AS TO THE ADMISSIBILITY OF
Application No. 13184/87
by Paul Walter HORN and Margaret HORN
against the United Kingdom
The European Commission of Human Rights sitting in private on
4 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 January 1987
by Paul Walter HORN and Margaret HORN against the United Kingdom and
registered on 7 September 1987 under file No. 13184/87;
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 first applicant is a British citizen born in 1957 and
resident in Llandudno. The second applicant, who is married to the
first applicant, is a British citizen born in 1952 and also resident
in Llandudno. The facts as submitted by the applicants may be
summarised as follows.
While the second applicant was six months pregnant, the
applicants (at that stage unmarried) approached St-Helens Metropolitan
Borough Council (hereinafter "the local authority") in February 1985
seeking financial help and a temporary fostering situation for the
expected baby.
On 12 May 1985, the second applicant gave birth to a son T.
While the second applicant was discharged from hospital, T. was kept
in hospital. On arrival at the hospital on 17 May 1985 to visit T.,
the applicants discovered that T. had been removed by the local
authority who had instituted wardship proceedings in respect of the
child. Counsel's note on appeal refers in this respect to the Social
Service's concern at the father's personality and the mother's
apparent complete and utter acceptance of his rather bizarre views on
parenting. On contacting the local authority, the applicants were
allowed to visit T. once per week for one hour. On 2 July 1985, the
first applicant's access was revoked by the High Court, apparently as
a result of the first applicant's conduct in threatening and abusing
the supervising social worker. The second applicant took the view
that she would not avail herself of her access arrangements if the
first applicant was excluded.
It appears that at some stage there was concern whether the
first applicant was, as a result of his mental health, able to act on
his own behalf and the Official Solicitor was brought in. However a
consultant psychiatrist reported that the first applicant was not
disabled from acting on his own behalf and the Official Solicitor
withdrew from the proceedings.
In October 1985, reasonable access was granted again to the
second applicant by the court, on condition that the child was not
brought into contact with the first applicant. However, the second
applicant again failed to take advantage of this opportunity.
On 11 November 1985, the court gave leave to place T. with
long-term foster parents.
After 11 December 1985 apparently no access visit took place
until 13 June 1986. On this occasion the first applicant accompanied
the second applicant and although he did not enter the room, he
apparently stayed at the window and according to the supervising
social worker, caused a commotion which distressed the child.
The local authority subsequently applied to the High Court
which by order of 22 July 1986 terminated the second applicant's
access. At a hearing on 12 November 1986, the High Court considered
an application by the local authority to place T. for adoption and a
cross-application by the applicants for custody or access. The
applicants, as on previous occasions, were represented by counsel.
The judge heard evidence from the first applicant and the local
authority. The judge also had before him a report by a consultant
psychiatrist dated 13 October 1986 which indicated that the first
applicant was not mentally ill but suggested that he has a personality
disorder. The psychiatrist also described the first applicant as
being of relatively low intelligence, forceful, impulsive and
abrasive, with an immature outlook. In his judgment, the judge
reviewed the previous proceedings and noted that access had been
withdrawn from the first applicant as a result of his behaviour, that
the second applicant had failed to make use of her access rights in
the absence of her husband and that the access was withdrawn from her
following an incident when the first applicant had accompanied her and
caused distress to T. by making commotion through a window. He found
that their history of access was poor (no more than 7 occasions since
T.'s birth) and did not appear to show much commitment. He concluded
that the child was with secure foster-parents, whom, as a result of
these circumstances and of the passage of time, he would regard as his
parents and that it was in the best interests of the child that this
security should not be disrupted. He accordingly made a care order in
favour of the local authority and gave leave for T. to be placed for
adoption. He refused access to the applicants but ordered photographs
to be provided every six months until adoption. The applicants were
advised by counsel that an appeal would stand no prospect of success
and their legal aid certificate was accordingly discharged.
On 8 July 1987, the second applicant gave birth to their
daughter Tm., who lives at home in the care of the applicants.
COMPLAINTS
The applicants complain of a violation of their rights as
natural parents. They complain that they have been deprived of
custody of and access to their own son.
THE LAW
The applicants complain that they have been refused custody of
and access to their son, who has been made subject of a care order in
favour of the local authority and placed for adoption. The Commission
has examined the applicants' complaints under Article 8 (Art. 8) of the
Convention which provides that:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission finds, in accordance with the established
case-law of the Commission and the European Court, that the decision
taken to place the applicants' son in care of the local authority and
to refuse any future access constituted an interference with their
rights to respect for their family life as protected by Article 8
para. 1 (Art. 8-1) of the Convention (see e.g. Olsson v. Sweden, Comm. Rep.
2.12.86, paras. 127-129 and Eur. Court H.R., W v. the United Kingdom judgment
of 8 July 1987, Series A No. 121-A, p. 27, para. 59). The Commission must
therefore examine whether this interference is justified under Article 8 para.
2 (Art. 8-2) of the Convention, namely, whether it is "in accordance with the
law", pursues one or more of the legitimate aims enumerated in the second
paragraph of Article 8 (Art. 8) and whether it is "necessary in a democratic
society" for one or more of those aims.
The Commission recalls that the decisions taken in relation to
the applicants' son were made in the context of the wardship
jurisdiction of the High Court and finds that they were "in accordance
with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention. The Commission also accepts that the decision of the
judge on 12 November 1986 to refuse access and make a care order in
favour of the local authority was taken in the best interests of T.
and it accordingly finds that the interference pursued the legitimate
aims of protecting the health and the rights and freedoms of T.
The question remains whether the decision was "necessary"
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. The
case-law of the Convention and the Court establishes that the notion
of necessity implies that the interference corresponds to a pressing
social need and that it is proportionate to the aim pursued. Further,
in determining whether an interference is necessary, the Commission
and the Court will take into account that a margin of appreciation is
left to the Contracting States, who are, in principle, in a better
position to make an initial assessment of the necessity of a given
interference (see e.g. Eur. Court H.R., Handyside judgment of
7 December 1976, Series A No. 24, pp. 22-24, paras. 48-50 and Eur.
Court. H.R., W v. the United Kingdom, loc. cit.).
When determining whether or not the refusal of custody and of
access to T. was necessary, the Commission also observes that it is
not its task to take the place of the competent national courts and to
make a fresh examination of the facts and evidence. The Commission's
task is to examine whether the reasons adduced to justify the
interference at issue are "relevant and sufficient" (Eur. Court H.R.,
Olsson judgment of 24 March 1988, Series A no. 130, para. 68). The
Court has also established that certain procedural requirements are
implicit in Article 8 (Art. 8), in particular that, as regards decisions in
child-care matters, the parents must "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" (Eur.
Court H.R., W v. the United Kingdom, loc. cit., paras. 62-66).
The Commission recalls that the High Court had heard evidence
from the first applicant, the Social Services and had a psychiatric
report concerning the first applicant. The judge found that the
applicants had a poor history of access (only 7 occasions since birth)
which showed a lack of commitment on their part. He noted that the
first applicant's turbulent behaviour had resulted in access being
withdrawn from him and that the second applicant, who acted in
complete submission to him, had tended not to avail herself of her
right to access visits in his absence. He also recalled that the
second applicant's access had been terminated following an incident
when the first applicant accompanied her on a visit and caused
distress to T. by making a commotion through a window. The judge
found that as a result of these circumstances and of the passage of
time T. regarded his foster-parents as his proper parents and that
any change would disrupt this security.
The Commission considers that the reasons adduced to justify
the interference were both "relevant" and "sufficient". The
Commission also notes that the applicants were parties in the wardship
proceedings and were able to participate in the various hearings
before the High Court, where they were represented by counsel. The
Commission therefore finds that the applicants were afforded
sufficient opportunities to argue their point of view before the
courts and to influence the decisions taken.
Accordingly, bearing in mind the margin of appreciation
accorded to the domestic authorities, the Commission finds that the
interference in the present case was not disproportionate to the
legitimate aim pursued and that it was justified as being "necessary
in a democratic society" for the protection of the child's health and
for the protection of rights of others, i.e. of the child, within the
meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
It follows that this application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)