MALLARD v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 36937/97

                      by Mary MALLARD

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

           Mrs   J. LIDDY, President

           MM    M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 20 February 1997

by Mary MALLARD against the United Kingdom and registered on

18 July 1997 under file No. 36937/97;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1963 and currently

resident in Poole, Dorset. She is unrepresented.

     The facts as submitted by the applicant can be summarised as

follows

A.   Particular circumstances of the case

     The applicant is the mother of 3 boys: J, born in 1989; D, born

in 1991 and A, born in 1993. J has a different father to D and A. The

applicant has never been married and neither father has ever had

parental responsibility.

     Social services became involved with the family in 1989 because

of the applicant's severe drinking problems. She is an alcoholic and

was identified as being an excellent mother when sober but unable to

protect the children from harm when drunk. After J's birth in 1989 the

applicant was found drunk in public places on several occasions. Due

to concern for J's well-being care proceedings were initiated and J was

removed from the applicant's care. The applicant then agreed to

counselling and treatment for her drinking and after improvement was

shown J was returned to her care in Spring 1990 subject to a two year

supervision order.

     Further serious drink related incidents occurred in 1992 and

1993. Care proceedings were initiated in 1993 resulting in the children

being subject to interim care orders. The children remained at home

with the applicant with considerable assistance from the local

authority. A, the youngest child, was made the subject of an interim

care order immediately after his birth in 1993. The applicant again

agreed to treatment which appeared to be very successful. The guardian

ad litem was therefore able to recommend supervision orders for all

three children and these were made in late 1993.

     Further problems were experienced in late 1994 leading the

children to be taken into foster care in December 1994 subject to

interim care orders. The children have remained in foster care since

December 1994 and have had 18 different foster placements. Full care

orders were made in favour of Dorset County Council in March 1995 which

the guardian ad litem supported and which the applicant did not oppose.

However, she did oppose the care plan for adoption. A couple was under

assessment in 1995 as prospective adopters of the children but this

assessment was terminated apparently because of the applicant's

objections.

     The applicant has attempted to overcome her drinking problems on

several occasions. In 1990 she attended the "Hannah project" where she

did not drink. However, after leaving the project she relapsed into

drinking within a month, leading J to be taken from her care. In

September 1994 she attended the Sedman unit but suffered three relapses

into drinking.

     The application for a freeing order was initially heard by the

Bournemouth county court in August 1995 when it was adjourned pending

reports on the applicant's progress with addiction therapy and

investigation into the causes of her alcoholism. In his report dated

14 August 1995 the guardian ad litem felt that if there was no clinical

reason, like pre-menstrual syndrome, for the applicant's condition then

he would have to recommend that the children's best interests lay with

a permanent substitute family.

     The applicant attended treatment at Broadway Lodge from

August 1995 until October 1995. Her discharge reports were encouraging.

She also enjoyed structured contact with each child. By February 1996,

as noted by the guardian ad litem in his report of 12 February 1996,

it appears that the local authority were hopeful about the future and

even considered withdrawing the application for a freeing order.

However, it appears that in the same month the applicant had a relapse

which she said was caused by an alleged anal rape carried out on her

by her employer in early February 1996. The applicant states that she

was open with social services about her relapse.

     The final hearing took place in August 1996 in Bournemouth county

court before Her Honour Judge McKinney where the applicant was

represented. A transcript of the judgment is included in the

application papers but is undated. The court considered the history of

the applicant's drinking problems which was marked by periods of

sobriety followed by relapses and attention seeking behaviour. However,

the applicant and her parents stated that the applicant was working

hard to overcome her drinking problems. There were also psychiatric

reports from two consultant doctors before the court, which reviewed

the history of relapses by the applicant but made reference to signs

of some positive changes, including the applicant's recognition that

she is an alcoholic and requires treatment.

     In his fifth report dated 26 June 1996 the guardian ad litem said

that, in light of the complex and conflicting evidence in respect of

whether or not the applicant had reverted to drinking, he was unable

to give a clear view as to whether or not the freeing order should be

made. However, he did feel that a decision should be made about the

children's future sooner rather than later. Additionally, he stated

that the court's finding regarding the rape allegation would be of

considerable importance.

     In respect of the rape allegation the judge found that the

appellant's evidence was confused. The rape was denied by the alleged

perpetrator and the court found that the applicant's allegations were

unfounded and an excuse for her relapse into drinking.

     Judge McKinney found that the applicant was unable to put the

children's needs first because of her alcoholism. The children were

unsettled and although they loved their mother, needed the stability

of adoption. J wished to stay with his mother as did D to a lesser

extent. Judge McKinney found that adoption would be in the best

interests of all three children and that, on an objective test, the

applicant was withholding her consent unreasonably. The judge therefore

made freeing orders on 23 August 1996 dispensing with the applicant's

consent to adoption and giving leave to the local authority to

terminate contact.

     The applicant, acting in person, attempted to seek an extension

of time to appeal the order of HHJ McKinney. Her application was

refused by the Court of Appeal on 17 December 1996.

     The children remain in short term foster care. The applicant

states that she no longer drinks alcohol. She has contact with the

children once every two months and claims that they wish to return to

live with her. Ultimately she would like the children to be

rehabilitated to her but is prepared for this to happen gradually.

B.   Relevant domestic law

     Section 6 of the Adoption Act 1976 states:

     "In reaching any decision relating to the adoption of a child a

     court shall have regard to all the circumstances, first

     consideration being given to the need to safeguard and promote

     the welfare of the child throughout his childhood; and shall so

     far as practicable ascertain the wishes and feelings of the child

     regarding the decision and give due consideration to them, having

     regard to his age and understanding."

     Section 16 of the Adoption Act 1976 states:

     "(1) An adoption order shall not be made unless -

     ...

           (b)   in the case of each parent or guardian of the child

           the   court is satisfied that -

           ...

           (ii)  his agreement to the making of the adoption order

           should be dispensed with on a ground specified in

           subsection (2)

     (2)   The grounds mentioned in subsection (1)(b)(ii) are that the

           parent or guardian

           ...

           (b)   is withholding his consent unreasonably."

     Section 20 of the Adoption Act 1976 states:

     "(1)  The former parent, at any time more than 12 months after the

           making of the order under section 18 when

           (a)   no adoption order has been made in respect of the

           child and

           (b)   the child does not have his home with a person with

           whom he has been placed for adoption

           may apply to the court which made the order for a further

           order revoking it on the ground that he wishes to resume

           parental responsibility

     (2)   While the application is pending the adoption agency having

           parental responsibility shall not place the child for

           adoption without the leave of the court

     (3)   The revocation of an order under section 18("a section 18

           order")operates

           (a)   to extinguish the parental responsibility given to the

                 adoption agency under the section 18 order

           (b)   to give parental responsibility for the child to

           (i)   the child's mother;

           (ii)  and where the child's father and mother were married

                 to each other at the time of his birth the father

     (3)(A)      Subject to subsection (3)(c) the revocation does not

           (a)   operate to revive

           (i)   any order under the Children Act 1989 or

           (ii)  any duty referred to in section 12(3)(b);

           extinguished by the making of the section 18 order

     (4)   Subject to subsection 5 if the application is dismissed on

           the ground that to allow it would contravene the principle

                 embodied in section 6

           (a)   the former parent who made the application shall not

                 be entitled to make any further application under

                 subsection (1)in respect of the child and

           (b)   the adoption agency is released from the duty of

                 complying further with section 19(3) as respects that

                 parent

     (5)   Subsection (4)(a) shall not apply where the court which

           dismissed the application gives leave to the former parent

           to make a further application under subsection (1), but

           such leave shall not be given unless it appears to the

           court that because of a change in circumstances or for any

           other reason it is proper to allow the application to be

           made."

     In re G (A Minor)(Adoption:Freeing order),[1995] 2AER 534, the

House of Lords held that although the revocation of a freeing order

gave the mother full and unfettered parental responsibility this could

be allied with the provisions under the Children Act 1989 so that if

the parent could not offer a home herself the welfare of the child

could be protected by making the revocation conditional upon such

consequential orders as were appropriate under the Children Act 1989

including a care order pursuant to section 31 Children Act 1989.

COMPLAINTS

     The applicant invokes Article 8 of the Convention, complaining

in particular that the local authority did not act in the best

interests of the children and did not give sufficient weight to their

views. She wishes to prevent the adoption of her children.

THE LAW

     The applicant complains of decisions taken in respect of freeing

her children for adoption. She invokes 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."

     It is clear that the order freeing the applicant's children for

adoption represents an interference with the applicant's right to

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

Convention. The interference must therefore be considered within the

ambit of Article 8 para. 2 (Art. 8-2) to ascertain whether or not the

interference was "in accordance with the law", "necessary in a

democratic society" and pursues the aims listed in paragraph 2 of

Article 8 (Art. 8) (eg. Eur. Court HR, W. v. the United Kingdom

judgment of 8 July 1987, Series A no. 130, para. 60).

     There is no suggestion that the decision made by Her Honour Judge

McKinney was not in accordance with the law. The judge applied the

principles set out in section 6 of the Adoption Act 1976 and found

that, bearing in mind their own wishes, adoption would be in the best

interests of the children. Additionally, applying the objective test

of reasonableness, as dictated by case law, the judge found that the

applicant was withholding her consent unreasonably.

     The Commission is also of the opinion having regard to the

court's judgment that the interference had the legitimate aim required

under Article 8 para. 2 (Art. 8-2), namely the interests of the

children, and as such, may be regarded as having been effected for "the

protection of health or morals" or for the "protection of the rights

and freedoms of others".

     In respect of whether or not the interference was necessary in

a democratic society, the Commission recalls that each Contracting

State must be permitted a margin of appreciation in determining whether

or not a particular action is necessary (eg. Eur. Court HR, Olsson v.

Sweden judgment of 24 March 1988, Series A no. 130, para. 67).

     The Commission does, however, retain the jurisdiction to enquire

as to whether the interference is based upon "sufficient and relevant

reasons" (eg. Eur. Court HR, Olsson v. Sweden judgment, op. cit.,

para. 68). It is clear that the decision to remove the children from

the care of their mother permanently was a difficult one to make. The

reports of the guardian ad litem and two consultant psychiatrists

reveal considerable sympathy towards the applicant's difficulties.

Additionally, the local authority had worked assiduously with the

applicant from 1989 onwards, providing several treatment programmes to

deal with her alcoholism. However, despite the assistance given to the

applicant and the sporadic improvements she made, the court felt that

bearing in mind the history of the case, the applicant would be unable

to sustain the improvement in the long term or prioritise the interests

of the children.

     The applicant has complained that the views of the children had

not been listened to sufficiently. The Commission notes first, that the

children were aged 7, 4 and 3 respectively when the freeing order was

made and thus their views would inevitably carry less weight and

secondly, that the guardian ad litem produced no fewer than five

reports regarding the welfare of the children. In addition, it was

accepted by all involved with the case that the children loved the

applicant and would wish to live with her if she could provide a stable

environment. However, the court concluded that she would be unable to

provide such an environment.

     The Commission has also considered whether the manner in which

the court came to make the freeing order appears to reveal any evidence

of unfairness or procedural irregularity (eg. Eur. Court HR, W. v. the

United Kingdom judgment of 8 July 1987, Series A no. 121 paras. 62-64).

The applicant was represented throughout the hearing and was able to

test the evidence brought against her. The applicant complains that the

case was excessively focussed on herself rather than her children.

However, the Commission notes that the central issue in the case was

whether or not the applicant would be able to overcome her alcoholism

sufficiently to provide a safe and secure home for her children. The

reason for her relapse into drinking in February 1996, which the

applicant attributed to a serious sexual assault, was of crucial

importance, as was recognised, in particular, by the guardian ad litem.

Consequently, there appears to be no evidence of procedural

irregularity or unfairness in respect of the manner in which the court

came to its decision.

     In cases involving the removal of children from their natural

parents, the Commission must examine carefully the authorities'

attempts at rehabilitation, pursuant to the case of Johansen v. Norway,

(Eur. Court HR, judgment of 7 August 1996, Reports 1996-III no. 13).

In this instance it appears that very considerable attempts were made

to keep the family intact. Social services had worked extensively with

the family since 1989 with the aim of keeping the family together.

Indeed, in his report of 12 February 1996, the guardian ad litem noted

that the local authority believed that, at that stage, prior to the

applicant's relapse into drinking prompted by the alleged sexual

assault, there was scope for consideration of rehabilitation of the

children with their mother. In his reports the guardian ad litem

concluded that the local authority had done everything which it could

do to encourage rehabilitation.

     The Commission also notes that procedural safeguards are provided

by the fact that the applicant now appears to be entitled to apply for

a revocation of the care order pursuant to the case of re G (A

Minor)(Adoption:Freeing order)[1995] 2AER 534. The applicant states

that she is continuing to make progress in respect of her alcoholism

and has maintained contact with her children. Given the lack of success

in finding prospective adopters for three brothers, it would appear

that the possibility of rehabilitation with the applicant remains open.

     Consequently, the Commission finds that, bearing in mind the

margin of appreciation afforded to Contracting States, the interference

in this case may be regarded as necessary in a democratic society for

the protection of rights of others, namely the children of the

applicant. It therefore follows that the application must be regarded

as manifestly ill-founded pursuant to Article 27 paragraph 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber

 

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