CASE OF W. v. THE UNITED KINGDOM

 

 

 

COURT (PLENARY)

 

 

 

 

 

 

CASE OF W. v. THE UNITED KINGDOM

 

(Application no. 9749/82)

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG 

 

8 July 1987

In the case of W v. the United Kingdom[*],

The European Court of Human Rights, taking its decision in plenary session in pursuance of Rule 50 of the Rules of Court and composed of the following judges:

Mr. R. Ryssdal, President,

Mr. J. Cremona,

Mr. Thór Vilhjálmsson,

Mr. G. Lagergren,

Mr. F. Gölcüklü,

Mr. F. Matscher,

Mr. J. Pinheiro Farinha,

Mr. L.-E. Pettiti,

Mr. B. Walsh,

Sir Vincent Evans,

Mr. R. Macdonald,

Mr. C. Russo,

Mr. R. Bernhardt,

Mr. J. Gersing,

Mr. A. Spielmann,

Mr. J. De Meyer,

Mr. N. Valticos,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,

Having deliberated in private on 29 November and 1 December 1986, and 28-29 January and 25 May 1987,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1.   The present case was referred to the Court by the European Commission of Human Rights ("the Commission") on 28 January 1986, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The case originated in an application (no. 9749/82) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission on 18 January 1982 under Article 25 (art. 25) by a British citizen whose identity, having regard to the sensitive nature of the case, remains confidential.

2.   The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6, 8 and 13 (art. 6, art. 8, art. 13).

3.   In response to the inquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings pending before the Court and designated the lawyer who would represent him (Rule 30).

4.   On 19 March 1986, the President of the Court decided that in the interests of the proper administration of justice this case and the cases of O, H, B and R v. the United Kingdom should be heard by the same Chamber (Rule 21 § 6).

The Chamber of seven judges to be constituted included, as ex officio members, Sir Vincent Evans, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 19 March 1986, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mrs. D. Bindschedler-Robert, Mr. G. Lagergren, Mr. C. Russo, Mr. J. Gersing and Mr. J. De Meyer (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).

5.   In his capacity as President of the Chamber (Rule 21 § 5), Mr. Ryssdal consulted, through the Registrar, the Agent of the United Kingdom Government ("the Government"), the Delegate of the Commission and the applicant’s lawyer on the need for a written procedure (Rule 37 § 1). Thereafter, in accordance with the President’s orders and directions, the following documents were lodged at the registry:

- on 16 June 1986, memorandum of the applicant setting out his claim under Article 50 (art. 50) of the Convention;

- on 25 July 1986, memorial of the applicant;

- on 13 August 1986, memorial of the Government.

By letter of 21 October 1986, the Secretary to the Commission informed the Registrar that the Delegate would present his observations at the hearings.

6.   On 23 October 1986:

(a) the Chamber decided under Rule 50 to relinquish jurisdiction forthwith in favour of the plenary Court;

(b) the President of the Court directed that the oral proceedings in this case and in the cases of O, H, B and R v. the United Kingdom be conducted simultaneously and that the same should open on 25 November 1986 (Rules 37 § 3 and 38);

(c) the Court decided that, in view of the exceptional circumstances, the hearings should be held in camera (Rule 18).

As regards points (b) and (c), the Court or its President, as the case may be, had previously consulted, through the Registrar, the Agent of the Government, the Delegate of the Commission and the representatives of the applicants.

7.   The hearings were held in camera in the Human Rights Building, Strasbourg, on 25 and 26 November 1986. Immediately before they opened, the Court had held a preparatory meeting.

There appeared before the Court:

- for the Government

Mr. M. Wood, Legal Counsellor,

Foreign and Commonwealth Office, Agent,

The Hon. Michael Beloff, Q.C.,

Mr. E. Holman, Barrister-at-Law, Counsel,

Mr. R. Aitken, Department of Health and Social Security,

Mrs. A. Whittle, Department of Health and Social Security,

Mr. H. Redgwell, Lord Chancellor’s Department,

Mr. P. Evans, Solicitor’s Office,

Gloucestershire County Council,  Advisers;

- for the Commission

Mr. H. Danelius, Delegate;

- for the applicant

Mr. L. Blom-Cooper, Q.C.,

Mr. S. Bellamy, Barrister-at-Law, Counsel,

Mr. N. Robertson Smith, Solicitor.

The Court heard addresses by Mr. Beloff for the Government, by Mr. Danelius for the Commission and by Mr. Blom-Cooper for the applicant, as well as replies to questions put by the Court and three of its members.

The Government and the applicant filed various documents during or immediately after the hearings.

AS TO THE FACTS

I.   PARTICULAR CIRCUMSTANCES OF THE CASE

A. Background

8.   The applicant, who is a British citizen born in 1951 and lives in England, was married in June 1973. He and his wife have three children; the present case concerns only the youngest of them, S, who was born on 31 October 1978. The couple has a history of serious marital and financial difficulties.

9.   On 1 March 1979, when the applicant’s wife was suffering from post-natal depression and alcoholism, S was placed by his parents into the voluntary care (see paragraphs 35-37 below) of the local authority ("the Authority"). He stayed with foster parents on a temporary basis, returned home on 8 March at the applicant’s request and was again placed voluntarily in care on 21 March. After one day at home on 13 April, he was again voluntarily returned to care and remained with foster parents until 18 May. He then spent a period with his parents before once more, on 5 June, returning to and remaining in voluntary care, subject to parental visits and some weekends at home.

B. Parental rights resolutions in respect of S

10.  Following a suggestion made by her to the Authority’s social workers, the applicant’s wife took S home on 14 August 1979 but subsequently changed her mind and returned him to the foster parents. On 16 August, the Authority, which had already given previous consideration to such a course, passed resolutions assuming the parental rights of the applicant and his wife over S (see paragraph 38 below). It had apparently not informed them that such resolutions were proposed, but on 7 September it reached an agreement with them that S would be returned to them in February 1980 if they overcame their domestic difficulties. In any event, the applicant did not exercise his right to object to the resolution affecting him (see paragraph 39 below).

11.  On 22 November 1979, the day after the applicant’s wife had been admitted to hospital for treatment following a deterioration in her alcoholism, the Authority reviewed the family circumstances. It was concluded that the prospects of S’s rehabilitation were poor but that the aforementioned agreement should be retained, the social workers responsible considering that there could be no postponement of the date for S’s return to his natural parents beyond February 1980. In case it proved impossible to effect the return at that time, it was also agreed that the possibility of finding long-term foster parents should be examined as a contingency plan.

12.  S spent four days over Christmas 1979 with his natural family. The applicant continued to look after his two older children but in January 1980 they were placed temporarily into voluntary care as he was threatened with loss of his job if he did not resume work; the placement was intended to end on his wife’s discharge from hospital.

A social worker saw the applicant’s wife in hospital on 22 January and reported that she seemed worried at the prospect of the children’s return home. The social worker warned her that, as regards S, the alternative would be his placement in long-term care. On 31 January, the social worker saw the applicant in connection with his matrimonial difficulties and the future of the two older children, but the prospect of S not being returned to his natural parents was not discussed.

13.  On 14 February 1980, the Authority passed resolutions to assume parental rights over the two older children. According to the applicant, he raised no objection since it was agreed between the parents and the Authority’s care officers that these children would be returned to their parents over a period. They were in fact returned on 1 August 1980 and have remained at home ever since. The applicant and his wife contend that they understood the agreement to envisage the return of S as well.

C. Placement of S for adoption and termination of parents’ access

14.  According to the report of the Local Ombudsman (see paragraph 22 below), the social workers responsible for S and the remainder of the applicant’s family reached the conclusion in January or February 1980, from their nearly continuous review of the circumstances, that the arrangement for returning S to his natural parents would not work in view of the prognosis for the applicant’s wife’s alcoholism and the apparent breakdown of the marriage. On an unrecorded date, an unspecified person or persons in the Authority’s Social Services Department decided that S should not return home but should be placed with foster parents on a long-term basis with a view to adoption and that the natural parents’ access to him should be restricted. There is no recorded minute of any decision to this effect having been taken by the Authority in a formal manner at that time and the possibility of such placement was apparently not mentioned to the applicant when the social workers saw him on 31 January nor to his wife on 14 February, when they visited her to inform her of the resolutions concerning the two older children. Although it appears from the Local Ombudsman’s report that the parents had on previous occasions been made aware of the possibility that S might be placed in long-term care, he was clearly not satisfied that the likely course of events with regard to S had been made sufficiently plain to them and that they had been properly consulted before the decision was taken not to return the child to them.

In any event, on 20 and 26 March respectively, the applicant and his wife were informed of the decision orally by the social workers responsible. According to the Local Ombudsman’s report, the social worker dealing with the case was not sure that even then either parent clearly understood what was being said about S’s future, their concern at the time being "totally focused" on the two older children.

15.  On 31 March 1980, the Authority’s Adoption and Foster Care Committee, without further reference to the applicant or his wife, considered and approved the proposal to place S with long-term foster parents and to restrict his natural parents’ access to him. The Committee was told by the social workers responsible that the applicant and his wife, who were neither present at nor knew of the meeting, disagreed with the proposal. The minute of the Committee’s discussion records: "It was suggested that if there was to be no parental contact the mother particularly would ‘search to the ends of the earth for [S]’. However, parental contact to be controlled and not at [the foster parents’] home."

The Authority informed the Local Ombudsman in the course of his enquiries that, in its view, this minute reflected the intention that the applicant and his wife should not know where S was placed. In any event, it clearly records a decision that access should be restricted, both as to location and frequency, but not terminated.

16.  On 22 April 1980, the senior social worker responsible for the case visited the applicant and his wife to inform them that S was being moved to new foster parents; the record of his visit states that he told them that he was not prepared to disclose where the foster parents lived. In addition, it appears that since the Area Director of Social Services considered that access would jeopardise the chances of S developing a satisfactory relationship with the new foster parents, he had decided that the applicant and his wife should not be allowed to visit S. It is not revealed how, if at all, this decision to terminate access derived from the discussions of the Adoption and Foster Care Committee as recorded in the minute quoted above. According to the Government, the applicant was made aware of this decision in May.

17.  On 9 May 1980, S was moved to a new foster family for long-term fostering, with a view to adoption.

D. Discharge of parental rights resolutions; wardship proceedings

18.  Some time after May 1980 and apparently as a result of the shock of being sentenced to prison for theft, the applicant’s wife made a remarkable recovery from her alcoholism. The couple also resolved their matrimonial difficulties. They continued to seek access to S and protested to the Social Services Department at the refusal thereof; a meeting for them to see the child at the social services building was eventually arranged in July 1980. Having consulted solicitors in September with a view to challenging the Authority’s actions, the applicant and his wife were granted legal aid to apply to a juvenile court to discharge the Authority’s parental rights resolutions concerning S (see paragraph 40 below) and proceedings were issued on 4 November. At the request of the Authority, the hearing, originally fixed for 11 December, was postponed to 8 January 1981. On 16 January, the juvenile court held that both of the resolutions should "henceforth be terminated", thereby permitting S to be returned to the applicant and his wife.

19.  On the same day, the Authority appealed to the Divisional Court against the juvenile court’s decision (see paragraph 41 below) and also issued proceedings in the local District Registry of the High Court to have S made a ward of court (see paragraphs 42-44 below).

There followed a period of uncertainty as to which of these proceedings the Authority would pursue. On 5 February 1981 (the last possible day to prevent the wardship from lapsing; see paragraph 44 below), the Authority took out a notice for an appointment, to be held on 3 March, for hearing the summons initiating the wardship. On that day, when the Authority applied to the High Court for directions, the applicant’s solicitor challenged the propriety of the wardship proceedings as a duplication of the jurisdiction and this question was referred as a preliminary issue to be heard before a High Court judge. On 25 March, the judge permitted the Authority, which undertook to withdraw its appeal before the Divisional Court, to continue with the wardship proceedings; he directed that the case be heard as soon as possible and ordered that it be set down in the first week of June, no earlier date being available having regard to the expected length of the hearing.

20.  The case was heard on 15-18 and 22 June 1981. After evaluating the evidence submitted in relation to S’s well-being and the applicant’s circumstances (including a report of 9 June from an independent welfare officer), the High Court held that the wardship should continue and directed that the child should remain with the foster parents with whom he had been placed in May 1980 (see paragraph 17 above): there was no longer any practical alternative to this, too long a period having elapsed since S’s last contact with his natural parents (on 25 July 1980) for any change to be justified. The High Court also held that the applicant and his wife should not have access to the child, noting that restoring rights of access would only encourage them in their attempts to have S returned to them, a course which would not be in his best interests. However, in the course of his judgment, the judge stated:

"I can only say that it is extremely unfortunate that these [wardship] proceedings were not heard within a matter of a week or so after the [juvenile court’s] decision. I see no reason why they could not have been ... However, the hearing did not take place and the parents and the Court are now faced with the fact that a further four months have gone by in which S has become even closer to his foster parents."

"... I am not happy about the use of section 2 [of the Children Act 1948] powers to change the status of the child and to cut the parents out of his life, and I am unhappy about a decision arrived at by the local authority without the parents being heard or having the opportunity to make their own representations to the decision-making body ..."

The judge also commented on the "massive help" received by the parents from the social services.

21.  An appeal by the applicant to the Court of Appeal was dismissed on 6 October 1981. The Court of Appeal expressed its sympathy for the natural parents, describing the case as "tragic", but stressed that its duty was to arrive at a decision which was in the best interests of the child and that "the question from beginning to 1end is whether the child’s best interests would be served by remaining with his foster parents or by being transferred to his natural parents". Although the Court recognised that "both the mother and the father deserve all the credit for pulling themselves out of an appalling situation" and that they had "succeeded remarkably" in coping with their older children, it found that S presented "a different problem" in the light of the fact that he had spent almost the whole of his life in the care of other people.

E. Local Ombudsman

22.  The applicant referred the matter to the Local Ombudsman, who has the task of investigating complaints made by a member of the public claiming to have sustained injustice in consequence of maladministration in connection with action taken by a local authority in the exercise of its administrative functions.

In his report of 28 February 1983, the Local Ombudsman upheld the applicant’s allegation of maladministration in the way in which the Authority had taken its decisions concerning S, stating in particular that he criticised "the failure to put the parents properly in the picture before firm decisions were taken".

F. Subsequent developments

23.  On 23 March 1982, the foster parents with whom S had been placed in May 1980 were granted leave to apply to adopt the child (see paragraph 53 below). An adoption order relating to him was made on 5 October 1984, the High Court having decided to dispense with the applicant’s consent (see paragraph 52 below).

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A. Child care

 

1. Introduction

24.  In the law of England and Wales, there are a number of different and partially co-ordinated procedures for dealing with the welfare of children. Whilst the oldest of these is the wardship jurisdiction of the High Court, it has for many years co-existed with, but not been ousted by, various statutory provisions whereby a child who is at risk may be put into the care of a local authority.

Although the terms are not wholly accurate, the legislation is commonly divided into two categories: the first provides for "compulsory care", by establishing machinery whereby a local authority can obtain a court order committing a child to its care; the second concerns "voluntary care", the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts. At any given time, there are approximately 86,000 children in public care in England and Wales, of whom 70,000 are not living with their parents or a relative.

The statutory provisions have been amended on several occasions and many of them were repealed and replaced by the Child Care Act 1980 ("the 1980 Act"), a consolidating measure the greater part of which came into force on 1 April 1981. In the following summary of the law in force at the time of the present case, the original enactments are cited first and any corresponding provision of the 1980 Act in force at the relevant time is indicated in square brackets.

By way of general background information, the summary covers all three of the procedures referred to above (namely those relating to compulsory care, voluntary care and wardship), but in the present case it was the machinery for voluntary care and the wardship jurisdiction of the High Court which were directly relevant.

2. Compulsory care

25.  The principal statute concerning compulsory care is the Children and Young Persons Act 1969 ("the 1969 Act"), as amended by the Children Act 1975 and then partly replaced by the 1980 Act; it enables a local authority to obtain, as a temporary measure, a "place of safety order" and, as longer-term measures, a variety of other orders.

(a) Place of safety order

26.  Under section 28(1) of the 1969 Act, any person, including a local authority, may apply to a justice of the peace for authority to detain a child and take him to a place of safety; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe, inter alia, that the child’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated, or that he is exposed to moral danger.

A "place of safety order" so granted lasts for a maximum of 28 days and cannot be extended. The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it.

If the local authority wishes to retain the child in protective surroundings after the 28-day period, it has either to make the child a ward of court (see paragraphs 42-44 below), or to institute care proceedings under section 1 of the 1969 Act (see paragraphs 27-29 below), or to apply to a justice or a magistrates’ court for an interim order under section 28(6) (see paragraph 32 below); if an application of the last kind is refused, the child’s immediate release "may be ordered".

(b) Longer-term measures

(i) Care proceedings

27.  Under sections 1 and 2(2) of the 1969 Act, a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is, subject to certain exceptions, under a duty to institute care proceedings by bringing the child before a juvenile court.

28.  In care proceedings instituted by a local authority, the parties are the local authority and the child, but not the latter’s parents. The child is entitled, subject to his means, to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer. If the child is of sufficient competence, he may decide that he wishes to be separately represented.

A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority. As a matter of practice, the court will also allow such parent to cross-examine witnesses on behalf of the local authority and to have separate legal representation.

29.  If the court before which the child is brought is satisfied that one of the grounds specified in section 1 of the 1969 Act exists and that the child is in need of care or control which he is unlikely to receive unless an order is made, it may make, inter alia, a supervision order, a care order or an interim order. The specified grounds include those on which a place of safety order may be made (see paragraph 26 above).

(ii) Relevant orders

30.  A supervision order is an order placing the child under the structured supervision of the local authority; subject thereto, he may continue to live with his parents.

31.  A care order is an order committing the child to the care of the local authority. The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order (section 24 of the 1969 Act [10(2) of the 1980 Act]), except that it cannot cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it cannot agree to the child’s adoption.

32.  An interim order is a care order limited to a specified period not exceeding 28 days; it may be renewed on application (section 22 of the 1969 Act). It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made (section 2(10)) or, alternatively, during the currency of a place of safety order (see paragraph 26 above). The powers and duties of the local authority under an interim order are the same as under a full care order (see paragraph 31 above).

(c) Termination, variation or discharge of full care orders

33.  A full care order normally terminates when the child in question attains the age of 18 (section 20(3)(b) of the 1969 Act).

In addition, under sections 21(2) and 70(2), the juvenile court may, on application by the child or his parent on the child’s (but not his own) behalf and if it considers it appropriate, discharge the care order and may, on discharging it, make a supervision order in respect of the child. Such applications may be made every three months or, with the juvenile court’s permission, more frequently (section 21(3)). The paramount consideration in deciding whether to discharge the order is the interests of the child.

(d) Appeals concerning care orders

34.  Under sections 2(12) and 21(4) of the 1969 Act, the child in respect of whom the care order was made, or his parent on the child’s (but not his own) behalf, may appeal to the Crown Court against the making of a care order, against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge. The Crown Court will review the decision by way of re-hearing the case. From the Crown Court a further appeal may, with leave, be made to the High Court by way of case stated; thereafter an appeal lies to the Court of Appeal and, in rare cases, to the House of Lords.

The local authority has no general right to appeal against a juvenile court’s refusal to make a care order, except on a point of law to the High Court.

3. Voluntary care

35.  The principal statute concerning voluntary care is the Children Act 1948 ("the 1948 Act"), as amended by the Children Act 1975 and then replaced by the 1980 Act. This legislation in effect enables a parent to place his child into the care of a local authority; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently.

(a) Reception of a child into care

36.  Section 1 of the 1948 Act [2 of the 1980 Act] imposes on the local authority a duty to receive into its care a child under 17 where it appears, inter alia, that his parents or guardian are for the time being or permanently prevented by illness, incapacity or other circumstances from providing for his proper accommodation, maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child’s welfare. Whilst the authority must, save as otherwise provided in the Act, keep the child in its care so long as his welfare requires it and he has not attained the age of 18, it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child’s welfare.

37.  Section 1 of the 1948 Act [2 of the 1980 Act] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care. However, if the child has been in care throughout the preceding six months, no person may take him away unless he has given at least 28 days’ notice of his intention to do so or has the authority’s consent (section 1(3A) [13(2)]).

Moreover, if a parent requests the return of the child, the authority is not compelled to comply regardless of his welfare (Lewisham London Borough Council v. Lewisham Juvenile Court Justices [1979] 2 All England Law Reports 297). If it then considers the transfer of care to the parent to be inconsistent with that welfare, it may either pass a parental rights resolution (see paragraph 38 below) or apply to make the child a ward of court (see paragraphs 42-44 below).

(b) Parental rights resolution

38.  If it appears to a local authority in relation to any child who is in its care under section 1 of the 1948 Act [2 of the 1980 Act] that, inter alia, a parent of his is unfit to have the care of the child on account, notably, of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent, the local authority may resolve that there vest in it the parental rights and duties with respect to that child (section 2(1) [3(1)]). The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property, including "a right of access" but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders (section 2(11) of the 1948 Act [3(10) of the 1980 Act] and section 85(1) of the Children Act 1975).

Before passing a parental rights resolution, the local authority must consider a report from its Social Services Department on the desirability of assuming parental rights, which report should contain all the material necessary for the proper exercise of the authority’s discretion. In deciding the matter, the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account.

(c) Objections to parental rights resolutions

39.  If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known, he must be served with notice of it, indicating his right to object by counter-notice within one month (section 2(2) and (3) of the 1948 Act) [3(2) and (3) of the 1980 Act]). If such objection is made, the resolution lapses on the expiry of 14 days from service of the counter-notice (section 2(4) [3(4)]). However, within that period, the local authority may "complain" to a juvenile court, in which event the resolution will not lapse until the complaint is determined; on hearing the complaint, the court may order that the resolution is not to lapse, provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child’s interest (section 2(5) [3(5) and (6)]).

(d) Termination or discharge of parental rights resolutions

40.  A parental rights resolution continues in force until the child attains the age of 18, unless it is previously rescinded by the local authority or terminated by a juvenile court (section 4 of the 1948 Act [5 of the 1980 Act]).

The parent concerned, even if he did not originally object to the parental rights resolution, may apply to a juvenile court for its discharge. The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child’s interests (section 4(3)(b) [5(4)(b)]). An application based on the original foundation for the resolution can, however, be entertained only if lodged within six months of its adoption (section 127 of the Magistrates’ Court Act 1980).

(e) Appeals concerning parental rights resolutions

41.  Under section 4A of the 1948 Act [6 of the 1980 Act], an appeal (by the parent or the local authority) lies to the Family Division of the High Court from the making by a juvenile court of an order confirming (under section 2(5) [3(6)]) or discharging (under section 4(3)(b) [5(4)(b)]) a parental rights resolution, or from a juvenile court’s refusal to make such an order. A further appeal lies to the Court of Appeal and, with leave, to the House of Lords.

4. Wardship

42.  The Family Division of the High Court has an inherent jurisdiction, independent of statutory provisions and deriving from the prerogative power of the Crown acting in its capacity as parens patriae, to make a child a ward of court.

43.  The effect of wardship is that custody, in a broad sense, of the child is vested in the court itself; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever, notably as regards the care and control of and access to the child and his education, religion or property. In making such orders, the court is required to treat the child’s welfare as the "first and paramount consideration" (Guardianship of Minors Act 1971, section 1). Unless terminated earlier by order of the court, the wardship continues until the child attains his majority.

Where there are exceptional circumstances making it impracticable or undesirable for the ward to be, or continue to be, under the care of his parents, the court may make an order committing him to the care of the local authority (Family Law Reform Act 1969, section 7(2)), subject to the power of the court to give directions (Matrimonial Causes Act 1973, section 43(5)(a)). In such circumstances, custody of the child remains with the court and it is for the court, and not the local authority, to take major decisions regarding the ward’s future; it retains, inter alia, jurisdiction to make orders for access to the child.

44.  Wardship proceedings may be instituted by anyone who can show an appropriate interest in the child’s welfare. An application for a wardship order has to be made by originating summons. The child becomes a ward immediately the summons is issued but the wardship automatically lapses after 21 days unless within that time an appointment is made for the hearing of the summons. This appointment is normally held before a registrar who, subject to an appeal to a judge, may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings.

A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child. From the judge’s order, an appeal lies to the Court of Appeal and thence, with leave, to the House of Lords.

The child may be represented in wardship proceedings by a guardian ad litem appointed by the court; this is usually the Official Solicitor, who is a full-time public employee entirely independent of the executive.

Under the Rules of the Supreme Court, it is possible to seek an order expediting the proceedings, notably if a party thereto is dilatory.

5. Decisions of a local authority relating to a child in its care and judicial review thereof

45.  The functions of a local authority in child-care matters are exercised and decisions are taken either by its Social Services Committee or by a sub-committee or an officer to whom powers have been delegated. At the time relevant to the present case, the practice varied from authority to authority, there being no precise requirements or guidance even of a non-statutory kind, and much depended on the nature or gravity of the decision to be taken. Whether the child is in its care by virtue of the 1948 [1980] or the 1969 Act, the local authority must give first consideration to the need to safeguard and promote the child’s welfare throughout his childhood, and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them, having regard to his age and understanding (section 59 of the Children Act 1975 [18(1) of the 1980 Act]).

Authorities’ decisions in this area are, in fact, often based on the outcome of case reviews or case conferences. The authority is under a statutory duty to review the case of each child in its care at six-monthly intervals (section 27(4) of the 1969 Act) and, as a matter of practice, the child’s position will in addition be regularly examined at case conferences. Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority’s Social Services Department, as well as by such other persons as health visitors, doctors and police officers.

46.  A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof, although he has no legal right to do so. His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority.

In the absence of legal proceedings, the parent cannot compel the local authority to produce or permit inspection of the minutes of its relevant meetings or reports produced thereat, although the authority has a discretion to allow such inspection. In proceedings for judicial review (but not in juvenile court proceedings), the court may order the pre-trial disclosure of such documents, but only after leave to institute the proceedings has been obtained (see paragraph 48 below); however, this would be a rare occurrence, the general rule being that the documents are privileged and not open to inspection.

47.  A parent whose child is in the care of a local authority is not automatically deprived of access to him. The continuation of access is, however, a matter within the discretionary power of the authority (per Lord Wilberforce in A v. Liverpool City Council [1981] 2 All England Law Reports 385). Thus, under English law, the question whether and to what extent a parent is to have access to his child who is in public care was, at the relevant time, within the competence of the local authority to decide, without any application to a court.

Both the 1948 [1980] Act and the 1969 Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable: the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time.

48.  The statutory remedies described in paragraphs 33-34 and 39-41 above, whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution, are directed to the order or resolution as such, there being, at the relevant time, no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child.

A decision of a local authority concerning access can, however, be challenged by way of an application for judicial review. Anyone who wishes to make such an application must first seek, normally within three months of the decision, the leave of the court. The circumstances where judicial review will lie may be briefly summarised as follows:

(a) the authority acted illegally, ultra vires or in bad faith;

(b) the authority failed to take into account relevant considerations, took account of irrelevant considerations or came to a decision to which no reasonable authority could have come (Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223);

(c) the authority failed to observe statutory procedural rules or to act fairly (see notably R v. The Bedfordshire County Council, ex parte C and R v. The Hertfordshire County Council, ex parte B, Times Law Reports, 19 August 1986).

The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision-making process itself, and the court will not act as a "court of appeal" from the body involved. Thus, where on a successful application for judicial review the court quashes an authority’s decision, it will normally remit the matter to the authority for reconsideration; it may, however, also direct the authority to reach a conclusion in accordance with the court’s findings (Rules of the Supreme Court, Order 53, rule 9(4)).

49.  In certain circumstances, the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former’s care. The general rule is that the prerogative power of the Crown is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation. In the leading case of A v. Liverpool City Council, the House of Lords examined the relationship between the wardship jurisdiction and the authorities’ statutory powers. Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions, notably on such matters as access to the child: the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise (except on judicial review principles; see paragraph 48 above) the exercise of discretion within the field committed to them by statute. Sometimes, however, the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court.

The foregoing limits on the High Court’s powers apply only where the wardship proceedings concern a child who is already in public care. If he is not, the High Court can examine fully such questions as access and make such order as it considers to be in his best interests.

6. Subsequent developments

50.  The inability of parents to approach the courts, save as explained above, where decisions are made by a local authority affecting access to their children led Parliament, in the Health and Social Services and Social Security Adjudications Act 1983, to modify the law on this point.

Under the new provisions - which came into force on 30 January 1984, that is after the events giving rise to the present case -, a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent. The latter then has a right to apply to a juvenile court for an access order, requiring the local authority to allow access subject to such conditions as the court may specify. Where an access order has been made, there is a right to apply for variation. An appeal against the juvenile court’s decision lies to the High Court. Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration.

This new remedy applies only to decisions refusing or terminating access; in all other cases, the nature and extent of access remain within the local authority’s discretion.

51.  In December 1983, the Government published a Code of Practice on Access to Children in Care. This document stresses the importance of involving the child’s natural parents in the local authority’s decision-making process in this area and of informing them fully and promptly as to the substance of decisions concerning access.

B. Adoption

52.  A court cannot make an adoption order in respect of a child unless, inter alia, it is satisfied that each parent freely and unconditionally agrees (Children Act 1975, section 12). However, such agreement may be dispensed with upon a number of grounds specified in that section, notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties. In reaching any decision relating to the adoption of a child, a court must have regard to all the circumstances, first consideration being given to the need to safeguard and promote his welfare throughout his childhood (Children Act 1975, section 3).

53.  Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of the High Court. On an application for leave, the court’s function is to consider whether the proposed adoption application is one that might reasonably succeed, the merits of the matter being examined subsequently, once leave has been granted and after compliance with the requirements concerning notices and reports.

PROCEEDINGS BEFORE THE COMMISSION

54.  W’s application (no. 9749/82) was lodged with the Commission on 18 January 1982. The applicant complained about the procedures applied in reaching the decisions to restrict and then terminate his access to S and about the remedies available to him in this connection; he alleged violations of Article 6 § 1, Article 8 and Article 13 (art. 6-1, art. 8, art. 13) of the Convention.

55.  On 17 November 1983, the Commission declared the application admissible.

In its report adopted on 15 October 1985 (Article 31) (art. 31), the Commission expressed the opinion that:

- there had been a violation of Article 6 § 1 (art. 6-1) during the time when the parental rights resolution affecting the applicant was in force in that he was denied access to court for the determination of his civil right of access to S (eleven votes to two, with one abstention);

- no separate issue arose under Article 6 § 1 (art. 6-1) in regard to the length of the wardship proceedings (thirteen votes to one);

- there had been violation of Article 8 (art. 8) in that the procedures which were applied in reaching the decisions to restrict and then terminate the applicant’s access to S did not respect his family life (thirteen votes to one);

- no separate issue arose under Article 13 (art. 13) (eight votes to six).

The full text of the Commission’s opinion and of the partly dissenting opinions contained in the report is reproduced as an annex to the present judgment.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

56.  At the hearings on 25-26 November 1986, the Government requested the Court to decide and declare:

"- first, that there has been no violation of Article 8 (art. 8) of the Convention in the case of any of the applicants;

- second, that there has been no violation of Article 6 § 1 (art. 6-1) of the Convention in the case of any of the applicants;

- third, that in the case of the applicants [O, W, B and R] no separate issue arises under Article 13 (art. 13), but that if it does there has been no breach of Article 13 (art. 13) either".

AS TO THE LAW

I.   SCOPE OF THE ISSUES BEFORE THE COURT

57.  The background to the instant case is constituted by certain judicial or local authority decisions regarding the applicant’s child S. The Court finds it important to emphasise at the outset that the present judgment is not concerned with the merits of those decisions; this issue was not raised by the applicant before the Commission and did not form part of the application which it declared admissible.

Since the Commission’s admissibility decision delimits the compass of the case brought before the Court (see, as the most recent authority, the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 23, § 48), the latter is not in the circumstances competent to examine or comment on the justification for such matters as the taking into public care or the adoption of the child or the restriction or termination of the applicant’s access to him.

II.  ALLEGED VIOLATION OF ARTICLE 8 (art. 8)

58.  The applicant alleged that he had been the victim of a violation of Article 8 (art. 8) of the Convention, which reads 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 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 violation was claimed to have arisen by reason of the procedures followed by the Authority in reaching its decisions to restrict and terminate the applicant’s access to S, of the absence of remedies against those decisions and of the length of certain related judicial proceedings.

These allegations were contested by the Government, but the Commission concluded that there had been a violation.

A. General principles

59.  The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care. It follows - and this was not contested by the Government - that the Authority’s decisions resulting from the procedures at issue amounted to interferences with the applicant’s right to respect for his family life.

60.  According to the Court’s established case-law:

(a) an interference with the right to respect for family life entails a violation of Article 8 (art. 8) unless it was "in accordance with the law", had an aim or aims that is or are legitimate under Article 8 § 2 (art. 8-2) and was "necessary in a democratic society" for the aforesaid aim or aims (see notably, mutatis mutandis, the Gillow judgment of 24 November 1986, Series A no. 109, p. 20, § 48);

(b) the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, inter alia, the Leander judgment of 26 March 1987, Series A no. 116, p. 25, § 58);

(c) although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective "respect" for family life (see, amongst other authorities, the above-mentioned Johnston and Others judgment, Series A no. 112, p. 25, § 55);

(d) in determining whether an interference is "necessary in a democratic society" or whether there has been breach of a positive obligation, the Court will take into account that a margin of appreciation is left to the Contracting States (see, for example, the above-mentioned Leander judgment, p. 25, § 59, and the above-mentioned Johnston and Others judgment, loc. cit.).

61.  The applicant did not assert that the Authority’s decisions were not "in accordance with the law" or lacked a legitimate aim. The material before the Court contains nothing to suggest that the first of these requirements, as interpreted in the Court’s case-law (see, for example, the Malone judgment of 2 August 1984, Series A no. 82, pp. 31-33, §§ 66-68), was not satisfied. Neither is there any evidence that the measures taken were not designed to achieve a legitimate purpose, namely the protection of health or of the rights and freedoms of others.

Debate centred on the question whether the procedures followed had respected the applicant’s family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as "necessary in a democratic society". The applicant and the Commission took the view that the procedures applicable to the determination of issues relating to family life had to be such as to show respect for family life; in particular, according to the Commission, parents normally had a right to be heard and to be fully informed in this connection, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2 (art. 8-2). The Government, as their principal plea, did not accept that such procedural matters were relevant to Article 8 (art. 8) or that the right to know or to be heard were elements in the protection afforded thereby.

62.  The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect.

On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible: thus, where a child has been taken away from his parents and placed with alternative carers, he may in the course of time establish with them new bonds which it might not be in his interests to disturb or interrupt by reversing a previous decision to restrict or terminate parental access to him. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences.

It is true that Article 8 (art. 8) contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority’s decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on the relevant considerations and is not one-sided and, hence, neither is nor appears to be arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8 (art. 8). Moreover, the Court observes that the English courts can examine, on an application for judicial review of a decision of a local authority, the question whether it has acted fairly in the exercise of a legal power (see paragraph 48 above).

63.  The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to secure that their views and interests are made known to and duly taken into account by the local authority and that they are able to exercise in due time any remedies available to them. In fact, the 1983 Code of Practice stresses the importance of involving parents in access decisions (see paragraph 51 above).

64.  There are three factors which have a bearing on the practicalities of the matter. Firstly, as the Commission pointed out, there will clearly be instances where the participation of the natural parents in the decision-making process either will not be possible or will not be meaningful - as, for example, where they cannot be traced or are under a physical or mental disability or where an emergency arises. Secondly, decisions in this area, whilst frequently taken in the light of case reviews or case conferences, may equally well evolve from a continuous process of monitoring on the part of the local authority’s officials. Thirdly, regular contacts between the social workers responsible and the parents often provide an appropriate channel for the communication of the latter’s views to the authority.

In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as "necessary" within the meaning of Article 8 (art. 8).

65.  Contrary to the Government’s submission, the Court considers that in conducting its review in the context of Article 8 (art. 8) it may also have regard to the length of the local authority’s decision-making process and of any related judicial proceedings. As the Commission has rightly pointed out, in cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing. And an effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere effluxion of time.

B. Application in the instant case of the foregoing principles

66.  The course of events concerning the applicant’s children is set out at paragraphs 8-23 above. For the present purposes, it may be summarised as follows.

(a) For most of the period between March and August 1979 S was, on his parents’ own initiative, in the voluntary care of the Authority and placed with short-term foster parents.

(b) On 16 August 1979, the Authority assumed parental rights in respect of S, but in September it reached agreement with the natural parents with a view to returning S to them in February 1980 if they overcame their domestic difficulties.

(c) In January or February 1980, the Authority came to the conclusion that its original plan to return S to his natural parents was unworkable because of deterioration in the family circumstances and decided that he should be placed with long-term foster parents with a view to adoption. This decision was approved by the Authority’s Adoption and Foster Care Committee on 31 March 1980.

(d) Until April 1980 the applicant and his wife had access to S, but the Authority then decided that such access be terminated. The child was placed for adoption in the following month.

(e) After May 1980, the applicant’s wife recovered to such an extent as to permit their two older children - in respect of whom the Authority had assumed parental rights in February 1980 - to be returned home on 1 August 1980, where they have remained ever since.

(f) Applications, made by the applicant and his wife in November 1980, for the discharge of the Authority’s parental rights resolutions in respect of S were granted by the juvenile court in January 1981. However, wardship proceedings instituted by the Authority immediately thereafter led to a High Court decision on 22 June 1981, confirmed by the Court of Appeal on 6 October 1981, that in S’s best interests and in view of the time that had elapsed he should remain with the foster parents with whom he had been placed in May 1980 and that the applicant and his wife should not have access to him.

(g) The child was adopted by the long-term foster parents in October 1984, the High Court having decided to dispense with the applicant’s consent.

67.  As regards the degree to which the applicant was involved in the taking of the relevant decisions of the Authority, the Court has noted the following.

(a) The Government did not deny that the applicant and his wife were not informed or consulted in advance about the proposal to adopt the parental rights resolutions of 16 August 1979 (see paragraph 10 above). Yet, since S had previously been in voluntary care, those resolutions altered the whole basis of the legal relationship between him, his parents and the Authority. However, the applicant did not object to the resolution affecting him, seemingly because, albeit after the event, he reached an agreement with the Authority that S would be returned home within a few months (ibid.).

(b) There is no evidence that the applicant and his wife were duly informed or consulted in advance concerning the decision to place S with long-term foster parents with a view to adoption or its subsequent approval by the Authority’s Adoption and Foster Care Committee; furthermore, although the initial decision was taken in January or February 1980, they were not advised of it until the end of March 1980, and even then its full implications may not have been brought home to them (see paragraphs 14 and 15 above). On the other hand, there may well have been some discussion between them and the social workers about the possibility of placement with long-term foster parents, since on 31 March 1980 the social workers told the above-mentioned Committee that the parents disagreed with it (see paragraph 15 above); to this extent, therefore, their views were before the Authority, at least at that point of time. The applicant’s wife had also been warned as early as 22 January 1980 of the possibility that S might be placed in long-term care; however, the warning apparently did not refer to the prospect of adoption, was given when S’s return home was still envisaged and was not repeated at subsequent meetings between the parents and the social workers on 31 January and 14 February 1980 (see paragraphs 12 and 14 above).

(c) Finally, the Government did not deny that the applicant and his wife were not in any way consulted in advance regarding the decision of April 1980 to terminate their access to S (see paragraph 16 above). Nor apparently were they advised of that decision until the following month. This absence of involvement is all the more striking because the decision does not appear reconcilable with the Adoption and Foster Care Committee’s view that access should be restricted but not terminated (see paragraph 15 above).

68.  The foregoing reveals, in the opinion of the Court, an insufficient involvement of the applicant in the Authority’s decision-making process. The decisions of January or February 1980 and of April 1980 were crucial for the future of S, who was then not more than one and a half years old and whose placement with long-term foster parents and subsequent lack of contact with his natural parents were critical stages on the road to his adoption. They were thus patently decisions in which the applicant should have been closely involved if he was to be afforded the requisite consideration of his views and protection of his interests (see paragraph 63 above).

It is true that at the relevant time the condition of the applicant’s wife still gave cause for concern. However, the Court discerns no reason - and none has been advanced by the Government - for not involving the applicant himself more closely. Indeed, "the failure to put the parents properly in the picture before firm decisions were taken" by the Authority was the main foundation for the Local Ombudsman’s finding of maladministration (see paragraph 22 above).

69.  The Commission also took account, in the context of Article 8 (art. 8), of the duration of the wardship proceedings (16 January to 22 June 1981 at first instance and then to 6 October 1981 on appeal). The Court considers that this is a relevant, though subsidiary, factor. It notes, in this connection, the view of the High Court that it was "extremely unfortunate" that the case was not heard within a week or so after 16 January, thereby increasing by some four months the period during which relations had been developing between S and his foster parents (see paragraph 20 above). Whilst it is true that the applicant appears to have taken no steps to expedite the matter, a considerable part of the delay was due to the fact that the Authority instituted concurrently both appeal and wardship proceedings and did not elect between them until 25 March 1981 (see paragraph 19 above).

70.  The Court thus concludes that, in the circumstances and notwithstanding the United Kingdom’s margin of appreciation in this area, there has been a violation of Article 8 (art. 8).

In view of this conclusion, the Court does not find it necessary to examine in this context the question of the remedies available to the applicant.

III.  ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)

71.  The applicant alleged that he had been the victim of a violation of Article 6 § 1 (art. 6-1) of the Convention, which, so far as is relevant, reads:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."

This violation was claimed to have arisen on two grounds:

(a) the applicant had been unable, during the currency of the parental rights resolution affecting him, to have the question of his access to his child S determined in proceedings that complied with this Article (art. 6-1); and

(b) the subsequent wardship proceedings in respect of S (see paragraphs 19-21 above) had not been concluded within a "reasonable time".

The Government contested these submissions; the Commission accepted the first but did not find it necessary to examine the second.

A. Applicability of Article 6 § 1 (art. 6-1)

72.  The Government maintained as their principal plea that Article 6 § 1 (art. 6-1) was not applicable in the present case, since no "right" was in issue. In support of this proposition, they advanced the following arguments.

(a) The concept of a "civil right" within the meaning of Article 6 § 1 (art. 6-1) was admittedly an autonomous one. However, that Article (art. 6-1) had no application unless the matter at issue constituted a legal right in the context of domestic law, to which it was therefore necessary to have regard.

(b) The notion of parental "rights" over children was outmoded; furthermore, according to dicta of English judges, the so-called "right" of access by a parent to his child was preferably described as a right in the child.

(c) In any event, the said right was a "rhetorical" and not a legal one.

(d) Even if there were such a parental right at the outset, it ceased to have a separate existence on the making of a care order or the passing of a parental rights resolution: the effect of these measures was to transfer to the local authority, subject to limited exceptions, all the rights, powers and duties of the parent with respect to the child. The mere possibility or expectation that the authority might, in its discretion, subsequently allow the parent to have access to the child did not constitute a "right".

73.  It is true that Article 6 § 1 (art. 6-1) extends only to "contestations" (disputes) over (civil) "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law; it does not in itself guarantee any particular content for (civil) "rights and obligations" in the substantive law of the Contracting States (see, amongst other authorities, the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 70, § 192).

The Court is not, however, persuaded by the Government’s argument that no "right" of the aforementioned kind was at issue in the present case.

74.  Underlying the Government’s description of the notion of parental rights as outmoded was the view that those rights are derived from parental duties and responsibilities and exist only so long as they are needed for the protection of the person or the property of the child. The main thrust of this view seems to be not to deny the existence of parental rights but rather to stress that they are not absolute and may be overridden if not exercised in accordance with the welfare of the child; indeed, the 1948 Act and the 1980 Act both refer expressly to parental "rights" and the Children Act 1975 even mentions specifically a parental "right of access" (see paragraph 38 above). Again, when the English courts spoke of access as being a right in the child, they appear not to have been asserting the absence of any parental right of access whatsoever, but to have been expressing the principle that in the event of a conflict between concurrent rights of parent and child it is the welfare of the child which should be treated as the paramount consideration.

75.  In the normal and natural course parent and child will live together and no problem will arise as regards the parental right of access. It is on the occurrence of some event that disturbs the ordinary pattern of family life by separating them - for example, matrimonial proceedings or the taking of a child into public care - that parental entitlement to access will become an issue in practice. It is therefore more important to focus on the position that obtains in English law in this respect once the relevant legislation has been brought into play.

76.  The raison d’être of the legislation concerning the taking of a child into public care is that, having regard to the background circumstances, the interests of the child may require that the local authority shall have parental powers for certain purposes. This result is achieved either by the making of a care order committing the child to the care of the local authority, in which event it will have nearly all the same powers and duties with respect to the child as his parent would have apart from the order, or by the adoption of a parental rights resolution, in which event there will vest in the authority nearly all the rights and duties which by law the parent has in relation to the child (see paragraphs 31 and 38 above).

It is true that, in the case of a parental rights resolution, the rights which vest in the authority are specifically stated to include "a right of access" (see paragraph 38 above), but neither for that measure nor for a care order does the legislation stipulate in terms that there shall thenceforth be no contact between parent and child. The position in English law is that the taking of a child into public care by one of these means does not automatically deprive the parent of access to him; its effect is that the continuation of access becomes a matter within the discretionary power of the local authority (see paragraph 47 above).

77.  The existence of a power on the part of the authority to decide to allow only restricted or even no visits to the child by his parent does not, in the Court’s understanding, necessarily mean that there is no longer any parental right in regard to access once one of the measures in question has been taken.

As the Government accepted, the statutes clearly recognise the continuation of parental access as generally desirable (see paragraph 47 above). Moreover, the Code of Practice on Access to Children in Care issued in December 1983 (see paragraph 51 above) expressly acknowledges that for most children there will be no doubt that their interests will best be served by efforts to sustain links with their natural families. It would be inconsistent with this aim if the making of a care order or the adoption of a parental rights resolution were automatically to divest a natural parent of all further rights and duties in regard to access.

The effect of these measures is not to extinguish all rights and responsibilities of the natural parent in respect of the child. Thus, for example, subject to the power of the court - and not the local authority - to dispense with his consent, he retains the right to agree or refuse to agree to the child’s adoption (see paragraphs 31, 38 and 52 above). Again, and even more importantly for the present purposes, he enjoys a continuing right to apply to the courts for the discharge of the order or resolution on the ground that such a course is in the child’s interests (see paragraphs 33 and 40 above). The issue for determination in such proceedings is the restoration of parental rights in regard to custody and control of the child. It would appear to the Court that the determination of a parental right is equally in issue where, during the currency of the order or resolution, a parent claims that the continuance or renewal of access is in the child’s interests. That this is so is now confirmed by the provisions of Part IA of the 1980 Act, inserted by the Health and Social Services and Social Security Adjudications Act 1983 (see paragraph 50 above), which are founded on the existence of just such a right on behalf of the parent.

Moreover, the extinction of all parental right in regard to access would scarcely be compatible with fundamental notions of family life and the family ties which Article 8 (art. 8) of the Convention is designed to protect (see, amongst other authorities, the Marckx judgment of 13 June 1979, Series A no. 31, p. 21, § 45).

The Court thus concludes that it can be said, at least on arguable grounds, that even after the adoption of the parental rights resolution affecting him the applicant could claim a right in regard to his access to S.

78.  According to the Court’s established case-law, Article 6 § 1 (art. 6-1) will not be applicable unless two further conditions are satisfied: the right at issue must have been the object of a "contestation" (dispute) and must be "civil".

That there was a dispute between the applicant and the Authority on the access question is clear and, indeed, this was not denied by the Government. They also accepted that if there was a parental "right" of access, it was a "civil" right. Since access forms an integral part of family life, the Court entertains no doubts on this latter point.

79.  Article 6 § 1 (art. 6-1) is therefore applicable in the present case.

In reaching this conclusion, the Court has not been unmindful of the arguments advanced by the Government in favour of leaving discretion as to access to the local authority rather than to the courts, such as the large number of children in public care and the need to take decisions urgently and without delay, through specialised social workers and as part of a continuous process. On the other hand, this is an area in which it is essential to ensure that the rights of individual parents are protected in accordance with Article 6 § 1 (art. 6-1). Furthermore, Article 6 § 1 (art. 6-1) does not require that all access decisions must be taken by the courts but only that they shall have power to determine any substantial disputes that may arise.

B. Compliance with Article 6 § 1 (art. 6-1)

1. Entitlement to a hearing by a tribunal

80.  The Government pleaded in the alternative that even if the applicant had retained some residual right of access, he enjoyed in domestic law judicial protection of that right of a kind which satisfied the requirements of Article 6 § 1 (art. 6-1). They referred in this connection to the possibility of challenging the parental rights resolution, of applying for judicial review or of instituting wardship proceedings. The applicant contended - and the Commission concluded - that in none of these proceedings would the scope of the court’s review be such that those requirements were met.

81.  It is open to a parent to challenge a parental rights resolution, either by entering an objection, or by lodging a subsequent appeal, or by applying for its discharge at a later date (see paragraphs 39-41 above).

It is true that a successful challenge would resolve the access issue indirectly, and in fact proceedings to discharge the resolutions were successfully taken in the instant case (see paragraph 18 above). However, as the Government accepted, proceedings of this kind are directed to the parental rights resolution as such and not to the isolated issue of access (see paragraph 48 above). Yet whether a child should be in public care and whether his parent should have access to him are matters to which different considerations may well apply. Again, the parent may have no desire to challenge the resolution, being content for the time being at least to see his contacts with his child maintained. Yet again, he may be able to adduce reasons warranting a continuation or restoration of access but not of his care of the child. Furthermore, a challenge of the resolution by the parent may prompt, on the part of the local authority, opposition which would not be forthcoming if the proceedings were confined to the access issue. If proceedings relating to access alone had been available to the applicant, he might have had recourse to them at a date earlier than that on which he actually instituted proceedings to challenge the resolution or with less opposition on the part of the Authority and thereby changed the whole future complexion of his relationship with S.

82.  An application for judicial review or the institution of wardship proceedings does enable the English courts to examine a local authority’s decision in the matter of access by a parent to his child who is in public care. These two remedies provide valuable safeguards against exercise by the authority of its discretion in an improper manner.

Nevertheless, on an application for judicial review, the courts will not review the merits of the decision but will confine themselves to ensuring, in brief, that the authority did not act illegally, unreasonably or unfairly (see paragraph 48 above). Where a care order or a parental rights resolution is in force, the scope of the review effected in the context of wardship proceedings will normally be similarly confined (see paragraph 49 above).

In a case of the present kind, however, there will in the Court’s opinion be no possibility of a "determination" in accordance with the requirements of Article 6 § 1 (art. 6-1) of the parent’s right in regard to access, as analysed in paragraph 77 above, unless he or she can have the local authority’s decision reviewed by a tribunal having jurisdiction to examine the merits of the matter. And it does not appear from the material supplied by the Government or otherwise available to the Court that the powers of the English courts were of sufficient scope to satisfy fully this requirement during the currency of the parental rights resolution.

83.  There was accordingly a violation of Article 6 § 1 (art. 6-1).

2. Reasonableness of the length of the wardship proceedings

84.  Since it took the length of the wardship proceedings into account under Article 8 (art. 8) (see paragraph 69 above), the Court, like the Commission, finds that it is not necessary to examine this issue separately under Article 6 § 1 (art. 6-1).

IV.  ALLEGED VIOLATION OF ARTICLE 13 (art. 13)

85.  The applicant alleged that no effective remedies were available to him in the matter of access to his child S and that he had on that account been a victim of a violation of Article 13 (art. 13) of the Convention, which reads as follows:

"Everyone whose rights and freedoms as set forth in [the] 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 Commission expressed the opinion that no separate issue arose under Article 13 (art. 13). The Government agreed, but submitted in the alternative that effective remedies were available.

86.  Having regard to its decision on Article 6 § 1 (art. 6-1), the Court considers that it is not necessary to examine the case under Article 13 (art. 13); this is because its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (art. 6-1) (see, notably, the Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 32, § 88).

V.   APPLICATION OF ARTICLE 50 (art. 50)

87.  Article 50 (art. 50) of the Convention reads as follows:

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

88.  The applicant sought just satisfaction under this provision, but has not yet fully quantified his claim. At the Court’s hearings on 25-26 November 1986, the Government reserved their position on this issue.

Since the question of the application of Article 50 (art. 50) is therefore not yet ready for decision, it is necessary to reserve the matter and to fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicant (Rule 53 §§ 1 and 4 of the Rules of Court).

FOR THESE REASONS, THE COURT

1. Holds unanimously that there has been a violation of Article 8 (art. 8) of the Convention;

 

2. Holds unanimously that Article 6 § 1 (art. 6-1) is applicable in the present case;

 

3. Holds unanimously that Article 6 § 1 (art. 6-1) was violated during the currency of the parental rights resolution;

 

4. Holds by fourteen votes to three that it is not necessary to decide whether the duration of the subsequent wardship proceedings gave rise to a further violation of the same Article (art. 6-1);

 

5. Holds unanimously that it is not necessary also to examine the case under Article 13 (art. 13);

 

6. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision;

accordingly,

(a) reserves the whole of the said question;

(b) invites:

(i) the applicant to submit, within the forthcoming two months, full written particulars of his claim for just satisfaction;

(ii) the Government to submit, within two months of receipt of those particulars, their written comments thereon and, in particular, to notify the Court of any agreement reached between them and the applicant;

(c) reserves the further procedure and delegates to the President of the Court power to fix the same if need be.

 

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 July 1987.

 

Rolv RYSSDAL

President

 

For the Registrar

Jonathan L. SHARPE

Head of Division in the registry of the Court

 

In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the following separate opinions are annexed to the present judgment:

- joint opinion of Mr. Lagergren, Mr. Pinheiro Farinha, Mr. Pettiti, Mr. Macdonald, Mr. De Meyer and Mr. Valticos;

- joint opinion of Mr. Pinheiro Farinha, Mr. Pettiti, Mr. De Meyer and Mr. Valticos;

- joint opinion of Mr. Pinheiro Farinha and Mr. De Meyer;

- partly concurring and partly dissenting opinion of Mr. Gersing;

- individual opinion of Mr. De Meyer.

 

R.R.

J.L.S.

 

JOINT SEPARATE OPINION OF JUDGES LAGERGREN, PINHEIRO FARINHA, PETTITI, MACDONALD, DE MEYER AND VALTICOS

As far as Article 6 § 1 (art. 6-1) of the Convention is concerned, we feel that the Court should not have repeated once again that this provision "extends only to ‘contestations’ (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law"[1].

This dictum is unnecessarily restrictive and might have the result of emptying of all content what the Court has previously said about the "autonomous" interpretation of the notion of "civil rights and obligations". In our view, it is self-evident that, merely by deciding not or no longer to recognise a certain right, a State cannot avoid, as regards that right, the application of the principles enshrined in Article 6 § 1 (art. 6-1)[2].

 

JOINT SEPARATE OPINION OF JUDGES PINHEIRO FARINHA, PETTITI, DE MEYER AND VALTICOS

I.   As far as Article 6 § 1 (art. 6-1) of the Convention is concerned, the important thing, in the present case, was simply to state that the applicant was invoking rights essentially inherent in the position of a father or a mother.

II.  As far as Article 8 (art. 8) of the Convention is concerned, the Court might have stated more explicitly:

(1) that, at every stage of a procedure concerning their parental rights, and in particular access to their children, a father and a mother have the right to be effectively consulted, heard and informed, and to have their observations duly taken into account;

(2) that that right may not be disregarded on account of the "practicalities of the matter" and their requirements, and may be the subject of derogation only when its exercise is really impossible.

 

JOINT SEPARATE OPINION OF JUDGES PINHEIRO FARINHA AND DE MEYER

I.   Having found that Article 8 (art. 8) of the Convention was violated in the applicant’s case since he was not sufficiently involved in the taking of the local authority’s decisions[3] and on account of the length of the judicial proceedings[4], the Court did not find it necessary also to consider under that Article (art. 8) the question of the remedies available to the applicant[5].

Again, the Court found that there was, in the applicant’s case, a violation of the entitlement to a hearing by a tribunal within the meaning of Article 6 § 1 (art. 6-1) of the Convention[6], but did not find that it was necessary also to consider under that provision the length of the judicial proceedings, since it had already taken that matter into account under Article 8 (art. 8)[7].

We feel that a finding that a provision of the Convention has been violated in one particular respect does not dispense the Court from examining whether that provision has also been violated in some other respect. We also feel that a finding that a certain fact amounts to a violation of one particular provision of the Convention does not dispense the Court from examining whether that fact also amounts to a violation of some other provision of the Convention.

In the present case, it was, in our view, necessary to examine each of the questions mentioned in paragraph 58 and paragraph 71 of the judgment: since each of them, with the possible exception of the one concerning the procedures followed by the local authority, fell within the ambit of both Article 6 § 1 and Article 8 (art. 6-1, art. 8), it was necessary to examine all of them, perhaps with that single exception, under each of these provisions.

II.  As regards cases like the applicant’s, the judgment may, particularly in paragraph 79, give the impression of leaving too much discretion to the local authorities and of not making their decisions sufficiently subject to judicial review.

In our view, the courts should have power to determine any disputes that may arise in this field.

III.  It was only with some hesitation that we concurred in the decision that it was not necessary to examine the case under Article 13 (art. 13) of the Convention[8].

We are not quite sure that such examination was made superfluous by the finding of a violation, in the case of the applicant, of the entitlement to a hearing by a tribunal within the meaning of Article 6 § 1 (art. 6-1)[9].

Are the "less strict" requirements of Article 13 (art. 13) truly "absorbed" by those of Article 6 § 1 (art. 6-1)[10]? Do these provisions really "overlap"[11]?

It appears to us that the relationship between the right to be heard by a tribunal, within the meaning of Article 6 § 1 (art. 6-1), and the right to an effective remedy before a national authority, within the meaning of Article 13 (art. 13), should be considered more thoroughly.

 

PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE GERSING

In my view, the length of the wardship proceedings falls to be considered only under Article 6 § 1 (art. 6-1), which in this respect is the lex specialis. I cannot accept the extensive interpretation of Article 8 (art. 8) which the majority of the Court has applied as regards those proceedings in paragraphs 65 and 69 of the judgment.

The wardship proceedings were instituted on 16 January 1981 and judgment was given at first instance on 22 June 1981. The High Court judge found it "extremely unfortunate" that the proceedings were not heard within a very short period. Taking into account the serious consequences which a delay of five months at this stage might - and in fact did - have for the applicant, I find that in these special circumstances, of which the court was aware, the duration of the first-instance proceedings entailed a violation of Article 6 § 1 (art. 6-1). The appeal was dismissed on 6 October 1981 and that lapse of time cannot in itself give rise to criticism.

 

INDIVIDUAL SEPARATE OPINION OF JUDGE DE MEYER

At paragraph 57 of the judgment it is stated that "Since the Commission’s admissibility decision delimits the compass of the case brought before the Court ..., the latter is not in the circumstances competent to examine or comment on the justification for such matters as the taking into public care or the adoption of the child or the restriction or termination of the applicant’s access to him".

I have very serious doubts as to that statement.

I feel rather that once a "case" is referred to the Court in accordance with Articles 44, 45, 47 and 48 (art. 44, art. 45, art. 47, art. 48) of the Convention, the Court’s jurisdiction extends to all questions of fact and of law arising in the case concerned. This appears already to have been recognised in the judgment in the De Wilde, Ooms and Versyp cases[12].

Moreover, since within the Council of Europe the protection of human rights and fundamental freedoms concerns ordre public, I believe that, as the Court decided in the same judgment, "a scrupulous supervision by the organs of the Convention of all measures capable of violating the rights and freedoms which it guarantees is necessary in every case"[13].

I regret that the Court appears to deviate from this course.

 

[*] Note by the Registrar: The case is numbered 4/1986/102/150.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[1] § 73 of the judgment.

[2] See the concurring opinion of Judge Lagergren annexed to the Ashingdane judgment of 28 May 1985, Series A no. 93, p. 27, and his separate opinion, joined by Judge Macdonald, annexed to the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 80.  See      also, mutatis mutandis, the Golder judgment of 21 February 1975, Series A no. 18, pp. 16-18, §§ 34-36, and the Öztürk judgment of 21 February 1984, Series A no. 73, pp. 17-18, § 49.

[3] §§ 66-68 of the judgment.

[4] § 69 of the judgment.

[5] § 70 of the judgment.

[6] §§ 80-83 of the judgment.

[7] § 84 of the judgment and point 4 of the operative provisions.

[8] § 86 of the judgment and point 5 of the operative provisions.

[9] §§ 80-83 of the judgment and point 3 of the operative provisions.

[10] § 86 of the judgment.

[11] Airey judgment of 9 October 1979, Series A no. 32, p. 18, § 35.

[12] Judgment of 18 June 1971, Series A no. 12, pp. 29-30, §§ 47-52: see especially § 49.

[13] Ibid., p. 36, § 65.

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