AS TO THE ADMISSIBILITY OF
Application No. 16184/90
by Carolyn-Jean LAVENDER
against the United Kingdom
The European Commission of Human Rights sitting in private
on 7 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 11 August 1989
by Carolyn-Jean LAVENDER against the United Kingdom and registered
on 21 February 1990 under file No. 16184/90;
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 of the case, as they appear from the applicant's
submissions, may be summarised as follows.
The applicant is a British citizen, born in 1967 and resident
in Bristol. She is represented before the Commission by Mr. Edwin
Lavender, her father, who introduced this application on her behalf.
The applicant has four children, S. (a son), A. (a daughter),
K. (a daughter) and M. (a son).
The applicant gave birth to her daughter A. on 6 September
1985. On 17 December 1985, A. was subject to a Place of Safety Order
following her admittance to hospital with bruises. The applicant's
explanation for the injury was that her eldest son S. had fallen on
top of A. The local authority (the County of Avon) applied for a care
order which was granted in May 1986 after a hearing at which the
applicant was represented by solicitor and counsel. Medical reports
stated that A. had a "characteristic frozen watchfulness" demeanour in
that she seemed afraid and unresponsive to normal social overtures.
Her weight was also below the normal range.
On 16 April 1987, A. was returned home to the applicant on
trial. After 6-7 weeks however, A. was taken back into care when a
social worker noticed further bruising on A.'s back, although the
applicant contended that this could only have happened as a result of
S. throwing toys into A.'s cot.
In November 1987, the applicant states that her daughter K.
fell and sustained bruising on her face. Her explanation was not
believed by the Social Services Department of the local authority who
removed K. under a Place of Safety Order. The applicant was charged
with causing actual bodily harm.
In January 1988, the application of the local authority for a
care order in respect of K. was heard before the Juvenile Court, which
however returned K. to the applicant's care.
From this period onwards, the applicant stated that if any of
her children had a bruise or scratch, they would be taken to a doctor,
stripped and examined.
On 18 March 1988, the applicant was informed that the local
authority had decided to place A. for adoption.
In November 1988, the applicant was tried in respect of the
injury to K. and was found guilty of a charge of neglect. She was put
on probation for two years. The judge stated that the applicant was
not taking enough steps to stop her children sustaining knocks and
bruises. The local authority made the applicant's three children, S.,
K. and M., wards of court in November 1988.
On 9 February 1989, the applicant's application to revoke the
care order in respect of A. was heard before the magistrates court.
She was represented by solicitor and counsel. The court refused the
application finding that since A. had been with her foster-parents for
three years and lost all memory of the applicant, it was in her best
interests for A. to remain with her foster-parents.
The applicant states that following her period in care K. had
become a temperamental child throwing serious tantrums which meant
that she was a danger to herself and her latest baby M. The applicant
was obliged to place K. in voluntary care of the local authority in
March 1989, where she has remained since. While the applicant states
that she wants K. to return home, she alleges that she has been told
by social workers not to insist since otherwise she might lose S.
and M.
On 10 August 1986, the applicant's father had introduced an
application before the Commission on behalf of the applicant. The
application was registered on 7 March 1989 under No. 14745/89. The
application was struck from the Commission's list of cases on 13 July
1989 following a letter from the applicant's father seeking to
withdraw the application.
COMPLAINTS
The applicant complains that there has been a lack of respect
for her family and private life contrary to Article 8 of the
Convention as a result of the placing in care of A. and depriving her
of custody. The applicant complains of the constant suspicion which
she lives under and the policy of the local authority which resulted
in repeated medical examination of her children. The applicant also
complains that K. remains in care.
THE LAW
1. The applicant has complained of being deprived of the custody
of A. She also complains of constant scrutiny by the local authority
and that K. remains in care.
The Commission recalls that the applicant introduced a
previous application No. 14745/89 which was struck from the list. It
notes that while the previous application concerned largely the same
facts and complaints, the present application has added some further
material and fresh allegations. The Commission has treated the
applicant's complaints as a new application rather that restoring the
previous application to the list. It has also decided not to go into
the question of compliance with the six months' time limit imposed by
Article 26 (Art. 26) of the Convention for the reasons given below.
Article 8 (Art. 8) of the Convention provides:
"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 that, in accordance with its established
case-law, the decision to take A. into care and terminate the
applicant's custody constituted an interference with the applicant's
right to respect for her family life protected by Article 8 para. 1
(Art. 8-1) of the Convention (see e.g. Eur. Court H.R., W. v. the
United Kingdom judgment of 8 July 1987, Series A no. 121, 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 Article 8 para. 2 (Art. 8-2) and
whether it is "necessary in a democratic society" for one or more of
those aims.
The Commission recalls that A. was taken into care following
injuries sustained. The magistrates court refused to revoke the care
order on the ground that it was in the best interests of A. to remain
with her foster-parents. The Commission finds that these decisions
were taken in accordance with the relevant child care legislation and
made for the aim of protecting A.'s health and rights. Consequently,
the decisions were "in accordance with the law" and pursued a
legitimate aim under Article 8 para. 2 (Art. 8-2), i.e. "the
protection of health or morals" and "the protection of the rights and
freedoms of others".
The question remains whether the decisions were "necessary"
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
The case-law of the Commission 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.
When determining whether or not the placing of A. in care and
the refusal of custody to the applicant were necessary in the interest
of A., the Commission observes that it is not its task to take the
place of the competent national courts and make a fresh examination of
all the facts and evidence in the case. 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, p. 32, para. 68).
The Commission recalls that the decision to place A. in care
was taken following injury and that A. suffered further injury when
allowed home on trial. In deciding not to revoke the care order, the
Court also had regard to the fact that A. had been placed with her
foster-parents for three years and lost all memory of the applicant.
The Court concluded that it was therefore in her best interests to
remain with her foster-parents.
The Commission also recalls that the applicant was present
during the proceedings and was represented by solicitor and counsel.
The applicant therefore had the possibility of putting forward any
views which in her opinion would be decisive for the outcome of the
case. 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 decision-making process to a
degree sufficient to provide her with the requisite protection of her
interest (see e.g. Eur. Court H.R., W. v. the United Kingdom
judgment, loc. cit., pp. 28-29, paras. 63-65).
The Commission therefore finds that, bearing in mind the
margin of appreciation accorded to the domestic authorities, the
interference in the present case was justified under the terms of
Article 8 para. 2 (Art. 8-2) of the Convention as being "necessary in a
democratic society" for the protection of the health and for the
protection of the rights of A. Consequently, this part of the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. As regards K., who is now also in the care of the local
authority as well as a ward of Court, the Commission notes that the
applicant herself placed K. in voluntary care.
It appears that the applicant has not requested the return of
K. from the local authority as she is entitled to do in respect of a
child who is in voluntary care nor brought her complaint before the
High Court which has jurisdiction in matters concerning wards of
court. It therefore appears that the applicant has not complied with
the condition as to the exhaustion of domestic remedies imposed by
Article 26 (Art. 26) of the Convention.
This part of the application must therefore be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
3. In so far as the applicant has also complained of the constant
scrutiny of her family by the local authority, the Commission notes
that there has been a history of incidents involving injury to the
applicant's children and that the local authority is under a statutory
duty to have regard to the welfare of children within its area. On
examination of the facts as submitted by the applicant, the Commission
finds that there is no indication of a violation of Article 8 (Art. 8)
of the Convention in this respect.
It follows that this part of the 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.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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