AS TO THE ADMISSIBILITY OF
Application No. 19527/92
by M.C. against the United Kingdom
The European Commission of Human Rights sitting in private on
15 May 1992, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 13 July 1991 by
M.C. against the United Kingdom and registered on 11 February 1992
under file No. 19527/92;
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 1944 and resident in
Blackburn. She is represented before the Commission by Mr. Turner, a
solicitor practising in Blackburn. The facts as submitted by the
applicant may be summarised as follows.
On 5 April 1980 the applicant gave birth to a son C.
The applicant's husband left the matrimonial home on or about
1986.
On 2 February 1989 the applicant went to pick up her son from
school. She was called into the headmaster's office and told that her
son had been taken into care, but no reasons were given. In the course
of the evening, a protection order was served on the applicant by two
officers of the NSPCC (National Society for the Prevention of Cruelty
to Children).
On 3 February 1989 the applicant was taken to Blackburn police
station for questioning when, for the first time, it became clear that
her son had been removed because allegations of sexual abuse were being
made against her.
On 6 February 1989 the applicant was told to attend the local
Magistrates Court on 9 February 1989, when an Interim Order was made
for 28 days, with the final hearing fixed for April. On 26 April 1989
the magistrates found the allegations of sexual abuse to have been made
out, and a Care Order was made. The applicant states that her lawyer
told her that no appeal was possible in respect of the Care Order. It
subsequently transpired that an appeal had been possible since
31 August 1988, when the Children and Young Persons Act 1969 was
amended to give an appeal to the parent of a child taken into care.
Criminal proceedings were subsequently begun, alleging gross
indecency. These proceedings were discontinued when the Crown
Prosecution Service gave notice on 22 May 1989 that they did not intend
to proceed with the charges.
The applicant regarded the decision to discontinue the charges
as a vindication of her denial of any sexual abuse.
The applicant only saw her son three times after he was taken
into care. The Social Services Department decided to terminate access
because the applicant was not co-operating. In particular the
Department concluded that until the applicant accepted that there had
been abuse of a sexual character, it could not help the applicant to
be rehabilitated with her son.
On 6 June 1989 the applicant introduced an application before the
Commission, alleging, inter alia, that her son had been taken into care
contrary to Article 8 of the Convention. By decision dated
13 December 1989, the Commission declared this application, registered
under No, 15350/89, inadmissible. The applicant's complaints under
Article 8 of the Convention were rejected on the ground that since she
had not appealed against or applied for discharge of the care order and
also had not appealed against the termination of access she had failed
to exhaust domestic remedies as required by Article 26 of the
Convention.
The applicant withdrew her appeal against the termination of
access before the Juvenile Court on 24 April 1990.
The local authority decided to place C. for adoption and applied
to the County Court for an order freeing him for adoption.
On 5 July 1991 the County Court judge made the order pursuant to
the provisions of the Adoption Act 1976. In his judgment, the judge
criticised the "blinkered" approach taken by the authorities and the
shortcomings in the procedure adopted by the Social Services. He
stated that he had grave reservations as to the correctness of the
original findings that sexual abuse had taken place and commented that,
unwittingly or otherwise, C. had been encouraged and sustained in the
belief that he had been sexually abused without the authorities making
any attempt to evaluate the applicant's credibility. The judge had
regard to the length of the time which had elapsed since the applicant
had last seen C., i.e. 22 months, and the expressed preference of C.
to be adopted. He held that C.'s greatest need was for stability and
the security of a permanent home, which adoption would provide. He
regretted that true or false, the allegations of sexual abuse remained
an insurmountable obstacle to C. resuming a natural and loving
relationship with the applicant. He concluded that adoption was in C.'s
best interests and dispensed with the applicant's consent.
COMPLAINTS
The applicant complains that her son has been taken into care and
freed for adoption contrary to Article 8 of the Convention.
THE LAW
The applicant complains of a violation of Article 8 (Art. 8) of
the Convention in respect of the placement of her son in care and the
decision freeing him for adoption.
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."
i. Insofar as the applicant complains that her son was placed in
care, the Commission recalls that this complaint was previously
considered in connection with the applicant's first application to the
Commission, No. 15350/89.
The Commission must therefore determine whether the present
application is substantially the same as the one which it already has
examined or whether this application contains relevant new information
within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the
Convention.
The Commission recalls that the applicant's complaints were
rejected for non-exhaustion of domestic remedies since she had not
appealed against the care order or applied for its discharge. Since
then, the applicant's son was freed for adoption in proceedings in
which the judge expressed criticism of the earlier proceedings and had
doubts concerning the findings of sexual abuse. However, the
Commission finds that this cannot constitute new and relevant
information within the meaning of Article 27 para. 1 (b) (Art. 27-1-b).
These proceedings do not affect the basis of the Commission's finding
of non-exhaustion and indeed indicates that there were substantial
grounds on which a care order could have been appealed or its discharge
sought.
The Commission accordingly finds that this complaint is
substantially the same as that in the previous application and in these
circumstances must be rejected as inadmissible under Article 27 para.
1 (b) (Art. 27-1-b) of the Convention.
ii. Insofar as the applicant complains of the freeing of her son for
adoption, the Commission recalls that this step was taken following its
previous decision in No. 15350/89 and consequently the Commission may
proceed to examine this aspect of the application.
The Commission finds that the decision to free C. for adoption
constitutes 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. The Commission must therefore determine whether this
interference was justified under the terms of Article 8 para. 2
(Art. 8-2), i.e. whether it was in accordance with the law, pursued one
or more of the legitimate aims set out in paragraph 2 and whether it
was 'necessary in a democratic society' for any of those legitimate
aims.
The Commission recalls that C. was freed for adoption by the
County Court under the provisions of the Adoption Act 1976 and that the
County Court made the order as being necessary in C.'s interests. The
Commission accordingly finds that this decision was "in accordance with
the law" and for the legitimate aim of protecting C.'s health and well-
being.
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.
When determining whether or not the freeing of C. for adoption
and terminating the applicant's access to him was necessary in his
interest, 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 has accordingly examined the reasons given in the
judgment of the County Court on 5 July 1991.
The Commission recalls that the County Court judge found that the
adoption was in the best interests of C. He had regard to C.'s wishes,
the length of time which had elapsed and the fact that, true or false,
the allegations of sexual abuse remained an unsurmountable obstacle to
C. resuming a relationship with the applicant.
The Commission finds that these reasons were "relevant" and
"sufficient" for the decisions in question.
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 interests (see e.g.
Eur. Court H.R., W v. the United Kingdom judgment of 8 July 1987,
Series A no. 121, 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 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, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRUGER) (C.A. NORGAARD)
Full & Egal Universal Law Academy