FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 77033/01
by Peter JAMES and Others
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 27 August 2002 as a Chamber composed of
MrM. Pellonpää, President,
SirNicolas Bratza,
MrA. Pastor Ridruejo,
MrsE. Palm,
MrM. Fischbach,
MrJ. Casadevall,
MrS. Pavlovschi, judges,
and MrM. O’Boyle, Section Registrar,
Having regard to the above application lodged on 17 June 1999,
Having deliberated, decides as follows:
THE FACTS
The applicants are the James family, all United Kingdom nationals, resident in Norwich:
(1) Dr Peter James, born in 1938; husband
(2) Mrs Sue James, born in 1944; wife; and their children
(3) Mr David James, born in 1971,
(4) Ms Victoria James, born in 1974,
(5) Mr Richard James, born in 1976,
(6) Mr Caspar James, born in 1980.
They are represented before the Court by Ms Nuala Mole, of the Aire Centre, London.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first and second applicants decided to put themselves forward to adopt a child. In March 1990, they were approved by the Childrens’ Society as prospective adopters and were matched with a child, J., who was born on 21 January 1984 and in the care of Essex County Council (“the local authority”). They stated that they made it clear that they could not envisage adopting a “boisterous” child or any child who presented challenging behavioural or physical disabilities.
During the matching process, the applicants were not shown inter alia J.’s July 1990 school report which noted that there were “constant arguments when he was with others” and that he “can be aggressive”, a report of a previous foster carer which depicted J. as a very troublesome presence in the family home and a report by the Maudsley Hospital which stated that J. would find it harder to find adoptive parents given his history of difficult behaviour. The documents on J.’s background gave a clear picture of a troublesome and difficult child with a disturbed background, far from the child whom the applicants envisaged they would be caring for.
On 2 September 1990, J. moved into the applicants’ home. It was immediately apparent that he had serious behavioural problems, that he was prone to persistent foul moods and required constant one to one attention.
The applicants began to discover information that demonstrated that J. had not been a suitable child for them to adopt and felt very strongly that they had been severely misled by the local authority. Had full and candid disclosure been made they felt that they would never have accepted J. as suitable for their family. For example, they were not told of the possibility that J. might have had a genetic disposition to fragile X syndrome until shortly after he arrived in their home; they were not told until February 1992 that he had been removed from his first foster placement after an alleged sexual incident between him and the foster mother’s daughter; and they were not told until two years later that it was the unsubstantiated belief of a previous social worker that J. had been abused at a pre-verbal stage. Nor had they been told of the correct number of previous placements (there had been three, not two) or of the extent of disruption that J. had caused in these placements.
In 1991, the applicants reached the painful decision to discontinue their relationship with J. However social worker delays in responding to the situation left the applicants in the impossible situation of finding that they did not want to adopt him but having to keep him as the local authority could not place him anywhere else. In July 1992, they decided that he could remain with them as a foster child while attending boarding school most of the year.
On 15 July 1993, the applicants initiated the local authority’s internal complaints procedure complaining about their poor social work practices and also seeking access to the files to ensure the records accurately reflected the difficulties surrounding the placement. Their complaints were upheld in June 1994 and the applicants received reimbursement of their legal costs of 10,000 pounds sterling.
Following further disputes with the local authority about payment of J.’s boarding school fees, the applicants applied for a residence order for J. in October 1997. This order was made on 9 April 1998.
J. has remained difficult throughout his teenage years and exhibits disturbed and disordered behaviour.
The applicants took legal advice concerning their remedies in respect of the local authority’s failings in their case.
Notes of a consultation with Queen’s Counsel on 17 December 1998 referred to the case-law which indicated that it was problematic to establish that a local authority owed a duty of care to foster parents in the area of child care. A pending case of W. v. Essex County Council (2000 2 WLR 601) was expected to clarify if a cause of action could arise in a similar situation. It was also pointed out that difficulties arose concerning the ability of the applicants to demonstrate that they had suffered damage, as it would be necessary to show that there had been economic loss or a psychiatric condition caused to the parents or the other children.
On 16 March 2000, the House of Lords issued its judgment in the case of W. v. Essex County Council, holding that the foster parents’ claim against the local authority could not be struck out and should proceed on the merits.
On 20 June 2000, advice from Queen’s Counsel noted that recent authorities indicated that the applicants might have an arguable claim that the local authority owed them a duty of care in respect of the information which they imparted about any child offered for fostering. However, the difficulty with their claim was that they had not suffered any damage recognised by law. They had not suffered any physical injury and had been able to protect their own children against J. Unlike the foster parents in W. v. Essex County Council, they had not needed psychiatric treatment or been forced to abandon paid employment or otherwise incurred any overall financial loss. She therefore advised that there was no basis on which the courts would accept that they had suffered any damage of a kind that the local authority had a duty to prevent or of a kind that was recoverable.
COMPLAINTS
The applicants complained under Article 8 of the Convention that the local authority had been under a positive obligation to make proper and adequate disclosure about J. before he came to live with the applicants’ family. This lack of information meant that they had not been properly involved in the decision making process regarding his placement in their family.
The applicants complained under Article 13 of the Convention that there was no remedy available to them in respect of the damage which they had suffered due to the local authority’s failure properly to disclose information. They referred to the limitations on the possibility of suing local authorities concerning their child care functions and to the fact that negligence did not recognise the type of damage which they had suffered, requiring physical or psychiatric damage or pecuniary damage.
THE LAW
The applicants complained that the local authority had failed to provide them as prospective adopters with information concerning J. and that they had no remedy in respect of this failure. They invoked Articles 8 and 13 of the Convention which provide as relevant:
Article 8 of the Convention:
“1. Everyone has the right to respect for his private and family life...
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.”
Article 13 of the Convention provides:
“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.”
Article 35 § 1 of the Convention requires however that the Court may only deal with a matter where it has been introduced within six months from date of the final decision in the process of exhaustion of domestic remedies.
The Court recalls that the object of the six month time limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, the Worm v. Austria judgment of 29 August 1997, Reports of Judgments and Decisions 1997–V, at p. 1547, §§ 32-33).
Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect or prejudice on the applicant. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level (see Paul and Aubrey Edwards v. the United Kingdom (dec.) no. 46477/99, 4 June 2001).
In the present case, the applicants were aware that there had been non-disclosure of relevant information about J. from very soon after he came to live in their home in 1990. They initiated the local authority’s internal complaints procedure in July 1993 which culminated in findings in their favour in June 1994. The applicants asserted that they then took legal advice concerning remedies available against the local authority and have provided a copy of various advices received from counsel, one dated 17 December 1998 and the other 20 June 2000. Both dealt in some detail with the development of tort case law regarding the liability of local authorities for negligence in the performance of child care duties, which had been in the process of development. They both also made it clear that notwithstanding the issue of the existence of a duty of care owed by the local authorities in that area there was also the problem that the applicants had not shown that they had suffered damage recognised as recoverable in tort, namely they had not suffered any physical, psychiatric or pecuniary damage. They lodged their application with the Court on 17 June 1999, exactly six months after the date of the first of the above-mentioned advices.
No explanation has been offered by the applicants however for the gap between June 1994 and the receipt of the first advice, a period of some four years. There is no indication that there were any obstacles preventing them from seeking legal advice as to their position during this period, or that there was any material change in their situation which impacted on their knowledge of the existence of the grounds of their complaint before this Court. Nor is the Court persuaded that this lapse of time was necessary to obtain clarification of their situation in domestic law, or to obtain factual information necessary for the lodging of this application. While domestic law has been developing over this period, the fundamental problem concerning the lack of recognisable damage suffered by the applicants due to the non-disclosure has remained unchanged throughout. It would not be compatible with the purposes of the six month rule imposed by Article 35 § 1 of the Convention if applicants could postpone indefinitely the running of the time-limit by delaying, without adequate explanation, in obtaining legal advice readily available as to the existence or otherwise of a cause of action in domestic law.
The Court therefore finds that the applicants failed to introduce their complaints with due expedition and the application must be rejected pursuant to Articles 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’BoyleMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy