M. M. v. THE UNITED KINGDOM



AS TO THE ADMISSIBILITY OF

Application No. 13228/87

by M. M.

against the United Kingdom

        The European Commission of Human Rights sitting in private on

13 February 1990, the following members being present:

                MM.  J.A. FROWEIN, Acting President

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                M.   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 28 December

1985 by M.M. against the United Kingdom and registered

on 24 September 1987 under file No. 13228/87;

        Having regard to:

     -  the reports provided for in Rule 40 of the Rules of Procedure

        of the Commission;

     -  the written observations submitted by the respondent

        Government on 31 August 1988 and the observations in

        reply submitted by the applicant on 13 December 1988;

     -  the submissions of the parties at the hearing of 13 February

        1990;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a British citizen born in 1954.  The facts as

submitted by the parties may be summarised as follows.

        The applicant gave birth in 1971 to her first child A. who

suffered brain damage and is mentally and physically handicapped.  She

subsequently married her first husband, Mr.  J., and had four

daughters, B. born in 1973, C. born in 1974, D. born in 1978 and E.

born in 1979.  The applicant left her husband in 1979 and began

cohabiting with the man she was later to marry as her second husband,

Mr.  K.  In 1980, she gave birth to a son F.  In 1981, another son was

born but died in 1982.

        The Lancashire County Council (hereafter the local authority)

felt some concern with regard to the well-being of the applicant's

children and between 1978 and 1982 the children were placed on the

non-accidental injury list.  While over nine months pregnant with her

eighth child, the applicant admits losing her temper with her daughter

C. and hitting her with a belt.  The same day, 3 November 1982, the

applicant who was suffering from pre-eclamptic toxoemia, was taken in

to hospital and gave birth to a son G. Meanwhile, as a result of the

incident with C. and another alleged incident with her daughter B.,

the applicant's six children were removed by the local authority under

a Place of Safety Order on 3 November 1982 and care proceedings

commenced.  The applicant was also unable to take her son G. home with

her on leaving hospital.

        The applicant was charged with assault occasioning actual

bodily harm to B. and C.  She pleaded guilty and was made the subject

of a probation order.

        The applicant alleges that the local authority told her that

if she agreed to five of her children remaining in care, she would be

allowed to have the two youngest back.  The care proceedings under

Section 1(2)a of the Children and Young Persons Act 1969 were heard by

the Juvenile Court on 21 December 1982.  The magistrates found and the

applicant apparently acknowledged that the children's "proper

development was being avoidably prevented or neglected or their health

was being avoidably impaired or neglected or they were being

ill-treated".

        Accordingly, five children A., B., C., D. and E. were made

subject to care orders while F. and G., the two youngest, were allowed

home under supervision orders.

        The five children initially stayed in a children's home

together.  D. and E. were moved to a foster home in May 1983.

However, D.'s behaviour apparently proved unacceptable to the foster

parents and in October 1983, D. was moved to another foster home.

        In July 1983, the applicant applied to revoke the care

orders.  The application was heard on four separate days between

4 November 1983 and 28 February 1984 by the Juvenile Court.  At the

conclusion of the hearings, the care order in respect of A., her

handicapped son, was revoked and he was allowed home under a

supervision order.  The magistrates however maintained the care orders

in respect of her daughters C., D. and E., and decided that B. should

be made the subject of wardship proceedings so that her future could

be considered by a higher court which had the power to allow her to

return home under supervision.

        On 8 March 1984 the applicant commenced wardship proceedings

seeking the return of her children to her care and control.  All four

daughters were made wards of court with the agreement of the local

authority and the care orders made in respect of them were later

revoked to enable the whole family to be considered together.  On

26 March 1984, the applicant was granted legal aid for representation

in the wardship proceedings.

        On 30 March 1984, Mr.  Furniss, the social worker Area Officer,

filed an affidavit.  The affidavit included the two reports of

3 December 1982 and 6 September 1983 of Dr.  Bowers, the child

psychiatrist instructed by the local authority in the care

proceedings.  In his affidavit, Mr.  Furniss stated that the social

workers involved with B., C., D. and E. had grown convinced that the

children's best interests lay in permanent substitute homes.  He

concluded that the two older girls had been badly emotionally damaged

by the violence and arguments which they had witnessed and had on

occasions lived in fear of the applicant's erratic personality.  He

was equally convinced that it would be a major tragedy for D. and E.

to return home.  Dr.  Bowers' report of 6 September 1983 stated that D.

was a disturbed child and considered that the signs of improvement

would be reversed if returned to the applicant.  He found that E. had

become attached to the foster-mother and a return to the applicant

would disrupt this bond and expose her to the deficiencies and

distortions in the applicant's care of her children.

        The District Registrar issued directions about the conduct of

proceedings on 2 and 19 April 1984.  On 19 April 1984, the court

awarded interim care and control of the children to the local

authority and decided to invite the Official Solicitor to act as the

guardian ad litem for the children.  The Official Solicitor accepted

the role on 24 May 1984 and requested evidence from the local

authority.  During this period, further evidence was also sought on

the education and background of the children.  The local authority

sought evidence from the police officers involved on the history of

the matter but did not obtain their affidavits until July due to the

absence of the officers during the miners' strike.

        On 25 May 1984, the applicant's solicitors wrote to the local

authority notifying them of their intention to serve an affidavit in

reply but delaying doing so until receipt of further evidence from the

local authority.

        On 12 June 1984, Mr.  J.'s solicitor informed the Official

Solicitor that Mr. J. intended to seek access to all four children and

possibly care and control of C.

        On 15 June 1984, Mrs.  Page, the social worker with

responsibility for B., C., D. and E., filed her affidavit.  Mrs.  Page

reported that the children were settling down well in foster-homes.

D. was now with Mr. and Mrs. L. and was enjoying a loving secure

relationship with them.  E. had also formed a close bond with her

foster-parents, Mr. and Mrs. L.  She concluded that to return the

children to the applicant would jeopardise the future security both of

these children and of the children still living with the applicant.

        On 15 June 1984, Mrs. Bullas, the social worker assistant

involved with the family from 1977 to 1983 filed an affidavit in which

she reviewed her past involvement with the applicant and her family

and concluded with her opinion that the children could not possibly

grow into emotionally secure adults if they returned home.

        On 15 June 1984, the Official Solicitor reviewed the state

of the case and decided to interview other interested parties.  On

27 June 1984, the Offical Solicitor wrote to Mr. J.'s solicitor

seeking permission to interview his client.  On 3 July 1984, the

Official Solicitor wrote to the local authority seeking further

information and permission to interview social workers.

        On 13 July 1984, an affidavit was filed by WPC Musker

concerning the injuries sustained by B. and C.

        On 23 July 1984, the applicant's solicitor indicated to the

local authority that she intended to prepare the applicant's affidavit

only when all the affidavits of the local authority were served.

        On 14 August 1984, the Official Solicitor interviewed Mr.

Furniss, Mrs. Page and Mrs. Bullas.  On 15 August 1984, he interviewed

the applicant, Mr. K. and Mr. J.  On 16 August 1984, he interviewed B.

and B.'s foster-parents, K. and K.'s foster-parents, D. and D.'s

foster-parents and also E. and E.'s foster-mother.

        On 17 September 1984, E.'s placement with her foster-family

broke down and she was returned to a children's home.

        On 21 September 1984, F. started a serious accidental fire at

the applicant's home, forcing the family to move into temporary two

bedroom accommodation.

        At the end of September and beginning of October, a senior

officer at the Official Solicitor gave further consideration to the

case, in particular to further involvement of the child psychiatrist

Dr.  Bowers, whom the applicant had stated on 13 June 1984 she was not

prepared to talk to again.  A letter was sent on 19 October 1984 to

the applicant's solicitors to ascertain the applicant's position.

        On 19 and 20 October 1984, the Official Solicitor sought

further information including a report from Mr.  Blunt, the social

worker concerned with the applicant's family at home, and information

concerning the applicant, Mr. J. and Mr. K.  He also notified the

parties of his intention to seek a psychiatric assessment from Dr.

Bowers.

        On 29 October 1984, the applicant's solicitors informed the

Official Solicitor that they had no objection to Dr. Bowers being

approached but pointed out that his evidence was very strongly

challenged before the Magistrates Court and that Dr. Miller had been

called as a witness on behalf of the applicant.

        On 19 November 1984, the applicant and Mr. K. filed their

affidavits.

        On 28 November 1984, the Official Solicitor sought information

from the applicant's solicitors concerning Dr. Miller.  By a reply

received on 28 December 1984, he was informed that the applicant would

call Dr. Miller if his report was favourable.

        On 24 December 1984, E. was moved from the children's home to

join her sister D. at Mr. and Mrs. L.'s home.

        From 3 to 9 January 1985, the senior officers at the Official

Solicitor, reviewed the case.  They considered the Official

Solicitor's draft report and discussed the difficult problem as to

whether to proceed to trial or to instruct Dr. Bowers or a fresh

independent psychiatrist, which would lead to delay.  It was decided

to seek directions from the court on this point.

        On 4 January 1985, social workers carried out foster-parent

reviews of the L. family for D. and E. and on C.'s foster-parents.

        On 6 January 1985, B. was placed with new foster-parents after

breakdown of her previous placement.  B. later ran away from this

foster-home on 10 February 1985 and returned to the applicant.

        On 7 January 1985, the Official Solicitor wrote to the

applicant's solicitor seeking a copy of Dr. Miller's previous report.

        On 14 January 1985, the Official Solicitor issued a summons

seeking the decision of the court as to whether the evidence of an

independent child psychiatrist should be sought.

        On 16 January 1985, the Official Solicitor consulted various

parties concerning inter alia the question of psychiatric evidence.

The local authority was in favour of updating Dr. Bowers' reports

while the applicant's solicitor had "no firm view concerning the

calling of psychiatric evidence".

        On 16 January 1985, the Official Solicitor produced his first

report and expressed the view that the wardship proceedings be heard

at the earliest opportunity.  He reached the initial conclusion in his

report that the children, especially D. and E. who would find

re-adjustment difficult, should not return to the applicant.

        On 18 January 1985, the District Registrar directed by consent

order that another psychiatric report should be sought in order to

assess the prospects of rehabilitation.  The Registrar also directed

that the case should be listed for hearing not before 1 June 1985 and

after the parties informing the Court of their readiness, the matter

should proceed to trial.  On 6 February 1985 the Official Solicitor

instructed a consultant child psychiatrist, Dr. Leslie, who undertook

to report by May 1985.

        On 25 February 1985, the applicant gave birth to a son H.

        On 28 February 1985, the Official Solicitor sent further

information and an update to Dr. Leslie.

        On 1 March 1985, Mr. Furniss, the Area Officer social worker,

filed a second affidavit answering the applicant's affidavit and

dealing with recent events involving B.  Mrs. Bullas' second affidavit

was filed on the same day.

        During March, the applicant and her family returned to her

home, repaired after the fire.  On 19 March 1985, Dr. Leslie visited

the applicant and Mr. K. at home and also interviewed B.

        On 2 April 1985, the Official Solicitor phoned the applicant's

solicitor to explain that Dr. Leslie's report was expected by late

May.  He agreed that the applicant needed time to prepare a report in

reply and to seek a hearing in mid-July subject to the availability of

witnesses.

        On 9 April 1985, the applicant's solicitors wrote to the local

authority suggesting mid-July as a possible hearing date and enquiring

whether the local authority was ready and its witnesses available.

        On 17 April 1985, Dr. Leslie visited C. and C.'s

foster-parents.  On 26 April 1985, Dr. Leslie visited D. and E. at Mr.

and Mrs. L.'s.  On 24 May 1985, Dr. Leslie notified the Official

Solicitor by telephone that her report was completed in draft but that

due to her and her secretary's absence would not be ready until June.

        By letter of 5 June 1985, the local authority informed the

applicant's solicitor that 15-19 July and 30 August would be

convenient dates for them.

        On 11 June 1985, Dr.  Leslie submitted her report, which

recommended that B. remain at home, that the applicant's access to C.

be increased with a view to rehabilitation and that D. and E. should

remain with their foster-parents, access to them by the applicant

being terminated.  Dr. Leslie gave her opinion on D. and E. as

follows:

        "D.

        D. is a child who is insecure at present.  She fears

        removal from her foster-parents to whom she has now become

        deeply attached.  D. was four years old when the children

        went into care and she is now seven.  A large part of her

        life has therefore been spent away from her natural family

        and it would be extremely risky to uproot her after all

        this time and expect her to integrate back into her family

        of origin, given the instability of its history, the known

        conflicts especially with the maternal grandmother and its

        large size.  Large family size is, of itself, a known risk

        factor for psychiatric disorder.  It would therefore seem

        to be in D.'s best interests to stay with Mr. and Mrs.  L.

        on a long term basis.

        E.

        E. is at present less attached to her foster-parents

        in view of the shorter period of time she has been there

        but she appears to me to be very contented and pleased to

        be with D.  E. has very little memory of any of her

        life in her family of origin as she was only three when

        she was taken into care.  Half of her life has now been

        spent away from there.  E. is a child who should benefit

        from the sustained attention and encouragement which she

        will receive from the L.'s and which she will be

        unlikely to receive were she to return home.  I would

        therefore recommend that she too stays where she is on

        a long term basis.

        Access

        In the case of D. and E. their needs are similar.  Their

        father Mr. J. has waived his interests in access to them.

        I have come to the view that the present access

        arrangements are serving very little purpose for the two

        younger children and may increasingly put a strain on the

        placement.  I must stress that Mrs. L. has not suggested

        that access is curtailed but her evidence that both girls

        show some degree of strain exemplified by D.'s anxious

        questioning and E.'s enuresis and withdrawal would suggest

        that if the Court agrees that their home is to be with the

        L.'s on a long term basis, access for the time being should

        cease.  Links with the family of origin can be maintained

        by means of cards, presents, exchange of photographs.

        Access even as infrequently as four times a year might

        only serve to confuse these two children if rehabilitation

        is not being contemplated.  They are becoming aware of the

        fact that their natural mother cannot accept the situation

        and the attachments they must inevitably develop towards their

        foster-parents if they are to become emotionally secure."

        On or before 18 June 1985, the applicant's solicitor notified

the Official Solicitor that her psychologist was not available in July

and that they were quite happy to wait until after the long vacation

for a hearing.

        On 20 June 1985, the Official Solicitor wrote to the

applicant's solicitor asking for views about listing the case for

hearing.

        On 25 June 1985, the Official Solicitor spoke to the local

authority and applicant's solicitor by phone informing them that he

hoped to seek a hearing in July.  The applicant's solicitor confirmed

that the applicant's psychologist would not be available and that in

any case the High Court list in Manchester was believed to be full.

        On 26 June 1985, the Official Solicitor wrote to the Court

proposing that the case be listed "at the earliest opportunity".

        On 1 July 1985, the Official Solicitor filed his second

report, which recommended that B. remain with the applicant subject to

supervision, that C., D. and E. remain with their foster-parents, with

reasonable access by the applicant to C. but no access to D. and E.

        On 8 July 1985, the District Registrar ordered the matter to

be set down for hearing at Manchester, estimated length of hearing two

days.  On 9 July 1985, the Chief Clerk at Manchester District Registry

sent the Court file to the civil Listing Office, "for hearing urgently

as per ... letter from Official Solicitor".

        By letter of 9 July 1985 to the Official Solicitor, the

applicant's solicitor disputed the time estimated for trial and stated

that the earlier hearing date would appear to be after 30 August 1985.

        By letter of 17 July 1985 to the local authority and the

applicant, the Official Solicitor referred to the parties being agreed

that it was not practical for the matter to be heard that term.  He

commented that he assumed that the matter would now be listed before

Mr. Justice Ewbank in Manchester during November or December.

        On 25 July 1985, the Official Solicitor sought an updated

report from Mr. Blunt.

        On 2 September 1985, B. made allegations of sexual abuse

against Mr. K., which she later withdrew during questioning by the

police.  On 25 September 1985, B. repeated the allegations to social

workers and demanded to be taken into care.  B. was received into care

with the applicant's consent.

        On 30 September 1985, the case was reviewed by a senior

officer at the Official Solicitor and the decision taken to notify Dr.

Leslie of recent developments and request a further report.

        On 24 October 1985, B. ran away from the children's home and

returned to the applicant.  On 25 October, a Place of Safety Order was

made in respect of B. who was placed in an assessment centre.

        On 28 October 1985, the applicant filed an affidavit

responding to the reports of the Official Solicitor and Dr. Leslie and

defending Mr. K. against the allegations of sexual abuse.  The

applicant filed a further affidavit the same day responding to the

affidavits of Mr. Furniss, the police officer, Mrs. Bullas and Mr. J.

        On 31 October 1985, the Court informed the parties of the

provisional listing of the case for hearing on 26 November 1985.

        On 4 November 1985, Dr. Leslie filed a second report dealing

with the allegations of sexual abuse made by B.  In light of these

developments, she recommended that B. and C. not be rehabilitated with

the applicant.

        On 12 November 1985, Mr. Blunt submitted his updated report

expressing the opinion that the applicant should have had the

opportunity to look after all the children but that the passage of

time had rendered it unpractical.

        On 12 November 1985, Mrs. Halliday filed a further affidavit

recommending permanent fostering of D. and E. without access by the

applicant.

        On 20 November 1985, the applicant's solicitor serves Mr.

Blunt's affidavit exhibiting his reports.

        On 21 November 1985, the Official Solicitor filed a third

report revising his recommendations in light of the alleged sexual

abuse.  He now recommended that B.'s position be subject to further

review, with access to B. and C. at the discretion of the local

authority.

        A full hearing took place before Mr. Justice Ewbank of the

High Court on 26 and 27 November 1985.  The applicant was represented

by counsel and solicitor.  Evidence was heard from Mr. Blunt, the

applicant, Dr. Leslie, Mr. William McRobert (of the assessment centre

where B. had stayed), Mr. K., Mrs. Page and Mr. Furniss.  The judge

also saw B. alone in chambers.

        The judge commented in his judgment on the time taken to

bring the matter before him:

        "The originating summons was issued on 8 March 1984 and

        this hearing came to court on 26 November 1985.  There has

        accordingly been a delay of over a year and a half from the

        issuing of the originating summons and the hearing of the case

        by a judge, and there is no sensible explanation for this

        delay.  It should not have occurred, and it means that I now

        have to deal with a very different situation from the

        situation as it would have been if the case had been heard

        much earlier."

        After reviewing the history of the matter and the evidence

submitted, the judge decided that B. should be allowed home on trial

and that the applicant's access to C. be increased with a view to her

returning home if B.'s return was a success.  He decided, however,

that D. and E. should remain with their foster-parents and that the

applicant's access be terminated.  He stated in his judgment with

regard to D. and E.:

        "D. and E. were also at the children's home to begin with,

        and then they went to some people called W.  In October 1983,

        however, D. had to be taken away from Mr. and Mrs. W. and went

        to some people called L.  Then E.'s placement with         Mrs.  V.> broke down and she went back to the children's home,

        but in December 1984 she joined D. with and

        she has been there ever since; so D. has been with these

        foster-parents for two years and E. for nearly a year.  These

        two children are settled in their foster homes and they see

        their mother only occasionally.

        The mother would like to have all four children back.

        I have read all the reports relating to D. and E. and it seems

        quite clear to me that, whatever may happen to the two older

        children, these two children are at last secure and stable in

        their present foster home and, subject to the placement not

        breaking down, will be best settled in their future childhood

        by remaining with those foster-parents on a long term basis.

        The mother, I have to say, has really nothing to offer these

        two children in the future, and I am afraid that she will have

        to accept the fact that they are going to make their home

        permanently away from her."

        The applicant was refused legal aid to seek counsel's advice

as to whether grounds existed for appeal, though counsel did

apparently indicate to the applicant's solicitors that there were no

grounds.

        B. returned to the applicant's home on 28 November 1985.

        On 15 April 1986, the judge reviewed the position of B. and C.

but made no change.  On 11 July 1986, the judge again reviewed the

position and allowed C. to go home on trial.  On the application of the

local authority, the judge gave leave for an application to be made to

the High Court to free D. and E. for adoption.

        D.'s and E.'s foster parents Mr. and Mrs.  L. applied to the

local authority to adopt the two girls.  However on 1 January 1987, a

13 year old girl previously fostered by Mr. and Mrs. L alleged that

she had been sexually abused by Mr. L.  The girl had been interviewed

by a police officer and a social worker, who were convinced that she

was telling the truth.  Mr. L. was subsequently interviewed by a

social worker dealing with D. and E. and by a different police

officer: they were both convinced by Mr. L.'s denials.

        A meeting of the social services staff took place on

22 January 1987: the meeting was equally divided as to whether D. and

E. should be removed from their foster home.  The matter was brought

to the attention of the Official Solicitor who represented the two

wards D. and E.  After a further meeting on 19 February 1987, the

Social Services Department decided that the enormous damage which

would be done to the two girls if they were moved again far outweighed

the risks of future sexual abuse.  They therefore recommended to the

High Court that the children be freed for adoption and that Mr. and

Mrs. L. should be enabled to apply for an adoption order, a view

supported by the Official Solicitor.  The applicant opposed the local

authority's application and the local authority requested the Court to

dispense with the applicant's agreement on the grounds that her

consent was being withheld unreasonably.  The applicant had applied to

the Court at the same time for care and control of D. and E. to be

granted.

        The Court directed that the applicant's application and the

local authority's application should be heard at the same time.

Following a hearing on 23-24 July 1987, the court granted the local

authority's application to free D. and E. for adoption and dismissed

the applicant's application.

        In his judgment, Mr. Justice Ewbank found that events had

confirmed the suitability of the children's placement and that the

applicant had nothing to offer them.  He also reviewed the evidence as

to sexual abuse and concluded as follows:

        "...  I must look at the case against him

        and I see how this stands up.  This depends on the nature

        of the allegation, the impressions of the interviewer, my

        assessment of the motives of the child which may lead to

        a false allegation, and the character of the child.  I

        have looked at all the matters and I find that the

        allegations do not stand up.  On balance, I do not accept

        them.  I thought that the foster father's evidence was

        convincing.  I do not find that the foster father has

        sexually abused V.  D. and E. are not at risk ...

        ...  As regards the natural mother, she has never accepted

        that the children should have been taken away.  She says she

        has no intention of ever giving her consent and she knows

        a lot more than others about sexual abuse, having been

        raped by four men at the age of five.  She believes V. is

        telling the truth.  She goes on to say that her other

        children would like to see their sisters returned.  Her

        position is different from the natural father's as she has

        had more contact with the children.  It is however two years

        since she has had access.  In my judgment a reasonable

        mother would say: I have nothing to offer these children,

        they are safe and secure in a good foster home and their

        future lies with the foster parents.  So I dispense with

        the mother's consent and am satisfied that a freeing order

        would promote and safeguard the welfare of these children."

        On 22 February 1988, the local authority applied for adoption

orders in respect of D. and E.

        On 25 April 1988, the applicant gave birth to another son, I.

        On 23 November 1988, the Court granted the local authority's

application for adoption orders, ordering at the same time that D. and

E. cease to be wards of court.

RELEVANT DOMESTIC LAW AND PRACTICE

        The Family Division of the High Court has an inherent

jurisdiction, independent of statutory provisions and deriving from

the prerogative power of the Crown acting in its capacity as parens

patriae, to make a child a ward of court.

        The effect of wardship is that custody, in a broad sense, of

the child is vested in the court itself; it assumes responsibility for

all aspects of his welfare and may make orders on any relevant matter

whatsoever, notably as regards the care and control of and access to

the child and his education, religion or property.  In making such

orders, the court is required to treat the child's welfare as the

"first and paramount consideration" (Guardianship of Minors Act 1971,

section 1).  Unless terminated earlier by order of the court, the

wardship continues until the child attains his majority.

        Where there are exceptional circumstances making it

impracticable or undesirable for the ward to be, or continue to be,

under the care of his parents, the court may make an order committing

him to the care of the local authority (Family Law Reform Act 1969,

section 7(2)), subject to the power of the court to give directions

(Matrimonial Causes Act 1973, section 43(5)(a)).  In such

circumstances, custody of the child remains with the court and it is

for the court, and not the local authority, to take major decisions

regarding the ward's future; it retains, inter alia, jurisdiction to

make orders for access to the child.

        Wardship proceedings may be instituted by anyone who can show

an appropriate interest in the child's welfare.  An application for a

wardship order has to be made by originating summons.  The child

becomes a ward immediately the summons is issued but the wardship

automatically lapses after 21 days unless within that time an

appointment is made for the hearing of the summons.  This appointment

is normally held before a registrar who, subject to an appeal to a

judge, may give interim directions on such matters as access to the

child and may decide that other interested parties be joined in the

proceedings.

        A judge will hear contested wardship proceedings and also

applications - which can be made at any time by any party - for the

variation or discharge of an existing wardship order or for directions

on such matters as access to or the education of the child.  From the

judge's order, an appeal lies to the Court of Appeal and thence, with

leave, to the House of Lords.

        The child may be represented in wardship proceedings by a

guardian ad litem appointed by the court; this is usually the Official

Solicitor, who is a full-time public employee entirely independent of

the executive.

COMPLAINTS

        The applicant complains that she has been refused access to

and custody of her daughters D. and E.  She submits that she has never

harmed either of them, while the daughter whom she had struck was

returned to her within nine months of being placed in care.  She also

complains of the delays in bringing the matters before the court which

resulted in the judge deciding that D. and E. should remain in care.

        The applicant further complains that D. and E. were freed for

adoption by Mr. and Mrs.  L., the former of whom had had an allegation

of sexual abuse made against him.

        The applicant invokes Article 6 and Article 8 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 28 December 1985 and

registered on 24 September 1987.

        On 6 May 1988, the Commission decided to bring the application

to the notice of the respondent Government and to invite them to

submit written observations in its admissibility and merits pursuant

to Rule 42 para. 2 (b) of the Rules of Procedure.

        The observations of the respondent Government were submitted

on 31 August 1988 after a six weeks extension in the time-limit and

the observations in reply submitted by the applicant on 13 December

1988.

        The respondent Government submitted supplementary observations

and documents on 28 February 1989.  The applicant was granted legal

aid on 12 May 1989 and by letter dated 11 July 1989 the applicant's

solicitors submitted a further brief statement on behalf of the

applicant.

        On 6 September 1989, the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

application.

        At the hearing, which was held on 13 February 1990, the

parties were represented as follows:

        The respondent Government

        Mr.  M. C. WOOD, Agent, Foreign and Commonwealth Office

        Mr.  M. F. BAKER, Counsel

        Miss J.H. DRAPER, Department of Health

        Mrs.  A. WHITTLE, Department of Health

        Mr.  H.J. BAKER, Offical Solicitor's Department

        Miss D.L. BROOKES, Foreign and Commonwealth Office

        The applicant

        Mrs.  S. HARLOW, Counsel

        Mrs.  S. MELIA, Solicitor's clerk

        The applicant was also present.

THE LAW

        The applicant complains of being deprived of access to and

custody of her daughters D. and E.  She complains of delays in

bringing the matter before the High Court and invokes Articles 6 and 8

(Art. 6, 8) of the Convention.

1.      Article 26 (Art. 26) of the Convention

        The Government have submitted that the applicant has failed to

exhaust the domestic remedies available to her in respect of her

complaints as to the delay in the wardship proceedings, in that she

did not, for example, seek the court's directions as to expediting the

procedure or setting a time table or apply for the hearing to be heard

in London during the long vacation of 1985.

        The applicant has disputed that these options were open to her

or, if they were, that they would have been effective.

        The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which

relate to the breaches of the Convention alleged and at the same time

can provide effective and sufficient redress.  An applicant does not

need to exercise remedies which, although theoretically of a nature to

constitute a remedy, do not in reality offer any chance of redressing

the alleged breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).

        It is furthermore established that the burden of proving the

existence of the available and sufficient domestic remedies lies upon

the State invoking the rule (cf. Eur. Court H.R., Deweer judgment of

27 February 1980, Series A no. 35, p. 15, para. 26, Commission's

decision No. 9013/80, Dec. 11.12.82, D.R. 30 p. 96, p. 102).

        Having regard to the complexity of the proceedings, which

involved four of the applicant's children and a considerable number of

other parties, the Commission finds it open to doubt whether the

measures suggested by the Government would have constituted an

effective remedy which could have ensured the expedition of the

proceedings.  Similarly, the Commission has not found it established

that it would have been practicable or reasonable to have expected the

applicant to seek a hearing of the matter in London during the long

vacation, when it is not known for example whether the High Court

judge to whom the matter had been reserved was available at that time.

The Commission consequently considers that these factors are more

relevant to the examination under Article 6 para. 1 (Art. 6-1) of the

Convention of the role played by the conduct of the parties in the

course of the proceedings.  The Commission accordingly is unable to

accept that this aspect of the application be declared inadmissible

for non-exhaustion of domestic remedies.

2.      Article 6 (Art. 6) of the Convention

        Article 6 para. 1 (Art. 6-1) of the Convention provides inter alia:

        "In the determination of his civil rights and obligations

        or of any criminal charge against him, everyone is

        entitled to a fair and public hearing within a reasonable

        time by an independent and impartial tribunal established

        by law."

        In the present case, the applicant made her daughters wards of

court and applied before the High Court in wardship proceedings for

custody.  The Commission finds, in the light of previous case-law (see

e.g. Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987,

Series A no. 121, pp. 32-35, paras. 72-79, and H. v. the United Kingdom

judgment of 8 July 1987, Series A no. 120, p. 58, paras. 68-69) that

these proceedings involved the determination of the applicant's "civil

rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.  The Commission must therefore consider whether the

applicant received a hearing within a reasonable time as required by

this provision.

        According to the constant case-law of the Convention organs

the reasonableness of a delay in civil proceedings must be considered

according to the circumstances of the particular case.  Regard must

be had to the conduct of both the applicant and the competent

authorities, the complexity of the case, what is at stake in the

proceedings for the applicant and the period of delay itself (see

Eur. Court H.R., Buchholz judgment of 6 May 1981, Series A no. 42,

pp. 15-16, para. 49).  Only delays attributable to the State may

justify a finding of a failure to comply with the "reasonable time"

requirement.

        The Commission recalls that the wardship proceedings were

commenced by the applicant on 8 March 1984.  The applicant's

application for custody was however not decided by the High Court

until 27 November 1985.  The period to be taken into consideration

therefore is 20 months and 19 days.

        The Commission finds that the proceedings were significantly

complex.  They concerned four of the children of the applicant and

there were a number of parties involved, including the applicant, her

first and second husband, the Official Solicitor and the local

authority.  A considerable amount of evidence had to be collected and

filed and its assessment was a difficult task.  The Commission recalls

in this respect the compilation over five months of an independent

psychiatric report on the prospect of rehabilitation, which

necessarily involved interviews with all the parties concerned and

observation of the children.  The Commission considers that the affair

was sufficiently complex to justify the consultation of an independent

psychiatrist and notes that the decision to take this step was made by

the court with the consent of the parties.

        The Commission has examined the conduct of the parties in this

case.  As stated above, the Government have submitted that the

applicant failed to take steps to expedite the proceedings in that she

failed to seek directions from the court setting time-limits and in

that she did not seek to have the case transferred to London.  The

applicant has disputed that these measures were practical.  The

Commission has noted already that it is not known whether the High

Court judge to whom the case had been reserved would have been

available.  The Commission does however put some weight on the fact

that the applicant, as the party initiating the proceedings, formally

had the primary, though in practice not the sole, responsibility for

the conduct of the proceedings.  The Commission notes that much of the

20 months period was spent in the gathering of evidence by the

Official Solicitor and the local authority in respect of which the

applicant had no direct control.  It is apparent however that the

applicant took no step formally or informally seeking the expedition

of the proceedings and that she consented both to the decision to

instruct an independent psychiatrist and to the decision to list the

case for hearing in October-November 1985.

        In contrast, the Commission notes that the Official Solicitor

in particular expressed concern over the time taken in the proceedings

and took steps to have the case treated urgently by the court.  In

view of the fact that the Official Solicitor became involved in the

case at a relatively late stage, i.e.  May 1984, and had the task of

collating all the necessary evidence relating to the four children,

the Commission finds that he acted in the circumstances with

reasonable promptness.  As regards the local authority, the Commission

notes that it filed its evidence promptly at the beginning of the

proceedings and in responding to requests for information from the

Official Solicitor and subsequent intervening events, such as B.'s

allegations of sexual abuse, did not appear to contribute to the

length of the proceedings.  As regards the conduct of the courts, since

the longest periods of delay - i.e. caused by the instruction of an

independent psychiatrist and the fixing of the hearing after the long

vacation - were sanctioned by the agreement of the parties the

Commission considers that no criticism can be levelled at the High

Court.

        The Commission has above all had regard to the importance of

what was at stake for the applicant.  The proceedings were decisive

for the applicant's future relationship with her children and in cases

of such a kind, there is a duty to exercise exceptional diligence in

view of the risk that the lapse of time may result in the de facto

determination of the matter before the court.  There is however also a

duty to ensure that all the evidence which may be needed for the Court

to make a decision of such importance to the applicant and her

children is collected and put before the Court.

        The Commission finds that, having weighed all the relevant

circumstances, the proceedings complained of did not exceed a

"reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention.

        It follows that this complaint is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.      Article 8 (Art. 8) of the Convention

        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 applicant has complained of the decision of 27 November

1985 refusing her custody of and access to her children D. and E. and

of the length of time taken in reaching this decision.  She has also

complained of the decision of 24 July 1987 taken to free D. and E. for

adoption by Mr. and Mrs. L.

i.      As regards the decision of 27 November 1985, the Commission

finds, in accordance with its established case-law, that the decision

to refuse custody of D. and E. to the applicant and to terminate

access 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. W. v. the United Kingdom judgment of 8

July 1987, loc. cit., 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 the applicant made her daughters

wards of court, following the proceedings in which care orders had

been granted by the magistrates court.  The High Court refused her

application for custody of D. and E. in order not to disrupt their

placement with the foster-parents with whom they had lived for a

considerable time.  The Commission finds that these decisions, made

pursuant to the Court's wardship jurisdiction, were "in accordance

with the law" and for the legitimate aim of protecting D.'s and E.'s

health and rights.

        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 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, which are in principle

in a better position to make an initial assessment of the necessity of

a given interference. It is not the Commission's 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 has accordingly examined the reasons given in

the judgment of the Court on 27 November 1985.

        The Commission recalls in this respect that the judge found

that the children had been with their foster-parents in the case of D.

for two years and E. for nearly one year and that they were stable and

secure in this placement.  He found it established on the basis of the

reports made with respect to D. and E. that it was in their best

interests to remain in their foster-home.  The Commission finds that

these reasons were "relevant" and "sufficient" for the decisions in

question and were based on a thorough and careful investigation of all

the circumstances of the case.

        The Commission also recalls that the applicant was present at

the hearing 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. 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 health and for the

protection of the rights of others.

        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.

ii.     The Commission has also considered whether the length of the

proceedings itself failed to show respect for the applicant's family

life contrary to Article 8 (Art. 8) of the Convention.  The Commission

recalls the judgment of the European Court in H v. the United Kingdom

(loc. cit., pp. 27-28, paras. 87-90) where delays by the authorities

resulted in the proceedings taking two years and seven months, leading

to a de facto determination of the issues by the mere effluxion of

time, and was found to constitute a violation of Article 8 (Art. 8)

of the Convention.

        The Commission has found in the present case however that the

delay of more than 20 months did not exceed a reasonable time within

the meaning of Article 6 para. 1 (Art. 6-1).  The Commission also

notes that the   evidence of the local authority and Official

Solicitor from an early stage of the proceedings was firmly against D.

and E. being returned to the applicant.  It is therefore not

established in the circumstances of the present case that the length

of time taken in the proceedings led to a de facto determination of

the issues.  It also finds that this aspect of the complaint fails to

disclose a violation of Article 8 (Art. 8) of the Convention.

        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.

iii.    The Commission has lastly examined the decision of 24 July

1987 to free the applicant's children for adoption.  It notes in

particular the applicant's concern in relation to the allegation made

by a 13 year girl that Mr. L., the foster-father, had sexually abused

her.

        The Commission considers that the decision which freed D. and

E. for adoption and dispensed with the applicant's consent to adoption

constituted an interference with the applicant's right to respect for

her family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the

Convention.   Having regard to the principles and case-law outlined

above under (i), the Commission has considered whether this

interference is justified under Article 8 para. 2 (Art. 8-2)

of the Convention.

        The Commission finds that the decision, taken by the High

Court in the exercise of its wardship jurisdiction and in conformity

with adoption legislation, was in accordance with the law and for the

legitimate aim of protecting D.'s and E.'s health and rights.

        As regards the "necessity" of the decision, the Commission has

examined the reasons given in the judgment and finds them "relevant"

and "sufficient".  It recalls that the judge reviewed the evidence of

sexual abuse but came to the conclusion that the allegations were

unsubstantiated.  It notes the judge's finding that the children were

safe and secure in a good foster-home and that a freeing order would

promote and safeguard their future.

        The Commisson therefore finds, bearing in mind the margin of

appreciation enjoyed by the domestic authorities, that the

interference was justified under Article 8 para. 2 (Art. 8-2) as being

"necessary  in a democratic society" for the protection of health and

for the protection of the rights of others.

        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       Acting President of the Commission

         (H.C. KRÜGER)                        (J.A. FROWEIN)

 

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