AS TO THE ADMISSIBILITY OF
Application No. 32788/96
by Robert CRABTREE
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 May 1996 by
Robert CRABTREE against the United Kingdom and registered on 27 August
1996 under file No. 32788/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1957 and resident in
Bristol, England. Before the Commission he is represented by Brian Cox,
a solicitor practising in Bristol. The facts as submitted by the
applicant may be summarised as follows.
A. Particular circumstances of the case
The applicant is a single man who was appointed as a foster carer
by the Avon County Council in 1988. The applicant was entrusted with
the long term care of between two and three teenage persons at any one
time and although his methods were unorthodox, by all accounts he
proved successful as a foster carer, in particular with young persons
who had proved very disruptive.
In February 1991, the applicant was favourably reviewed by the
County Council as part of the review process of all persons appearing
on the foster carer register. Later that year, the applicant became
aware that one of the teenage children in his care had taken an
interest in pornography and had videotaped a sex orientated film. In
order to deal with the situation the applicant discussed the video with
the young person and also discussed with him a pornographic magazine
in order to put such matters into proportion to life generally.
However, in October 1991 the social services department received a
report which expressed concern that a child placed with the applicant
had been shown a pornographic video and magazine. At the request of
Mrs B., the newly appointed service manager, the matter was
investigated and the results were presented to a meeting of the
fostering panel of which she was chairperson on 26 November 1991.
Following this meeting, Mrs B. wrote to the applicant telling him
that although the panel had received a clear account of his reasons for
allowing the video to be shown it was concerned that he did not appear
to accept that his behaviour was inappropriate. Mrs B. also informed
the applicant as to the conclusions of the panel, namely that
(a) the care and commitment which he offered to children in his care
was highly valued by the social services department;
(b) that registration for the children in his care be continued, but
decisions as to further placements be deferred and...
(d) that he be informed within 5 days of a plan of how the social
services department intends to proceed.
According to the applicant, he was asked to undertake a programme
of work with the National Society for the Prevention of Cruelty to
Children (NSPCC) but when no specific reason was given for this
request, he feared a hidden agenda and was reluctant to agree. The
programme did not go ahead. From February 1992 onwards the applicant
alleges that criticisms were made and problems created for him by
support workers and in particular the support worker who had been
assigned to work with him, but had no experience in dealing with young
persons in the setting of a foster carer's home.
By letter of 30 April 1992, the applicant was informed of the
foster panel's regret at his decision to withdraw from the programme
with the NSPCC. He was informed that the work was to address the
following specific areas:
"Issues around sexuality, sex education and gender issues.
The issue of your vulnerability as a single male foster
carer. To assess the damage to your relationship with the
social services department and how trust might be rebuilt."
However, given that this work remained undone, the panel informed
the applicant that it was not in a position to make any decision
regarding his future registration as a foster carer.
The applicant requested a change of support worker on 15 April
1992 and also stated that he did not want that support worker to attend
the review meeting, which was due to take place in accordance with his
statutory review on 18 May 1992. The applicant believed that the
service manager, Mrs B. and her support workers had difficulty with the
applicant's methodology and that they were undermining the value of his
work with the foster children in his care. The applicant lodged formal
complaints against the Family Placement Team on 1 July and 14 July
1992, some of which were investigated by a Mrs W., service manager, who
upheld them.
On 30 June 1992 the applicant submits that he met with the team
manager of his social worker, Mr R., to discuss the matters in dispute
and to complete the statutory review which had commenced in May 1992.
Mr R. agreed to change the support worker in the light of the
applicant's concerns.
Recognising that relations between the Family Placement Team and
the applicant had deteriorated considerably, the Assistant Director of
the Department of Social Services of the Avon County Council, convened
a meeting on 9 October 1992. This meeting was attended by eight people
including Mr R., area regional manager for the area, Mr Rg., the team
manager of the family placement team and Miss L., a family placement
team social worker. At the meeting concern was expressed about the
applicant's attitude towards the department and the relationship
between them had broken down. It was decided that a meeting of the
fostering panel should be arranged urgently to review the applicant's
registration as a foster carer and that a recommendation should be made
to the panel that he be deregistered. The applicant submits that he was
unaware of this meeting and the matters which were discussed.
Furthermore, he was told that a unanimous decision was taken at that
meeting that he posed an unacceptable level of risk, that he should be
removed as a foster carer and that there should be a formal meeting of
the fostering panel to make the final decision.
On 12 October 1992 the applicant was invited to a meeting of the
fostering panel due to take place on 14 October. The social worker
offered to deliver the relevant papers for the meeting to him so that
she could discuss them with him. However, the applicant recalls that
he simply received the documents the day before the meeting, which gave
him insufficient time to consider the matters or to gather any evidence
which would rebut the suggestions made and the decision to deregister
him as a foster carer.
The special meeting of the fostering panel took place at 2.30 pm
on 14 October 1992. In the absence of Mrs B., whose presence was
considered inappropriate in the light of the complaints made against
her by the applicant, it was chaired by Mr R. The other panel members
were Mr Rg, Miss B. and Miss W., team managers in the department. The
applicant had already submitted complaints against Mr R., Mr Rg and
Miss W. The meeting was also attended by Miss L. and Mr M. against whom
the applicant had also lodged complaints. The applicant was accompanied
by Mrs M., chair of the Avon Family Placement Association whose role
was that of an advocate/moral supporter to the applicant. The purpose
of the meeting was to consider the applicant's statutory review and
other matters of concern relating to his registration as a foster
carer. It was also intended to consider the recommendation received
from the meeting of 9 October 1992 that the applicant be deregistered.
The applicant was invited to join the meeting at 2.45 pm and he
immediately objected to the presence of those persons against whom he
had made complaints. When the chairperson, Mr R., decided to proceed
notwithstanding the objections the applicant was asked to present his
case which he did until 4 pm at which time he was asked to leave. Not
having completed his submissions he left the meeting under protest. The
fostering panel continued with its deliberations (Miss L. and Mr M. who
were not members of the fostering panel also participated) and
following a reminder from Mr R. that
"whatever the decision it had to be based on what was
reasonable given all the factors presented in the reports
and that the welfare of the children and young people was
of paramount consideration,"
the panel took the decision to deregister the applicant. The reasons
given for this decision were the applicant's inability to work in
partnership with Avon social services department, in particular with
relation to agreed care plans for some of the young people placed with
him and concerns about aspects of the applicant's approach to the care
of young people.
In January 1993 the applicant instituted proceedings for judicial
review seeking an order that the decision to remove him as a foster
carer should be quashed on grounds, inter alia, that there had been a
breach of natural justice in that the panel included persons against
whom he had made complaint and that he had insufficient time to prepare
and present his case. Following a hearing in March 1993, at which the
applicant was represented by counsel, Thorpe J noted that
"although at first sight the procedure appears something
less than fair, it is very important to realise that the
panel assembled ... was not a panel hand-picked for a
specific task. The fostering panel is a panel that
discharges its necessary responsibilities by regular
meetings in relation to all registered carers."
The judge noted that the only exceptional member of the panel was
Mr R., the chairperson, who was there as Mrs B.'s senior. The judge
also considered it necessary to look at the reality of the situation
(in particular that the relationship between the applicant and the
department had been deteriorating rapidly for six months, that the
relevant reports had been available to the applicant and he was able
to put his own views to the panel) and the judge finally concluded that
the rules of natural justice were not breached to a degree that would
justify the court's intervention.
In a judgment of 15 November 1996, delivered by Lord Justice
Neill, the Court of Appeal admitted that at first sight the procedure
which was adopted appeared less than fair but that regard had to be had
to the context, in particular, the nature of the decision-making body
in question and the nature of its task. In this regard, it was noted
that decisions of administrative bodies have to be taken by those with
knowledge of the facts and that members of those bodies may, because
of previous knowledge, have a predisposition towards a certain result.
However, the court did not find that this meant that such a body could
not reach a fair decision. Referring to the facts, the Court did not
find that the decision reached on 14 October amounted to an uncritical
acceptance of the recommendation made following the meeting on
9 October. Furthermore, the Court concluded that the question of the
applicant's continuing registration as a foster carer was considered
by the panel with some care and at length at the meeting on 14 October
1992, given their duty to place the interests of the children in their
care at the forefront of their deliberations. It was noted that the
difficulties between the applicant and the social services department
were serious and getting worse and that given the complaints made by
the applicant, it would have been unrealistic to have expected the
council to have set up a fresh body to consider his annual review. The
Court noted that the panel took the exceptional course of inviting the
applicant to attend the meeting and that he had the benefit of an
advocate/moral supporter. In conclusion the Court found that
"in the circumstances of the case the panel as constituted
under the chairmanship of Mr R., the general manager for
the area, was not an unfair body to adjudicate."
Furthermore, the Court did not find that the presence of Miss L.
and Mr M. was unfair given that they had been asked to work with the
applicant in the Summer of 1992 to look at some of the areas of
concern. Those who attended the fostering panel were those who had been
most closely involved with the applicant and who could best decide
whether or not he could remain as a carer. As regarded the complaints
of lack of time, the Court noted that the applicant was well aware of
the difficulties which had arisen over the previous year, he had the
reports and a considerable number of matters were canvassed in his
presence. Accordingly the appeal was dismissed.
B. Relevant Domestic Law
The Foster Placement (Children) Regulations 1991 came into force
on 3 April 1991 pursuant to the Children Act 1989. Under
regulation 4(1) the approving authority is required to review at
intervals of not more than one year the suitability of the foster carer
and his household. On conclusion of this review, under regulation 4(3)
the approving authority must prepare a report and and give notice to
the foster-parent of its decision. Under regulation 4(4) where on
review the approving authority is no longer satisfied that the foster-
parent and his household are suitable, it may terminate the approval
from a date to be specified in the notice given under reg. 4(3).
COMPLAINTS
1. The applicant complains that the decisions of the fostering panel
on 9 October 1992 and 15 October 1992 are in breach of Article 6
para. 1 of the Convention in that:
(a) that the principal decision to remove the applicant as a foster
carer was made on 9 October 1992 at a meeting attended by persons who
could not make a fair and reasoned judgment as they were persons in
dispute with the applicant and were sitting in judgment of the
complaints raised against them;
(b) that the applicant was unaware of the meeting of 9 October 1992,
was not given the opportunity to present argument or evidence to the
panel and in consequence that there was no fair hearing in respect of
a matter which has affected the applicant's livelihood;
(c) that the persons sitting in judgment at the meeting on 14 October
1992 were those who were in dispute with the applicant and in
consequence prejudiced and unable to make a fair judgment;
(d) that the applicant was not given full proper advance notice of
the matters being raised against him and was given little time to
obtain evidence to prepare for the hearing;
(e) that the applicant was excluded from parts of the meeting which
were addressed by those presenting against him, namely Mr M. and
Miss L., and those persons were given the opportunity to address the
panel prior to the applicant's admission to the meeting and remained
present whilst the panel made their final decisions;
(f) that the applicant was not given full or sufficient time to
present arguments to the panel and that the panel was unaware of the
full extent of his comments on very detailed and complicated papers
which had been presented to the panel by themselves and upon which
their decision was presumably made;
(g) that the applicant was never given the opportunity to examine
witnesses;
(h) that the social services fostering panel and social workers
having advised the applicant to lodge complaints acted unreasonably and
unfairly in considering those complaints and have used those matters
unjustly and in breach of the spirit of the complaint procedure to
justify their decision to remove him as a foster carer and took no
account at all of the considerable success which he has had with young
teenagers and the damage caused to them by the deregistration.
2. The applicant also complains that contrary to Article 14 of the
Convention he has been discriminated against as a single male foster
carer with regard to his dealing with young persons.
THE LAW
1. The applicant claims that the fostering panel which took the
decision to deregister him as a foster carer did not constitute a fair
hearing by an independent and impartial tribunal consistent with
Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) provides:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
In relation to the applicability of Article 6 para. 1 (Art. 6-1)
to the present case, the Commission finds that it does not have to
decide whether the right to work as a home foster carer is a "civil
right" within the meaning of Article 6 para. 1 (Art. 6-1) because the
application is manifestly ill-founded for the following reasons.
The Commission recalls that although Article 6 para. 1 (Art. 6-1)
embodies a "right to a court", it does not oblige Contracting States
to submit disputes over civil rights to a procedure which at every
stage fulfills the requirements of a tribunal under Article 6 para. 1
(Art. 6-1). (Eur. Court HR, Le Compte, Van Leuven and de Meyere v.
Belgium judgment of 23 June 1981, Series A no. 43, p. 23, para. 51).
Given that the fostering panel may not have satisfied the requirements
of Article 6 para. 1 (Art. 6-1) as to impartiality and fairness, it
falls to the Commission to examine whether the applicant had access to
an independent judicial body with full jurisdictional control control
over the prior procedure which itself provided the guarantees of
Article 6 para. 1 (Art. 6-1) (see e.g. Eur. Court HR, Bryan v. the
United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 17,
para. 40).
The Commission notes that the applicant sought judicial review
in courts at two levels of jurisdiction of the decision of the
fostering panel to deregister him as a foster carer. It further notes
that the judicial review proceedings could not result in the court
substituting its own decision on the merits of the fostering panel's
decision. Nevertheless, in this case, it was open to the domestic
courts to quash the panel's decision if it found that it had been made
by reference to irrelevant factors or without regard to relevant
factors; if the evidence relied on was not capable of supporting a
finding of fact; if the decision was perverse or irrational or the
procedure disclosed unlawfulness, breach of natural justice or
unfairness (see eg. Eur. Court HR, Bryan, op. cit. paras. 25-26, 44).
In the present case there was no challenge made in the domestic
courts as to the reasoning of the fostering panel and there was no
dispute as to the facts. The High Court and the Court of Appeal had
jurisdiction to entertain the procedural grounds of the applicant's
application and the Commission notes that these submissions referred
essentially to questions of fairness and impartiality, i.e. whether the
fostering panel was biased in reaching its decision. In concluding that
the panel did not act unfairly, the Commission finds that the domestic
courts carefully examined the nature of the fostering panel, the
statutory duty which it exercised and the need for those taking the
decision about the applicant's registration as a foster carer to have
special knowledge of the situation in question.
For these reasons, given the special functions of the fostering
panel and the nature of the complaints raised by the applicant, the
Commission finds that in this case judicial review of the panel's
decision and procedures by the High Court and Court of Appeal fulfilled
the requirements of Article 6 para. 1 (Art. 6-1).
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. In relation to the applicant's complaint under Article 14
(Art. 14) together with Article 6 (Art. 6) that he was the victim of
discrimination on the grounds of his status as a male foster carer the
Commission recalls that difference in treatment of people in analogous
situations is only contrary to Article 14 (Art. 14) where it lacks
reasonable and objective justification (see eg. Eur. Court HR, Van der
Mussele v. Belgium judgment of 21 November 1982, Series A no. 70,
Fredin v. Sweden (No. 1) judgment of 18 February 1991, Series 1 no.
192, p. 19, para. 60). Notwithstanding that the applicant has
failed to show that he is in an analogous situation to a female or
married foster carer, the Commission notes that he has failed to
substantiate the complaint that he has been subjected to any difference
of treatment.
It follows that this part of the application must be rejected as
being manifestly ill-founded pursuant to Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy