The European Commission of Human Rights sitting in private
on 16 May 1986, the following members being present:
MM. J.A. FROWEIN, Acting President
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J.C. SOYER
H. DANELIUS
G. BATLINER
Sir Basil HALL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (art. 25);
Having regard to the application introduced on 4 April 1985 by
I.M-F. against the United Kingdom and registered on
13 September 1985 under file No. 11758/85;
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 an Italian citizen born and now resident in Turin,
Italy. The facts as submitted by the applicant may be summarised as
follows.
The applicant gave birth to her daughter Rita on 18 December 1969. On
8 January 1985, the Epsom Juvenile Court committed Rita to the care of
the local authority under Section 1 (2)(a) of the Children and Young
Persons Act 1969 on the ground that her proper development was being
avoidably prevented or neglected and that she was in need of care or
control.
The Juvenile Court ordered that Rita's parents were not to be treated
as representing the child, and therefore had her own solicitors and a
guardian ad litem to protect her interests. The applicant was also
represented and unsuccessfully opposed the application for a care
order.
By a Notice of Appeal dated 14 January 1985, the applicant appealed
against the care order. The hearing took place in the Crown Court on
2 April 1985 and the appeal was dimissed. The applicant asked the
court to state a case to the High Court but the judge refused. The
applicant was advised by counsel that further appeal was hopeless.
COMPLAINTS
The applicant complains that she has been separated from her daughter,
that her daughter is being taught in a school for the mentally ill,
and is very unhappy. She further complains that she is prevented from
returning her daughter to her home in Italy.
The applicant therefore invokes Art. 8 of the Convention (art. 8).
THE LAW
The applicant complains that she has been separated from her daughter
and prevented from returning with her to Italy, and that her daughter
is being kept at an institution for the mentally ill without any
justification.
It is true that Art. 8 (art. 8) guarantees to everyone the right to
respect for their family life.
However, the Commission is not required to decide whether or not the
facts alleged by the applicant disclose any appearance of a violation
of this provision as, under Art. 26 of the Convention (art. 26), it
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 applicant has not applied to the High Court to
make her daughter a ward of court and so bring the matter before the
High Court which has the jurisdiction to decide whether the welfare of
the child requires that she return to Italy with her mother or that
she be kept in an institution of the mentally ill. The applicant has,
therefore, not exhausted the remedies available to her under English
law.
The Commission recalls that according to English case-law where a
local authority has assumed parental rights over a child the High
Court will not interfere with the exercise of the local authority's
discretion in regard to such matters as access (A v. Liverpool City
Council 1981 2 AER 385, House of Lords). Therefore, in such cases,
the High Court wardship jurisdiction may not constitute effective
proceedings for the purposes of the Convention. However, it is clear
that wardship may still constitute an effective remedy in other
circumstances e.g. where the local authority has acted ultra vires,
with impropriety or where, as in Re H (1978 2 AER 903) the challenge
is directed not at the exercise of the local authority's discretionary
power but at the source of the power. In Re H, parents successfully
invoked wardship proceedings in the case of their child in care to
enable them to return to their own country with that child. This case
was acknowledged by the leading House of Lords case A. v. Liverpool
City Council as a special case. In the present case, the applicant,
an Italian citizen, wishes to return to her family in Italy with her
daughter. The applicant's case would therefore fall within one of the
exceptions to the rule as applied in the English case-law and
wardship, in the circumstances of this particular application, would
constitute an effective remedy for the purposes of Article 26 of the
Convention (art. 26).
Moreover, an examination of the case as it has been submitted,
including an examination made ex officio, does not disclose the
existence of any special circumstances which might have absolved the
applicant, according to the generally recognised rules of
international law, from exhausting the domestic remedies at her
disposal.
It follows that the applicant has not complied with the condition as
to the exhaustion of domestic remedies and her application must in
this respect be rejected under Art. 27, para. 3 of the Convention
(art. 27-3).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)