AS TO THE ADMISSIBILITY OF
Application No. 15993/90
by C.S., D.S., C.S. and A.S.
against the United Kingdom
The European Commission of Human Rights sitting in private on
15 February 1990, the following members being present:
MM. C.A. NØRGAARD, President
E. BUSUTTIL
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
Mrs. G.H. THUNE
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 21 December
1989 by C.S., D.S., C.S. and A.S. against the United Kingdom and
registered on 4 January 1990 under file No. 15993/90;
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 by the applicants may be
summarised as follows.
The applicants are British citizens living in Weymouth,
Dorset. The first applicant is a civil servant, born on 25 December
1958. The second applicant is the first applicant's wife and is a
chambermaid, born on 17 July 1960. The third and fourth applicants
are children of the first and second applicants, born in 1982 and 1985.
The applicants were married on 25 February 1978. On 6 October
1978, they had their first child, A, a daughter. Following the birth,
the second applicant suffered severe post-natal depression, and this
combined with difficulties in the applicants' marriage resulted in
social workers becoming involved with the family.
One morning when A had been crying continuously, the second
applicant, after trying to comfort her, became frustrated and threw A
into a chair which she bounced out of and hit her head on the side of
the wall. A was knocked unconscious and was taken to hospital where
she was found to have a fractured skull. The paediatrician, Dr. P.,
who examined A, was of the opinion that as a result she was paralysed
down one side and partially blind in one eye.
Following this incident, A was taken into care by the local
county council who placed A with foster parents. The second applicant
was prosecuted on a charge of grievous bodily harm. She pleaded
guilty and was placed on probation for three years and obtained
psychiatric help.
The applicants' relationship with each other improved and they
instituted proceedings in the Magistrates' Court to regain the care
and control of their daughter A. At first instance, they failed and
appealed to the Crown Court where they succeeded. Wardship
proceedings were then instituted in the High Court by the foster
parents and the county council. The applicants failed in these
proceedings and care and control of A was awarded to the foster
parents. Both before and after these proceedings the applicants were
allowed limited access to A.
On 19 November 1982 the applicant had a second child, B, a son
(the third applicant). B is thought to suffer from hereditary
epilepsy.
B was originally on a child at risk register until July 1985
when he was removed from this register, as the applicants state that
they had shown themselves to be good parents. When B was two years
old, the second applicant became pregnant again.
On 27 August 1985, an incident occurred, which resulted in B
being taken to hospital with injuries. The applicants stated that the
first applicant had taken B to the toilet. B made his own way to the
top of the stairs where he was told to wait. According to the
applicants B tried to make his own way down the stairs but fell. He
was taken to the hospital and seen by Dr. P who considered that the
injuries sustained by B were not consistent with a fall down stairs as
there were bruises on the back of his legs. The applicants state that
these bruises were caused whilst B was being put into a push chair
during a temper tantrum.
As a result of this incident involving B, the county council
obtained a place of safety order and a 28 day care order from the
Magistrates' Court. The county council then initiated wardship
proceedings in the High Court.
The applicants' third child, a son C (the fourth applicant),
was born on 21 October 1985. The applicants made C a ward of court
as the county council were threatening to do this. A hearing was
scheduled for December 1985 but was postponed until January 1986 due
to the number of people listed to give evidence on behalf of the
county council.
On 22 January 1986, following a hearing, the judge found the
first applicant responsible for injurying B's frenulum under his top
lip. While extremely sceptical as to the causes of the other
injuries, that is, a fractured collar bone and other bruises, the
judge was unable to conclude that they were non-accidental. The
applicants had only one medical opinion to rely on at the hearing, as
they state their solicitors had failed to approach anyone else. They
also were not given a copy of the medical report concerning B's
injuries. The matter was adjourned by the judge until July 1986 to
allow for further reports to be made. The judge advised the
applicants to obtain a good psychiatrist to show that they were
capable parents and the applicants were advised by their counsel that
they had a lot of work to do in order to sort matters out. The
applicants state that as they were very upset they were unable to
grasp what was expected of them and relied upon their solicitors to
sort matters out.
Following the hearing in January 1986, B remained with the
short-term foster parents and C was allowed to stay with the
applicants though under constant supervision. The first and second
applicants also were allowed access to B. The county council appealed
against the judge's decision in January 1986, and the appeal was
turned down in June 1986.
The applicants state that prior to the July 1986 hearing they
did not have proper consultations with their solicitors in order to
decide what was needed. They obtained for themselves a psychologist,
who turned out to be not sufficiently experienced in cases such as the
applicants'. They also obtained medical evidence and attempted to
obtain evidence from a forensic scientist.
The applicants state that, a week before the July hearing, the
first applicant was pressed by his solicitors and counsel into
admitting that he injured B and was told that if he did not admit
this, B would remain in care and C would be taken into care. The
first applicant was very confused and accepted the legal advice he
received and admitted to injuring B although he states that this was
not true.
Following a hearing in July 1986, the judge ordered on 28 July
1986 that A be released for adoption, and B and C be placed in
long-term foster care. The applicants were to be allowed reasonable
access to B and C. In his judgment, the judge found that C was being
"perfectly properly looked after" and that no criticism could be made
of the first and second applicants' management of him in their home.
The judge went on however:
"My finding at Bristol was that I set myself the criminal
burden of proof, and I was quite sure that the injury to
been a vicious one. I was extremely cynical about other explanations. In the end I felt that that blow was the clearest possible evidence of child abuse. I made a number of comments on the other injuries which indicated that I found the explanation highly unsatisfactory, and if necessary reference can be made to my judgment of 22 January 1986, which is before me. Since that time, on the issue of injuries, coming in front of me, admitted that he did strike B. He only admits to a much less vicious blow than I think occurred. He also admits to having treating B roughly when putting him into his pushchair, which was the alleged cause of the marks across his buttocks. I must say that I do not think I have heard the whole truth about this matter. The line across the buttocks, being a continuous line, seems to be one that is unlikely to have been suffered as a result of being pushed into a pushchair where the child is probably struggling, as I understand it, in a tantrum. Thus I remain cynical in my approach to the remaining injuries, and I approach the matter now on the basis that those injuries occurred whilst B was in the care and control of his parents. I therefore have two incidents with different children where the children have suffered severe injuries. In A's case with sad after effects and that, plus a number of other injuries, occurred whilst these children were in the care of their parents." The judge reviewed the psychiatric evidence concerning the first and second applicants: "There are one or two factors in the individual tests which cause me some concern in assessing the future of these parents. There were fifteen headings under which they were assessed and I only refer to five of them. Under 'Deferences' as a heading, 'conformism following instructions and expectations', the mother was marked as 'low'. Under 'Automony', that is (quoted) she was marked as 'high'. They were each marked as 'average' on 'Succorance', that is in receiving help and encouragement from others. Father on 'Endurance', that is perseverence and persistence, was low. On 'Aggression', tendency to contradict and criticise and be angry, the mother was high and father was low. So that in three fields which do seem to me to be important mother was low in following instructions, high in avoidance of obligations, high in tendency to contradict and criticise and be angry. Father was low in perseverence and persistence and low in aggression. It seems to me, therefore, that there are very considerable problems thrown up by that test in the characters of the parents which lead me to think that the future holds very considerable doubts. careful report - went on to indicate that if there was a huge input of social work therapy and intervention in this family he felt that the risk to B and C in the future ... to use his expression, 'the possibility of any damage occurring to either child would be minimised'; but he did require intensive supervision and regular therapy on various aspects. He also emphasised that the therapy could not really expect to succeed unless the children were back with their parents and the logical step from there is that it would be necessary in order to seek to help the parents to put the children at some risk. The whole process would take some time. That time was uncertain but certainly it would depend upon motivation. Motivation here is obviously an important factor because of the history of the matter. It is stressed by the local authority that whilst the motivation is there the parents can conform and keep themselves under control, whereas when motivation no longer exists the risk not only arises but the damage takes place. C's position, it is commented, is really a repeat story. There has been, as I have said, constant and intense supervision. Their case is really put in this way. This was this really was a replay of what had occurred between 1980 and 1985. He said this was not a real situation which now existed because of the intense supervision. He said it was unnatural and it was really unusual in his experience. He pointed out that the dangerous age for children, when they are most at risk to physical abuse, is when they become wilful, independent, and more mobile. That A and B had been at a vulnerable age and that C had not reached, but in about a few months or years would reach, the dangerous age, and that the problems would exist, he felt, in the parents trying to deal with two children, in seeking to control B who was now growing even older they would have great problems amongst themselves. He felt that he could not be confident and he had a deep feeling quite clearly, from watching, that something further might happen to one or other of these children if they remained with their parents. He undoubtedly had genuine fears about the matter. He has been involved in this case for a substantial period of time, knows everyone involved well, and one can only respect his frankness. I must take that into account. The relationship between the parents has been one of the major factors running through the history of this matter. I was, therefore, yet again, as I did in Bristol, observing them and seeking to discover whether there was a real basis of secure understanding and mutual respect upon which one could build real hopes for the future. It is perfectly understandable, and indeed I sympathise with their acute emotional distress, which occurs frequently and persistently. It is a factor, but only a factor. But looking at the whole history, looking at the comments made through the evidence, and there has been a mass of affidavit evidence and other evidence to which I have not referred in detail, I am left in considerable doubt about the future stability of the relationship between the parents. In the light of what has happened one would need to be doubtful since that the relationship had reached a stability on which one could build ..." The judge concluded: "... where does that review of the picture as it now presents itself leave me? It leaves me with the greatest worries. I do not think I have heard the whole story from these parents. It is a very sad case indeed. I realise I also saw in the evidence that at one stage children need? They need above all a plan for their future. They need a security from that plan and a consistency, and they need to avoid the serious risks which undoubtedly in my judgment exist. Now, if B was to return to his family and there were anxieties subsequently, even though no actual injury took place, he would have to be removed once more. That would mean back to short term foster parents and then a further issue no doubt as to whether he should go back to his parents or not. He undoubtedly suffered a number of injuries whilst in their care and the future must in my judgment lie in the long-term planning with foster parents. In B's case I shall make a full care order giving leave for him to be placed with long-term foster parents. ..., to whom I am indebted for a most admirable presentation of the parents' case, suggested that a further six months could elapse during which one could see whether therapy instituted by successful. She submitted that there were the beginnings of such signs even now. I do not think that, with respect to her submission, I should take that course, as I am satisfied that B now must be allowed to plan his future through those who are looking after him. As to C, one is left with probably the saddest and most difficult decision of all three children. It is a question here of balancing the risks. It is happily - although publicity is given to every incident in this country now, or to many of them - that child abuse is comparatively rare. But for it to happen twice is in my experience, and I believe in the experience of many others, extremely rare. The picture now is the picture which was presented by B when he was taken off the 'at risk' register, and within six weeks he was in hospital with the injuries which I have described. I appreciate the hurt that I shall be causing to the parents, but my duty is clear to this child, which is to place him in care. I shall make a care order in respect of C also." Following the hearing in July, the first applicant sought a variation of the July order on the basis that the first and second applicants had been advised that until they made frank admissions and acknowledged that they were at fault and needed help, no-one would be prepared to trust them. The first and second applicants also applied to seek further psychiatric evidence. The application was heard by the High Court judge on 22 August 1986 who refused it on the basis that it was in effect an appeal against his earlier order and the proper forum for that was the Court of Appeal. He commented that he had adjourned the hearing in January for evidence to be sought and that there had been ample opportunity for this to be done. The applicants' counsel submitted advice on the appeal and legal aid was revoked in spite of this advice. The applicants changed their solicitors who obtained for them new counsel. The applicants state that the new legal advisers were critical of the applicants' previous legal representatives' handling of the case. The applicants successfully appealed against the revocation of legal aid and obtained advice to appeal out of time. The application for leave to appeal out of time was granted, but the appeal against the July 1986 order was dismissed on 19 February 1987. On 2 March 1987, the first and second applicants introduced before the Commission an application, no. 12792/87, in which they complained of being deprived of a fair hearing contrary to Article 6 para. 1 of the Convention and of being deprived of the care and custody of B and C contrary to Article 8 of the Convention. The applicants alleged that their right to a fair hearing was prejudiced by their legal advisers' neglect in not obtaining proper medical and psychiatric evidence and their advice to the first applicant to make a false statement under oath that he had caused certain injuries to his son, B. The Commission dismissed the application as manifestly ill-founded on 13 July 1987. On 14 April 1987, the county council took out a summons 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. On 26 May 1989, following a hearing at which the first and second applicants were represented by counsel and solicitor, Mrs. Justice Booth made an order terminating the first and second applicants' access to B and C and ordered that B and C be freed for adoption. The judge stated in her judgment that she was bound by the findings of the courts dealing with the earlier applications. She found that B and C, who were now placed in the same foster home, were settled with the foster parents and that rehabilitation with the first and second applicants was not a viable proposition. "It is inconceivable that a child such as C - so young - for whom the V only home that he will ever remember, could be moved without the risk of enormous emotional damage. It would, I think, destroy these children to be separated for no good reason, even if it was thought safe to remove B, which I cannot find any evidence for whatever. It seems to me therefore that an adoption order at the end of the day would be one that was in the best interest of these children. Having said that, it must follow as a matter of course that access then would be very difficult to sustain indeed. Access is generally not compatible with an adoption order. That is not a once and for all or hundred per cent rule, because there are circumstances where the attachment of children to their natural parents or natural family is so strong that access should be continued and can be contained in an adoption situation - in other words, it will not undermine the adoption placement. But in my judgment, this is not that sort of case. Indeed it is far from it, because my findings already make it clear that access is incompatible now with the placement with Mr. and Mrs. V. It is disturbing to B. It will soon be disturbing to C. It does not promote their security and stability within the V's household. It undermines that placement. For those reasons, I would think it right that access should come to an end." The first and second applicants appealed to the Court of Appeal, but their appeal was dismissed on 28 November 1989. COMPLAINTS The applicants complain that they have been deprived of their right to family life under Article 8 of the Convention. They submit that in determining questions as to care, courts have a duty to ensure that they are equipped with all the relevant facts. Since the applicants were not given a copy of the medical report concerning B's injuries and the applicants' solicitors failed to obtain an independent medical report, the judge was not presented with the full facts of the case in deciding whether the injuries were non-accidental. The judge should have ordered an adjournment to allow the applicants to obtain an independent medical opinion. The finding of the judge lead to B and C being taken into care and later freed for adoption and the applicants submit there has therefore been an unjustified interference with their right to family life in that the parents have been unjustifiably deprived of their children and the children unjustifiably deprived of their family life with their birth parents. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 21 December 1989 and registered on 4 January 1990. By letter dated 21 December 1989, the applicants requested that Rule 36 of the Commission's Rules of Procedure be applied to prevent the adoption of B and C pending their application before the Commission. On 11 January 1990, the President of the Commission decided not to indicate to the United Kingdom Government the measure requested but that the applicants be informed that the application would be examined by the Commission in its session beginning on 5 February 1990. THE LAW The applicants complain of being deprived of their right to respect for family life as guaranteed under Article 8 (Art. 8) of the Convention. Article 8 (Art. 8) of the Convention provides: "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 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." The Commission recalls that the first and second applicants introduced an earlier application, No. 12792/87, in which they complained under Article 8 (Art. 8) in respect of the proceedings before the High Court following which B and C were placed in long-term foster care. This application was dismissed as manifestly ill-founded on 13 July 1987. The Commission must therefore determine whether the present application is substantially the same as the one which it already has examined or whether this application contains relevant new information within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention. The Commission notes that the present application is based on the same facts as the earlier one. In this application however it is argued that the courts were at fault in determining the question as to custody of B and C without ensuring that they were equipped with all the relevant facts and that the findings in these proceedings led to B and C subsequently being freed for adoption. This application is also brought on behalf of B and C, the third and fourth applicants. Insfar as the first and second applicants complain of the decision of the High Court of 28 July 1986 which ordered B and C to be placed in care, the Commission considers that the new argument adduced as to the duty of the courts to ensure they were equipped with all the relevant facts does not constitute new relevant information within the meaning of Article 27 para. 1 (b) (Art. 27-1-b). The Commission accordingly finds this part of the application substantially the same as the previous application and in these circumstances, the first and second applicants' complaints as to these proceedings must be dismissed as inadmissible under Article 27 para. 1 (b) (Art. 27-1-b) of the Convention. Insofar as the first and second applicants complain that B and C have now been freed for adoption and access terminated, the Commission recalls that this step was taken following its previous decision in application no. 12792/87 and consequently the Commission may proceed to examine this aspect of the first and second applicants' complaints. The Commission finds that the decision to free B and C for adoption and terminate access constitutes an interference with the first and second applicants' right to respect for their family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention. The Commission must therefore determine whether this interference was justified under the terms of Article 8 para. 2 (Art. 8-2), i.e. whether it was in accordance with the law, pursued one or more of the legitimate aims set out in paragraph 2 (Art. 8-2) and whether it was "necessary in a democratic society" for that or those legitimate aims. The Commission recalls that B and C were freed for adoption by the High Court pursuant to its wardship jurisdiction and that the High Court made the order as necessary to protect B and C from further risk of injury or emotional damage. The Commission accordingly finds that this decision was "in accordance with the law" and for the legitimate aim of protecting B's and C's health and well-being. The question remains whether the decision was "necessary" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. The case-law of the Commission and the Court establishes that the notion of necessity implies that the interference corresponds to a pressing social need and that it is proportionate to the aim pursued. Further, in determining whether an interference is necessary the Commission and the Court will take into account that a margin of appreciation is left to the Contracting States, which are in principle in a better position to make an initial assessment of the necessity of a given interference. When determining whether or not the freeing of B and C for adoption and terminating the first and second applicants' access to them were necessary in the interest of B and C, the Commission observes that it is not its task to take the place of the competent national courts and make a fresh examination of all the facts and evidence in the case. The Commission's task is to examine whether the reasons adduced to justify the interference at issue are "relevant and sufficient" (Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, p. 32, para. 68). The Commission has accordingly examined the reasons given in the judgment of the High Court on 26 May 1989. The Commission recalls that the High Court judge found that the adoption was in the best interests of the children, since removal from their foster parents would cause enormous emotional damage and place them at further risk. The High Court judge also found that access was incompatible with adoption since it was disturbing B, threatened to disturb C and undermined their security and stability in their new home. The Commission finds that these reasons were "relevant" and "sufficient" for the decisions in question. The Commission also recalls that the first and second applicants were present at the hearing and were represented by solicitor and counsel. The applicants therefore had the possibility of putting forward any views which in their opinion would be decisive for the outcome of the case. With regard to these facts, the Commission finds that the procedural requirements implicit in Article 8 (Art. 8) were satisfied since the first and second applicants were involved in the decision-making process to a degree sufficient to provide them with the requisite protection of their interests (see e.g. Eur. Court H.R., W v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 28-29, paras. 63-65). The Commission therefore finds that, bearing in mind the margin of appreciation accorded to the domestic authorities, the interference in the present case was justified under the terms of Article 8 para. 2 (Art. 8-2) of the Convention as being "necessary in a democratic society" for the protection of health and for the protection of the rights of others. 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. 3. The Commission has lastly examined the application as presented on behalf of B and C as third and fourth applicants. The Commission has considered whether the first and second applicants may properly act on behalf of the third and fourth applicants but finds it unnecessary to decide the issue for the reasons set out below. Insofar as complaints in a petition are substantially the same as those put forward in an earlier application, they cannot be rejected under Article 27 para. 1 (b) (Art. 27-1-b) where they are presented by different persons with a specific personal interest in introducing the application (see e.g. No. 9028/80, Dec. 16.10.80, D.R. 22 p. 230). However, the Commission finds no reason to differ from its conclusions in the previous application no. 12792/87 and its finding above that the courts acted in the best interests of B and C in reaching their decisions and that the measures taken were in accordance with the law and necessary in a democratic society for the protection of B' and C's health under Article 8 para. 2 (Art. 8-2) 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. For these reasons, the Commission DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)
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