AS TO THE ADMISSIBILITY OF
Application No. 14114/88
by Andrea DAVISON
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 August 1988
by Andrea DAVISON against the United Kingdom and registered on
18 August 1988 under file No. 14114/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1966 and resident
in Newcastle-upon-Tyne. She is represented by David Smark, a
solicitor practising in Newcastle-upon-Tyne. The facts as submitted
by the applicant may be summarised as follows.
The applicant had an unhappy childhood. She was abandoned by
her own mother and sexually abused by her father. She was taken into
care at the age of 11 and became pregnant while in care. Her son K
was born on 8 March 1983.
After K's birth, the applicant went with K to a family care
centre in order to learn mothering skills. At the end of 1983 the
applicant and K left the centre to live with Mr. and Mrs. H, who had
once been her own foster-parents. The relationship between the
applicant and Mr. and Mrs. H broke down. There were rows about what
Mrs. H regarded as her lack of care for the baby and the applicant
told Mr. H that the baby was "costing her boyfriends". In discussions
with Mr. and Mrs. H, the applicant agreed it would be better for
herself and K if K went to long-term foster-parents. On 31 December
1984, the applicant left K with a babysitter and did not return. She
phoned Mr. and Mrs. H the next day to inform them that she would not
return until K had been placed with foster-parents. For the next few
months K was looked after by Mr. and Mrs. H and the applicant had
access to K for one hour each week.
On 12 April 1984, the Social Services Department of the City
of Newcastle-upon-Tyne (hereafter the "Social Services") held a case
conference concerning K which the applicant was not invited to attend.
They had made K a ward of Court soon after his birth on 23 June 1983
and shortly afterwards an order was made committing the interim care
and control of K to the Social Services. The Social Services took the
view that K should be adopted. They placed K with long-term
foster-parents on 17 May 1984, without prior consultation with the
applicant or seeking the permission of the Court, following erroneous
advice from the District Registrar. They also applied to the Court to
terminate the applicant's access. On 25 June 1984, the High Court
granted the application terminating the applicant's access, although
the judge criticised the moving of K to long-term foster-parents
without application to the Court because it had pre-empted his
decision terminating access.
The applicant appealed to the Court of Appeal, which on
31 August 1984 restored access of one hour per week on the basis that
it was too early to close the door on rehabilitation. The applicant
alleges that the Social Services disagreed with the decision and led
the applicant to believe that it would not be complied with. The
Social Services had also led K's foster-parents to believe that they
could adopt K.
The Social Services sought the advice of a child psychiatrist,
who in his report of 11 March 1985 recommended that access should be
increased. Access was subsequently increased.
In December 1985, a statutory review was held by the Social
Services concerning the case which the applicant was invited to attend
with her legal adviser. While it was reported that access had taken
place successfully, the Social Services decided that an application
should be made to the Court to terminate access since it was in their
view leading nowhere. In April 1986, a summons was issued applying
for termination of access and leave to place K for adoption.
Following alleged signs of distress by K during access visits
in May, the Social Services applied to the High Court which, on 18 June
1986, suspended access except for diagnostic purposes, pending the full
hearing of the Social Services' application.
Following a hearing on 4 November 1986, the High Court in a
judgment dated 24 November 1986 agreed to terminate access and grant
leave for K to be placed for adoption. In the judgment, the judge
found that the Social Services had in fact flouted the spirit of the
Court of Appeal's decision by failing to consider or trying
rehabilitation. He also found that following the case conference in
December 1985, "a decision to terminate access was taken at that stage
without any evidence that the child was being upset, without any
evidence that any step towards rehabilitation was being considered and
I am drawn to the conclusion that the reason why this extraordinary
decision was taken ... was because the overall plan was, right from
the start, to apply for a permanent placement, adoption and access
just did not fit into that plan". The judge went on however to find
that K had bonded very successfully with his foster-parents with whom
he had lived for two years and that the Court no longer had any
choice:
"Today, in giving this judgment, this Court is presented with
a fait accompli. The child has now been with foster-
parents too long for him to be taken away from them at his
early age; no attempt has been made at rehabilitation and
it is now too late, and if is to stay with
parents> it clearly should be under an Adoption Order in
order to avoid strain and stress. It is right that access,
therefore, should be broken off. The Court has been placed
in a position in which a decision has literally been thrust
upon it and there is no alternative."
The judge reviewed in detail the evidence relating to the
history of access visits. He noted that K was increasingly distressed
during access visits in the six-month period before the hearing. He
accepted the evidence of the consultant psychiatrist, who had stated:
"During the earlier months of 's life there were serious
doubts as to 's ability to care for him in an
unsupported environment, therefore the local authority sought
long-term foster-parents for him, with whom he has now been
placed for over two years. 's personal
circumstances have certainly changed for the better and she is
in a better position now than she was before, to offer him a
home. But is a demanding boy who requires clear limits
and is functioning at a reasonable level at the present time.
He has lived with
most crucial over the period of maximum attachment - in other
words, between 18 and 24 months. behaviour to access
visits and his behaviour within the foster-parents' home leads
me to the conclusion that he views as his
parents at an emotional level. Over the last year the quality
of the relationship between and does not
appear to have improved despite ... regular access visits.
Any attempts to return to 's full time care
must be seen as the equivalent of removing from his
emotional parents. The uncertainty which exists about 's
future has perhaps contributed to the anxious attachment which
he shows prior to an access visit. If he is to remain in his
present family; the certainty of this placement needs to be
confirmed as quickly as possible, perhaps by adoption. In
these circumstances continued access would offer no positive
benefits to 's long-term development."
The judge concluded in light of the evidence that K was not
benefitting from access and that he might suffer harm if it continued.
The applicant appealed to the Court of Appeal which on
16 February 1987 upheld the High Court's decision. Though it
commented critically on the handling of the case by the Social
Services, it held that the judge had given proper consideration to
the question of whether it was in the interests of K for access to
continue and that her conclusions on the evidence could not be
faulted.
The applicant appealed further to the House of Lords which,
after hearings held on 30 November 1987 and 1 December 1987, gave its
judgment on 18 February 1988. The House of Lords agreed that the
decision of the High Court had been "distressingly inevitable" but did
not agree with the criticisms levelled at the Social Services by the
High Court and the Court of Appeal.
Lord Oliver gave a long and detailed judgment, with which the
other Lords of Appeal concurred and in which he examined in depth the
child care cases dealt with by the European Court of Human Rights.
The following extract sets out part of his findings:
"... I am, however, for my part, quite unable to discern in
the conduct of the respondents anything that could fairly be
described as a disregard of the spirit of the Court of
Appeal's order. The court's intention, on its face, was
simply that access should continue for the time being so that
the possibility of rehabilitation should not be wholly
excluded and nothing in the court's judgment indicated any
disagreement with the view of Hollis J., formed after a close
analysis of the evidence, that rehabilitation was not a
realistic present possibility. I read that judgment as
doing no more than suggest that the effect of access should be
assessed over a longer period before making a final decision
of where the ward's interests lay. If there is a criticism
which can legitimately be made of the respondents it is, I
think, this, that
the case, had clearly perceived at a very early stage that the
ward's long-term future lay in adoption by the foster-parents
and this, rather than positive attempts at rehabilitation,
continued to colour her approach to the question of access by
the child's mother. At the same time, there has to be borne
in mind that her primary responsibility was to this child who
had already had a fairly disturbed babyhood and had, for the
first time, been received into a stable home with people to
whom he could relate as his parents. What the respondents
determined to do was to seek the advice of a very well known
paediatrician,
enable that to be done was made and granted.
the south of England and it was some time before arrangements
could be made to enable him to report. He did so, however,
on 11 March 1985 and recommended a programme of phased
extension of access by the appellant to embrace visits of up
to three hours, weekly in the first instance. In his report,
exercise and was not to be thought to imply any bias either
for or against eventual rehabilitation. The judge regarded a
'diagnostic exercise' as being entirely contrary to the spirit
of the Court of Appeal's order, but I am bound to say that I
think that that was exactly what the court had in mind in
speaking of a review in the light of the effect of continued
access on both mother and child. Following that report,
access was increased as suggested and continued on an
increased scale throughout the year of 1985. In December 1985
a departmental review took place, which was attended by the
appellant and her solicitor and by the foster-parents and it
is common ground that in the course of the discussion which
then took place regarding 's future it was intimated that
the respondents had decided to apply to the court again to
terminate access and to seek leave to arrange for 's
adoption. It is also common ground that, up to that point,
access by the appellant to the ward had not given rise to any
difficulties although it was
perceived no positive benefit from it to .
of her reasoning was that her concern throughout was with the
child's long-term future, that the access which had taken
place demonstrated nothing to indicate any more realistic
prospect of rehabilitation than had previously existed and
that continuing access was likely to be unsettling both for
the child and for the foster-parents. It is, however, clear
from her evidence that she had not regarded rehabilitation
within the foreseeable future as a practical possibility and
this no doubt coloured her thinking. The judge described the
decision as 'extraordinary'. It may well have been one that
could have been more tactfully communicated, but in the light
of the facts that, at that stage, the ward had been in the
care of
appellant was not in a position to provide a settled and
stable home for him and also having regard to the likely
effect of an indefinite continuance of a state of uncertainty,
both on the child and on the foster-parents, I am bound to say
that the decision, though no doubt inevitably a hard one, and
from the appellant's point of view perhaps a harsh one, can
hardly be considered irrational. In fact access by the
appellant was continued for the time being and it was not
until the beginning of April 1986 that a summons was issued by
the respondents for access to be discontinued and leave for
the foster-parents to apply for adoption. Access continued
thereafter until 18 June 1986 when Hollings J. made an order
adjourning the hearing of the respondents' summons to a date
to be fixed and terminating access in the meantime except for
diagnostic purposes. The hearing of the summons before Judge
Cohen occupied four days in October and November 1986 and
judgment was delivered on 24 November 1986. In addition to
the evidence of the social workers involved the judge had the
evidence of a court welfare officer and a consultant
psychiatrist,
to consult. That evidence clearly pointed to adoption as the
only viable long-term solution for the ward. Particularly
significant was a passage from
'Any attempts to return to full
time care must be seen as the equivalent of removing
from his emotional parents.'
Additionally, the evidence established a deteriorating pattern
of access, with displaying alarmingly acute signs of
distress on access visits. Various suggestions have been
canvassed to account for this - for instance, that the
respondents' decision to make the application in December
created an uncertainty in the foster-parents which
communicated itself to the child. The judge made no findings
about it and any conclusion would be purely speculative. The
fact remains that, by the date of the hearing, it was quite
evident that access visits were, for whatever reason,
producing reactions of distress the level of which was, in P>'s words, 'of a much more intense degree than a typical separation anxiety such as one might see for children going to school, for instance'. At the same time, the appellant's situation offered little confidence in any present ability to provide a satisfactory home for . She was living with a young man by whom she was pregnant and whom she hoped to marry. Her past relationship with him had, however, been a somewhat stormy one and there had been incidents involving physical violence, although there was no suggestion that they had involved the ward" ( 2 WLR p. 398). Lord Oliver concluded that he found no error in the High Court judge's approach to the question which she was called upon to determine or in the conclusion to which she felt compelled. The appeal was therefore dismissed. The applicant had been represented by solicitor and counsel throughout these proceedings. The applicant has since given birth to a second son, who has remained in her care since his birth. COMPLAINTS The applicant complains of a violation of Article 8 of the Convention. She complains that the Social Services failed to make any effort to rehabilitate the applicant with K. The Social Services also placed K with long-term foster-parents without the consent of the High Court and thus pre-empted the situation despite the decision of the Court of Appeal and the 1983 Code of Practice. She also complains that the Social Services excluded the applicant from their decision-making process. She only attended one case conference (December 1985), all other case conferences and statutory reviews having been held in confidential circumstances and the resultant decisions not communicated to her. The applicant further submits that her case before the United Kingdom courts foundered on the effluxion of time and were not decided on the merits. The applicant also complains of the length of time taken in the proceedings and invokes Article 6 para. 1 of the Convention. THE LAW 1. The applicant complains of the Social Services. She complains that they failed to try to rehabilitate the applicant with K, that they placed K with long-term foster-parents without the consent of the High Court and that they excluded her from their decision-making process. She also complains that her case before the courts was decided by the effluxion of time rather than on the merits. She invokes Article 8 (Art. 8) of the Convention, which provides 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 applicant's complaints under this provision arise from the events following the birth of her child K, who was made a ward of court on 23 June 1983 and committed by the High Court to the care and control of the Social Services shortly afterwards. The Commission notes that the applicant does not complain of the decisions whereby access was terminated and K placed for adoption and will not therefore examine the conformity of these decisions with Article 8 (Art. 8) of the Convention. The applicant instead complains of various aspects of the procedure and decision-making process. The Commission will therefore consider whether the subject-matter of these complaints disclose any lack of respect for the applicant's rights guaranteed under Article 8 (Art. 8) of the Convention. The applicant has complained of a lack of involvement in the decision-making process implemented by the Social Services in relation to K. She submits that she only attended one case conference for example and was excluded from all other discussion of the case. An analogous issue was considered before the Court in W v. the United Kingdom (Eur. Court H.R., judgment of 8 July 1987, Series A No. 121-A) where it was stated: "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)." The Commission recalls that while it appears that the applicant participated in only one case conference, K had been a ward of court from 23 June 1983 and that decisions concerning K's future and welfare lay within the responsibility and control of the High Court. Thus, the Social Services were required to apply to the courts for approval of any proposed measures and the applicant, as party in the wardship, was fully involved in such proceedings. The Commission further recalls that she was legally represented in the wardship proceedings. With regard to these facts, the Commission finds that the procedural requirements implicit in Article 8 (Art. 8) were satisfied since the applicant was involved in the overall decision-making process to a degree sufficient to provide her with the requisite protection of her interest. The applicant has also complained that the Social Services failed to gain the consent of the court to place K with long-term foster-parents and that they failed to make any efforts to rehabilitate the applicant with K. The Commission recalls that the Social Services placed K with long-term foster-parents without applying to the court after receiving erroneous advice from the District Registrar. While the High Court considered in its judgment of 25 June 1984 terminating access that this had pre-empted his decision, the Court of Appeal on 31 August 1984 reversed his decision and restored access. Further, while the applicant complains of the Social Services' failure to pursue a course of rehabilitation, the Commission recalls that following the Court of Appeal judgment which stated it was too early to close the door on rehabilitation, the Social Services consulted a child psychiatrist and following his recommendation, increased the applicant's access. In December 1985 the Social Services then held a case conference attended by the applicant and came to the decision to terminate access and an application was accordingly made to the court. The Commission notes that the High Court and the Court of Appeal criticised the Social Services' implementation of the previous Court of Appeal decision. However, in its judgment of 18 February 1988, the House of Lords found that the Social Services had not flouted the spirit of the Court of Appeal's order but acted correctly in conducting a review of the effect of further access on the applicant and K, before coming to the conclusion that it was in K's interest for access to be terminated. In light of these circumstances, the Commission finds that the applicant's complaints disclose no lack of respect for her right to respect for her family life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention. The applicant has further complained that, as in the case of H v. the United Kingdom (Eur. Court H.R., H v. the United Kingdom judgment of 8 July 1987, Series A No. 120, p. 41), the question of access was decided, not on the merits, but as a result of the effluxion of time. The Commission recalls however that in H v. the United Kingdom the applicant's access to her child had been terminated on 24 June 1977 and her application for access to be restored was not heard until 22 October 1980, when the child (4 1/2 years old) had already been placed with adopters and had not seen the applicant for 3 1/2 years. In the present case, while K had indeed been placed with long-term foster-parents, access had continued, with only a brief gap (June-August 1984) until the High Court decision terminating access in 1986. An examination of the judgments of the High Court, the Court of Appeal and the House of Lords also shows that the matter of continuing access for the applicant was examined thoroughly on the merits. The Commission accordingly finds that this complaint discloses no appearance of a violation of Article 8 (Art. 8) of the Convention. It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicant also complains that the length of time taken by the proceedings breached Article 6 (Art. 6-1) of the Convention, which in its first sentence of paragraph 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." The Commission recalls that, in the first proceedings brought to terminate the applicant's access, the decision of the High Court was given on 25 June 1984, but reversed two months later on 31 August 1984 by the Court of Appeal. Following a period of increased access, the Social Services again instituted proceedings to terminate access in April 1986. The High Court hearing took place on 4 November 1986 and its judgment was given on 24 November 1986. The Court of Appeal heard the applicant's appeal on 16 February 1987 and the applicant's further appeal to the House of Lords was dismissed in its judgment of 18 February 1988, following hearings held on 30 November 1987 and 1 December 1987. These proceedings accordingly lasted less than two years. As previously stated, the Commission finds that the subject-matter of the proceedings was decided on the merits and not by the effluxion of time. In light of these circumstances, the Commission finds that the proceedings did not exceed the reasonable time required by Article 6 para. 1 (Art. 6-1) of the Convention. It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission DECLARES THE APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)
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