthermore it
appears from the correspondence received from the applicants that they
are in fact trying to get T. back for their daughter and not to gain
care and control or legal custody of T. themselves.
2. Admissibility and merits
Article 8
The Government do not accept that there was a refusal by the
local authority to allow the applicants access to their grandchild.
There is no indication that the first applicant sought access to T.
The second applicant did in fact have access from T.'s birth until she
was placed for adoption in July 1985. Thereafter, neither applicant
requested the local authority to grant access. The Government
therefore submit that the facts of the case do not disclose any
appearance of a violation of Article 8.
If, contrary to the above submission, it were to be shown that
the local authority had refused to allow the applicants access to
their grandchild, the Government would wish to have the opportunity to
submit further written observations on the admissibility and merits of
the application. It would be necessary to consider whether any such
refusal was an interference with the applicants' right to respect for
their family life. This would raise the question whether it can be
said that there is "family life" as between the applicants and their
grandchild in the circumstances of the present case; and, if such
family life is considered to have come into existence, whether the
refusal of access was an interference. The Government would submit
that both questions should be answered in the negative.
Article 13
The Government submit that the facts of the case disclose no
appearance of a violation of Article 8 of the Convention and that
accordingly no issue arises under Article 13 of the Convention.
Article 6
As explained above, the Government do not accept that the
applicants were refused access to their grandchild. If, contrary to
their submissions, it were to be shown that there had been a refusal
of access, the Government would wish to submit further observations on
the admissibility and merits of the application. The Government would
not accept that the applicants' "civil rights" were involved, and they
therefore consider that Article 6 para. 1 is not applicable to the
present case.
Without accepting that either Article 6 para. 1 or Article 8
is applicable in the circumstances of the present case, the Government
would also point out that the applicants could have applied to
participate in the care proceedings on 4 June 1985 (at which the
second applicant was in fact present) and could apply to participate
in any discharge proceedings which may be started following the
notification by the Mansfield Juvenile Court to the local authority on
13 February 1987. In any such case it would be open to the applicants
to ask the Court to hear representations or to be called as witnesses
in conjunction with D. There is no indication that this course of
action has been considered. No request has been received since June
1985 for access to T., and accordingly the local authority's
administrative procedures which are available for considering such
applications have not been brought into play and the possible court
remedies which would be available of wardship and judicial review have
not therefore become available to test any administrative decision
which the authority might have made following such a request for
access.
B. The applicants
By letter dated 11 August 1987, the applicants' solicitors
stated that the applicants did not wish to make any further
observations.
THE LAW
1. The applicants complain that their family life has been
interfered with by the decisions of the local authority to take T.
into care and to refuse the applicants access to her.
Article 8 (Art. 8) of the Convention provides:
"1. Everyone has the right to respect for his private
and family life....
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
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."
Insofar as the applicants complain of a refusal of access to
T., the Commission notes that in fact the second applicant was able
to visit T. on visits made by D. to the foster home and that, on
18 February 1985, it was agreed that the second applicant should
accompany D. on one of the three weekly access visits. It also
appears that the local authority received no complaint from the
applicants concerning access during this period, nor did they receive
any request for access to T. from the applicants when, from 13 July
1985, T. was placed with prospective adopters. The Commission
accordingly finds that the applicants have failed to substantiate
their complaint concerning refusal of access.
Insofar as the applicants complain of the care proceedings,
and subsequent adoption plans interfering with their rights under
Article 8 (Art. 8) of the Convention, the Commission recalls that,
while the applicants applied for custody in wardship proceedings and
the second applicant did make a request to the local authority on two
occasions that she would like to have T. placed with her, it appears
from subsequent communications between the applicants and the local
authority that the applicants sought for T. to return to D. and did
not wish to assume any responsibility for T.
The Commission also notes that, in becoming aware of the
applicants' opposition to their plans, the local authority invited the
applicants to meet with the social services to discuss their views by
letters dated 18 April 1986, 22 August 1986 and 15 October 1986. The
applicants however did not accept these invitations. The Commission
further recalls that the applicants made no request to the local
authorities for access to T.
In light of these facts, the Commission finds no evidence of
any interference with or lack of respect for any of the applicants'
rights to family life on the part of the local authority, and
accordingly finds no appearance of a violation of Article 8 (Art. 8)
of the Convention.
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 applicants also complain that they had had no opportunity
to apply to the courts for custody or to take part in the care
proceedings and invoke Article 6 (Art. 6) of the Convention.
Article 6 (Art. 6) of the Convention provides that:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established
by law. ..."
The case-law of the Commission and Court has established that
Article 6 para. 1 (Art. 6-1) of the Convention guarantees to everyone
an effective right of access to the courts for the determination of
his civil rights and obligations.
It appears however from the facts of the present case that the
applicants' concern in the proceedings relating to T. was that T.
should return to the care of their daughter D. The Commission recalls
the letter from the applicants received by the local authority on
28 August 1986 which stated that they wanted D to have her children
back and the children were the responsibility of D. and not
themselves. The Commission further records the applicants' letter
received by the local authority on 21 October 1986 in which they
informed the local authority that they have applied to the Commission
"to get [T] so [D] can have her ...".
Accordingly the applicants are not in effect seeking the
determination of any rights which they claim to enjoy in respect of T.
but are concerned that T. should return to their daughter. In these
circumstances, and even assuming that the applicants can be said to
enjoy any civil rights in relation to T. within the meaning of Article
6 (Art. 6) of the Convention, the Commission finds they have not
substantiated that they are complaining of any violation of their
rights under Article 6 (Art. 6) of the Convention.
It follows that this part of the application is incompatible
ratione personae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants also complain that they have no effective
remedy for their complaints contrary to Article 13 (Art. 13) of the
Convention which provides:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
The case-law of the Commission establishes that for Article 13
(Art. 13) to apply, an applicant's claim that a provision of the
Convention has been breached must be an arguable one. In the case of
Rice and Boyle v. the United Kingdom (Application Nos. 9658/82 and
9659/82, Comm. Report of 7.5.86) the Commission held that for a claim
to be arguable it should concern a right or freedom guaranteed by the
law, should not be wholly unsubstantiated on the facts and should give
rise to a prima facie issue under the Convention.
Having examined the facts as submitted by the parties, the
Commission finds that these complaints fail to raise a prima facie
issue under the Convention and therefore fail to constitute an
arguable claim within the meaning of Article 13 (Art. 13) of the
Convention.
It follows that this complaint must be dismissed as 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 of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)