The European Commission of Human Rights sitting in private
on 2 December 1986 the following members being present:
MM. C. A. NØRGAARD, President
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
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 14 August 1986
by E.H. and A.A. against the United Kingdom and registered on 24
March 1986 under file N° 12133/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts as they have been submitted by the applicants, both
British citizens, born in 1949 and 1941 respectively and living in
Manchester, may be summarised as follows:
The applicants were and are unmarried; the first applicant is
a teacher, the second applicant an electrician. Both applicants were
previously, separately, married. The first applicant's children by
her marriage were living with her in 1982. The second applicant did
not have custody of the children of his marriage. In early 1982, when
the first applicant was expecting the birth of the applicants' child,
they were living in unsatisfactory accommodation, and subject to
severe emotional and financial pressures. The applicants sought
information on adoption from a social worker at the hospital where the
first applicant's confinement was due to take place, and were
contacted by the Social Services Department of the local authority,
who arranged a case conference concerning the applicants'
circumstances.
The applicants' child was born on 5 March 1982. On 17 March
1982, while still in hospital, the first applicant gave the child to a
social worker from the Adoption Unit of the Social Services Department
of the local authority for adoption, since when neither applicant has
seen the child. On that same day the child was placed with
prospective adoptive parents, who have subsequently adopted the child.
Arrangements were made for the social worker to bring adoption consent
forms to the applicants for signature subsequent to the first
applicant's discharge from hospital.
On 21 April 1982 the social worker responsible for the case
contacted the applicants to arrange for the first applicant to sign
the consent form for the child's adoption. The applicants contend
that they replied that they were reluctant to sign the form, and it
was arranged that the social worker would contact the applicants
again in this connection. The applicants contend that they were put
under some pressure by the social worker to sign the form, and
encouraged to the view that they would feel better once the form was
signed. The first applicant was told that she would be able to
rescind her consent at any time before a final order was made for the
adoption of the child and that the applicants would be visited by the
guardian ad litem, appointed to represent the child in the adoption
proceedings. The first applicant signed the statutory form of consent
to adoption on 1 June 1982. On 7 June 1982, the guardian ad litem was
appointed in respect of the child, and his enquiries and confidential
report to the judge were completed on 15 July 1982.
On 10 June 1982 the case was assigned to the lists by the
Wigan County Court and the applicants were each sent notice of the
proposed proceedings. Neither returned the acknowledgement slip
indicating an intention to oppose the application or otherwise to
participate in the proceedings and the case was listed for hearing on
19 July 1982.
On 12 July 1982 the social worker asked the first applicant to
swear an affidavit declaring that the second applicant was the father
of the child and on 13 July 1982 the guardian ad litem visited the
applicants with two forms of questionnaire which the local authority's
Social Services Department commonly require parents to complete for
adoption proceedings. The Court of Appeal held that these were not
statutory forms, although the applicants refer to them in their
application as "final consent forms".
The applicants contend that they told the guardian ad litem
that they did not wish the adoption of their child to go ahead. The
guardian ad litem's note on the meeting, as presented in evidence to
the Court of Appeal, reads as follows:
"I felt that (the first applicant) did want the adoption to
go ahead - (the second applicant's) feelings were perhaps a
little more hazy, but I felt his feelings of doubt were
surrounded with his worries with losing contact with his own
children and struggling to build a relationship with the
(first applicant's) children. He said he did not wish to
exercise his right to be heard by the court and did not want
to oppose the adoption.
Discussion of these issues was clearly stressful to
both (applicants). They refused to sign a departmental
form, which I explained I did not think was necessary for
the court hearing anyway. My interpretation of this refusal
was one of feeling that they had talked about the issues
enough and were just wanting the business to be dealt with."
The applicants contend that the guardian ad litem informed
them that the adoption hearing was listed to take place on 19 July
1982, but refused to tell them where the hearing would be, or at what
time. They contend that he promised to return to see them before
anything further happened in the case and the applicants state that
they assumed that the hearing on 19 July 1982 would not therefore take
place.
On 14 July 1982 the second applicant visited the Social
Services Department to discuss again the possibility of information
being passed to him about the child as the child developed. He was
informed that, in the view of the social workers dealing with the
case, this would be inadvisable. On the same day the second applicant
wrote to the Wigan County Court stating that he did not "entirely
agree with" the proposed adoption of his child. He added that the
guardian ad litem had not been able to enlighten the applicants as to
whether or not they were doing the right thing, and he reiterated his
request that he should be informed from time to time how the child was
getting on if the child were adopted by the prospective adopters,
whose names he had established. The second applicant added in his
letter that he was "led to believe" that he had "no legal control over
the destiny" of the child.
The second applicant's letter to the court was received on
19 July 1982, but was not identified as relating to the adoption
proceedings concerning the child in time to be put before the judge on
that day when an adoption order was made on the basis of the signed
consent to adoption dated 1 June 1982 and in the absence of any
recorded objection by either parent to the adoption.
The applicants were informed of the adoption order, and
contacted the Social Services Department of the local authority and
also tried to contact the adoptive parents. They were told that they
could not contact the adoptive parents but that a letter could be, and
ultimately was, passed from the adoptive parents to them informing
them of the child's development. The applicants did not take legal
advice, although the possibility of doing so was drawn to their
attention by the Court by letter of 22 July 1982. They wrote to
various other persons asking for help, without success.
The applicants state that in December 1982 they learned of the
right of appeal against the adoption order which could be exercised
within six weeks of the date of the order. They state that they then
went immediately to the Manchester Law Centre where they were advised
that they had grounds to apply for leave to appeal out of time. The
applicants state that their attempts to pursue this application
rapidly were obstructed by the inefficient English legal system and by
severe delays with legal aid. It appears that after the first
applicant approached the Manchester Law Centre in January 1983, a
letter was written to the Wigan County Court to the effect that the
first applicant had given only preliminary consent to adoption and
that she and the second applicant had considerable doubts about it.
The letter also stated that the guardian ad litem had agreed to
further discussions to be held on 15 July 1982, but had not kept the
appointment. The letter was acknowledged on 26 January 1983, and in
the substantive reply of 15 February 1983 the Chief Clerk to the
County Court stated:
"The court file contains the signed agreement of
(the first applicant) dated 1 June 1982 to the adoption of
the child. Notices and Form ACA.5 were sent to both (the
first and second applicants) on 10 June 1982 but neither of
them returned the acknowledgement slip indicating an
intention to oppose the application, or wishing to appear or
to be heard on the question whether an adoption order should
be made."
In March 1983 the Manchester Law Centre instructed counsel,
whose opinion prepared in April 1983 resulted in the first applicant
instructing solicitors, but this she only did on 16 July 1983.
Her solicitors applied for legal aid to appeal against the
adoption order and this was granted on 13 October 1983. No
application was made for an emergency legal aid certificate. For
reasons which are not explained the notice of appeal was not filed
until 14 February 1984.
Once the application for leave to appeal had been filed, the
matter was expedited by the Court of Appeal Civil Division and the
application was heard on 9 April 1984. The application was refused on
the same day and the transcript of the ex tempore judgment runs to ten
pages.
The Court of Appeal noted that certain adoptive procedures had
not been adhered to, and criticised in particular the fact that the
applicants had, inadvertently, been allowed to learn the names of the
prospective adopters of their child, a matter which should have been
kept confidential from them. The court noted that the applicants, in
view of their backgrounds, could be presumed to be intelligent and
educated people and examined the circumstances in which the question
of the child's placement for adoption at birth had been considered.
The court noted in particular that the applicants had been sent notice
of the application for adoption on 10 June 1982, and that neither had
returned the acknowledgement slip, or indicated any intention to
oppose the application, although they had been thereby notified that
it was imminently pending before the Wigan County Court. Regard was
also taken of the fact that the first applicant had signed a statutory
form of agreement to adoption on 1 June 1982, which she had never
subsequently retracted.
With regard to the second applicant's letter of 14 July 1982,
the court found that the second applicant had recognised that he had,
as the putative father, no veto on the adoption but that, save for a
passing reference to the mother, the letter was written from the
second applicant and related to his position alone.
The court then considered the question of delay arising
subsequently to the adoption order made on 19 July 1982. The
applicants' delays in instructing a solicitor (19 July 1982 to
16 July 1983) and the further delay of seven months from the date when
the solicitor had been instructed until the notice of appeal had been
filed were wholly unexplained, except that advice had apparently been
sought from counsel. The court noted that it was unnecessary to wait
for a full grant of legal aid before filing a notice of appeal in a
matter so obviously urgent as this, since an emergency certificate
could have been obtained, and advice given under the green form scheme
until the emergency certificate had been granted. This delay weighed
particularly against the applicants in view of their long delay in
seeking advice of any kind, first from the Manchester Law Centre, and
then, some six months later, from a solicitor.
The Court of Appeal then turned to an examination of the
substance of the applicants' grounds for their application for leave
to appeal, under the terms of their notice of appeal, which contended
that the judge who made the adoption order had been satisfied that the
first applicant's consent had been given freely and without condition,
whereas that consent had been withdrawn by the second applicant's
letter of 14 July 1982, and the meeting with the guardian ad litem on
13 July 1982. The court noted that the letter of 14 July 1982 had
certainly not withdrawn the first applicant's consent. The court then
considered whether, in view of the challenge made by the first
applicant to the content and outcome of her meeting with the guardian
ad litem on 13 July 1982, the guardian ad litem should be called to be
cross-examined on his sworn evidence filed on the basis of his
contemporaneous note of that meeting. However, the court concluded
that the delay in the proceedings was decisive against referring the
matter back to the county court and re-opening the question of the
adoption order. The court referred briefly to the confidential report
to the judge at first instance prepared by the guardian ad litem on
15 July 1982, which stated that the adoptive parents had already shown
their excellent parental ability and that it was clear that a
bond had been formed between them and the child. The court continued:
"That was written nearly fifteen months ago and during those
fifteen months the bond between the adoptive parents and
this child must be very strong indeed. He was given up by
his mother when he was only 12 days old and the only parents
he has ever known are his adoptive parents.
Finality in litigation is important, especially
where children are concerned, and in my judgment no ground
has been shown which would justify this court in granting an
extension of time and such an extension would be positively
harmful to the child. The stress on the adoptive parents of
re-opening the adoption at this stage might rub off on the
child and have incalculable consequences upon [the child]".
The applicants' application for leave to appeal was
accordingly dismissed.
The applicants first submitted their application to the
Commission by letter of 14 August 1984. After various correspondence
with the Secretariat of the Commission, an application form was sent
to the applicants on 6 February 1985.
By letter postmarked 11 February 1986 and received on
18 February 1986 the applicants notified the Commission's Secretariat
that they had been advised in December 1984 that they had a right of
appeal to the House of Lords, and that they had therefore asked the
Commission to hold their application in abeyance until the appeal was
heard. No trace of any such request addressed to the Commission has
been found. Nevertheless, the applicants informed the Commission that
on 7 February 1986 their petition to the House of Lords for leave to
appeal had been rejected, and requested the Commission to "recommence
our appeal". The applicants were advised to complete the application
form sent to them on 6 February 1985 which was ultimately submitted on
21 April 1986 and registered as the present application.
COMPLAINTS
The applicants complain first that they were denied a fair
hearing in the determination of their civil rights in relation to
their child's adoption. They state that the judge was not informed of
their objections to adoption, that they were not informed of the time
and place of the hearing, nor did they have the opportunity to attend
it or to make representations at it, and that they were misled in
relying upon the guardian ad litem and his promise to return before
the hearing took place.
The applicants also contend that their application for leave
to appeal was unfair, in that they were at a disadvantage since the
local authority were represented more numerously than they, their
counsel did not insist that the matter could be re-heard by the Wigan
County Court very quickly, and that they did not have the opportunity
themselves to speak to the court, nor to cross-examine the guardian ad
litem as to his record of the meeting on 13 July 1982.
The applicants further invoke Article 8 of the Convention and
allege that they were denied the protection of this provision in
relation to the adoption proceedings, that the normal adoption
procedures were not followed, and that once their child had been
adopted, the Social Services repeatedly informed them that there was
nothing they could do about it.
The first applicant appeals to the Commission to rectify these
matters by returning the child to her.
THE LAW
The applicants complain of the circumstances in which their child was
adopted. They invoke Articles 6 and 8 (Art. 6, 8) of the Convention, and
contend that they have been denied a fair hearing, and that there has been an
unjustified interference with their family life.
However the Commission recalls that in accordance with the
terms of Article 26 (Art. 26) of the Convention the Commission may only deal
with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law. In
the present case the applicants took no part in the adoption
proceedings which culminated in the adoption order on 19 July 1982.
Nevertheless they were able to appeal from that order to the Court of
Appeal within a period of six weeks. The applicants failed to appeal
within that period, but ultimately lodged notice of appeal, by way of
an application to appeal out of time, on 14 February 1984. This
application was heard and refused on 9 April 1984 by the Court of
Appeal.
According to the Commission's constant case-law, the
requirement of exhaustion of domestic remedies contained in Article 26 (Art.
26) of the Convention includes a requirement to comply with the rules of
domestic procedural law as to the form and time-limit within which appeals and
other remedies must be pursued (Application No. 2854/66, Dec. 8.12.67, C.D. 26
p. 24 at p. 53, Application No. 6115/73, Dec. 28.3.74, C.D. 45 p.123 and
Application No. 6878/75 Lecompte v. Belgium, Dec. 6.10.76, D.R. 6 p. 79 at p.
87).
It follows that in the present case, since the applicants failed to
respect the time-limit for the submission of their appeal to the Court of
Appeal, and their subsequent application for leave to appeal out of time was
rejected by the Court of Appeal on 9 April 1984, they have failed to exhaust
domestic remedies in accordance with Article 26 (Art. 26) of the Convention.
Their application must therefore be rejected in accordance with Article 27
para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)