AS TO THE ADMISSIBILITY OF
Application No. 13641/88
by Valerie BRYCELAND
against the United Kingdom
The European Commission of Human Rights sitting in private on
8 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 2 February 1988
by Valerie BRYCELAND against the United Kingdom and registered on
15 February 1988 under file No. 13614/88;
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 applicant is a British citizen born in 1959 and resident
in London. She is represented by P. William Ackroyd, a solicitor
practising in London.
The facts as submitted by the applicant may be summarised as
follows.
The applicant is the mother of four children. Her first
daughter L. was born on 29 December 1975 during the applicant's first
marriage. After the applicant's divorce in 1977-78, the applicant
lived for two years with the father of her second daughter K., who was
born on 7 December 1978. On 1 July 1980, the applicant married again
and gave birth to her son M. on 10 September 1980. The applicant has
been recently divorced. From 1981, the applicant lived with D. L. who
was father to her fourth child, a son C., born on 20 September 1983.
When D. L. first began living with the applicant, the
applicant's children were put on an "at risk" register by the London
Borough of Croydon, as a result of his previous conviction for assault
on a child and the local authority apparently threatened to remove the
children, though no such action was taken. The applicant moved to
Southwark with D. L. and, while pregnant with C., began taking heroin,
with the result that she became addicted.
In July 1984, D. L. hit the applicant's son M. and the
applicant took her children to live with her mother and sought help
from Southwark Social Services. Shortly afterwards, all four children
went into voluntary care and the Social Services arranged for the
applicant to spend two months in the drug unit at Bethlehem hospital.
However, two months did not prove long enough and the children
continued to live with foster-parents, Mr. and Mrs. N., whom the
applicant had known in 1980 as neighbours.
In or about January 1985, the applicant moved back to Croydon
and the two boys M. and C. came back to live with her, the girls
remaining in voluntary care as it was felt that the applicant should
not try to resume care of all four children at once. The two girls L.
and K. however came to stay at weekends and returned home completely
at Easter 1985.
The applicant had registered as a drug addict in January 1985
at a drug clinic to continue to receive help to end her addiction. In
July 1985, Croydon Social Services discovered the fact that she was a
registered addict and instituted care proceedings, having removed the
children under a Place of Safety Order. In or about October 1985,
they obtained a care order in respect of the children, the Court
finding that the children were in moral danger and in need of care and
protection.
The children returned to Mr. and Mrs. N. and the applicant
visited them weekly, while continuing her treatment at the drug clinic
where they were reducing her prescription in the hope of ending her
addiction. The applicant's social worker apparently refused to find
the applicant a place in hospital, since he felt she was not committed
to giving up drugs.
In February 1986, the applicant was admitted to a "detox"
centre for heroin addicts. After a 3 week stay, the applicant, who
had developed a drug-related psychosis, was transferred to Bethlehem
Psychiatric Unit. In July 1986, the applicant was given a place at
Oak Lodge and remained there until July 1987, when she moved into her
present home. Since her admission to the "detox" centre, the
applicant has not taken heroin and suffered only one lapse when she
took a dose of heroin substitute. The applicant had the intention of
resuming care of her children when she had re-established herself and
maintained contact with Mr. and Mrs. N. for this purpose.
Meanwhile, following a case-conference attended by the
applicant on 27 November 1986, the Social Services decided that the
applicant should have less contact with the children. They reduced
access visits to once per month and arranged for Mr. and Mrs. N. to
apply for custodianship of the children. The application was due to be
heard on 2 July 1987, but Mr. and Mrs. N. withdrew their application
before the hearing.
A representative of the Family Rights Group enquired on the
applicant's behalf of the appeal procedures available to challenge the
decision to reduce access and was informed by letter dated
10 December 1986 that an appeal lay to the Director of the Social
Services. By letter dated 19 January 1987, the applicant appealed to
the Director requesting that the decision be reconsidered. The
Director by letter dated 27 February 1987 informed the applicant that
after studying the situation, he felt that monthly access would be
most in the interests of the children, but that he would expect this
to continue without any further reduction in the future. The
applicant was later informed that the next stage of the appeal
procedure would be to submit the case to the Child Protection and
Special cases Sub-Committee of the local authority and that there was
no provision for parties to attend in person.
Access arrangements were reviewed by the sub-committee
at a meeting on 22 June 1987, where it was decided that not less
than monthly access was in the best interests of the children; that,
save in the most exceptional circumstances, there should be no further
reduction in access; and that access should take place at the foster
home but this situation should be kept under review in light of any
change which indicated that the children might benefit from time spent
with their mother elsewhere.
In July 1987, the applicant left Oak Lodge and moved into a
one bedroom flat. She began training to be a Youth Worker.
On 18 January 1988, the Social Services reviewed the case
again, noting the applicant had attended all the monthly visits to her
children. It was decided that monthly access continue but that a
social worker should visit the applicant's accommodation and that a
social worker and the foster parents should find out the children's
wishes and feelings regarding access.
In February 1988 the applicant instructed her solicitors to
apply to the Juvenile Court to revoke the care orders on her
children. The Social Services agreed however that they would not
dispute on jurisdictional grounds an application by the applicant
within wardship. The applicant obtained legal aid and issued an
originating summons in wardship. Following an order on 21 June 1988,
the children have been confirmed as wards of court. Since then, the
applicant has been granted further access namely, 2 periods during
which the applicant may take her eldest daughter out during part of a
day. The guardian ad litem appointed by the Juvenile Court continued
to represent the children. In a report dated 3 June 1988, she stated
that the change in the applicant over the last 3 years was remarkable
and that she now appears to be a thoughtful young woman who views the
future positively. She reported that the applicant had been drug free
since 1987, was starting to establish a career for herself and that
although the applicant wishes to resume care of her children, she
recognised that the children's best interests were paramount and would
accept whatever that might entail. The guardian ad litem recommended
that access be increased, to allow the applicant to take out her 2
daughters at fortnightly intervals between the monthly visits.
The guardian ad litem has since been replaced before the High
Court by the Official Solicitor. The High Court would again consider
the applicant's access to her children on 27 February 1989.
COMPLAINTS
The applicant's complaints relate only to the decisions on
access culminating on 22 June 1987. In this regard, the applicant
complains that the law relating to children taken into care is in
breach of Article 6 of the Convention in that parents are not entitled
to a fair and public hearing. The applicant complains that she is
denied any right to challenge in a court of law the amount of access
which she is allowed.
The applicant complains that the legislation and application
of the legislation as indicated by recent cases before the European
Court of Human Rights is in breach of Article 8 of the Convention and
is not necessary in a democratic society. The applicant complains
that the decision-making machinery concerning parental contact with
children in care does not afford her an adequate opportunity to
influence or to participate in the decisions and therefore violates
her rights under Article 8 of the Convention. In particular, the
applicant complains of the failure of the local authority to provide
access which could develop into reintegration of the children into
family life with the applicant.
The applicant also complains that she does not have an
effective remedy in respect of her complaints contrary to Article 13
of the Convention.
The applicant further submits that, for the purposes of
Article 26 of the Convention, there has been no final decision in
respect of her complaints, the situation being a continuing one in
which the applicant is denied any right to challenge in a court of law
the amount of access which she is allowed.
THE LAW
The applicant has complained that she is denied access to
court to challenge decisions concerning access, that the
decision-making machinery concerning access of children in care fails
to protect her interests and that she has no remedy for her
complaints. She invokes Articles 6, 8 and 13 of the Convention.
The Commission recalls that it must confine itself, as far as
possible, to an examination of the concrete case before it and may not
review the law in abstracto. The Commission therefore may only
examine the applicant's complaints insofar as the system of which she
complains has been applied against her (see e.g. Eur. Court H.R.,
Olsson judgment of 24 March 1988, Series A no. 130, para. 54). It
follows that the Commission can only examine the decisions taken and
procedures implemented in the present case.
The Commission recalls that following the case-conference of
27 November 1986, the local authority decided to reduce access from
once per week to once per month and that this decision was reviewed by
firstly, the Director of Social Services and secondly, the special
sub-committee of the local authority, which on 22 June 1987 upheld the
decision to reduce access.
The Commission considers that it is not required to decide
whether or not the facts alleged by the applicant disclose any
appearance of a violation of the provisions invoked by the applicant.
Article 26 of the Convention provides that the Commission "may only
deal with the matter... within a period of six months from the date on
which the final decision was taken".
In the present case the decision of the sub-committee of the
local authority, which was the final decision regarding the subject
of the applicant's complaints, was given on 22 June 1987 whereas the
application was submitted to the Commission on 2 February 1988, that
is more than six months after the date of this decision. It is true
that the applicant submits that, in particular, the lack of access to
court is a continuing situation and that the decision of 22 June 1987
cannot be regarded as the "final decision" within the meaning of
Article 26. However, this factual situation arose on 22 June 1987 and
must therefore in the Commission's opinion be regarded as the "final
decision" also for the purposes of the complaint of non-access to
court. Furthermore, an examination of the case does not disclose the
existence of any special circumstances which might have interrupted or
suspended the running of the six month period.
It follows that the application has been introduced out of
time and must be rejected under Article 27 para. 3 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)