AS TO THE ADMISSIBILITY OF
Application No. 23546/94
by M. L.
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 28 June 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
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 14 September 1992
by M. L. against the United Kingdom and registered on 28 February 1994
under file No. 23546/94;
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 residing in Lancashire and he
was born in 1952. He is represented before the Commission by Felix
Moss, a solicitor practising in Lancashire.
The facts as submitted by the applicant may be summarised as
follows.
The applicant is the father of five children, M (a boy born
16 March 1987), J (a girl born 29 April 1988), R (a boy born
15 September 1989), B (a boy born 25 August 1992) and JL (a boy born
15 October 1994).
The applicant's wife first came to the attention of social
services in 1985 when she was a patient in a hospital in Preston and
there was concern about her erratic behaviour.
On 18 March 1987 (two days after M's birth) a case conference was
held to discuss the applicant's wife's ability to care for M and
concluded that there was no evidence of risk to the child. During
subsequent contacts with a health visitor the applicant denied that he
was M's father. The health visitor noticed developmental delays in M
and referred the family to social services. Records indicate that the
applicant repeatedly requested financial assistance from social
services and complained about his wife's "bizarre" behaviour. The
applicant and his wife separated for a while about this time.
Following a case meeting, held on 15 April 1988 at the request
of a health visitor from a Lancashire hospital, the family was given
financial assistance and M was given a place at a day nursery.
J was born on 29 April 1988. A case conference was held on
29 May 1988 where anxiety was expressed regarding J's care as she was
losing weight and not thriving. The applicant and his wife both
subsequently alleged that each other was at fault, the applicant
claiming that his wife force fed J and could not cope, while the
applicant's wife claimed that the applicant constantly criticised her.
The applicant then went to court in an unsuccessful attempt to obtain
custody of the children in case of a separation.
On 17 May 1988 J was admitted to hospital in light of her falling
weight. Due to unfit living conditions in the family home M and J were
received into voluntary care but were discharged from care on
8 July 1988. The applicant and his wife were married on 9 July 1988.
On 19 July 1988 J was re-admitted to hospital but was
subsequently discharged by the applicant's wife against medical advice.
On 18 August 1988 J was again admitted to hospital. She subsequently
gained weight, was discharged, lost weight and was readmitted on
25 August 1988 where she remained for a thorough assessment. Though the
applicant and his wife did not cooperate with social services to enable
an assessment to be carried out, at the next case conference it was
decided that J could go home. After further case conferences in
December 1988 and February 1989 the children's names were removed from
the risk register because of satisfactory progress.
By 1 March 1989 the applicant and his wife had again separated.
On 10 March 1989 social services closed the family's file but input on
the children's progress was to be received from the day nursery which
both children were attending.
R was born on 15 September 1989. The applicant again claims that
his wife could not cope and would not let him help. On 26 October 1989
the applicant's wife turned up at her solicitor's office at 3.00pm
claiming that she had not fed R since the morning as she had no money.
The applicant's wife then went to live in a homeless unit for a while
and the applicant requested social services to take the children into
care as his wife could not look after them.
M and J continued to attend the day nursery. The nursery staff
noted that M's behaviour was disruptive and dangerous for the other
children. It was also reported that he had begun to exhibit "precocious
sexual awareness and overtly sexual behaviour and actions". J was
reported as a happy child although concern was expressed when she
sustained a suspected fractured collar bone and she was not taken for
medical attention for several days. In March 1991 she too was also
reported as exhibiting sexual behaviour and had alleged that she was
sexually abused by her father.
Interviews by social services with M and J followed. During his
interview M repeated the sexual behaviour demonstrated previously
though J revealed little of note. Place of Safety Orders were
subsequently obtained and in April 1991 M was placed in Easington Walk
Children's Home (his behaviour and language being sufficiently anti-
social as to prevent his placing in foster care) and J and R were
placed with foster parents. Neither of these three children have since
been returned to their parents.
On 29 April 1991 J made further allegations of sexual abuse to
the day nursery staff and on 30 April 1991 the applicant made
allegations in this respect against his wife. On 2 May 1991 M and J
were again interviewed by social services and J gave a demonstration
of moving in a sexual manner.
On 10 May 1991 wardship proceedings were commenced by Lancashire
County Council ("the local authority") in the Family Division of the
High Court (Preston District Registry), pursuant to that court's
inherent jurisdiction to make a child a ward of court.
On 13 May 1991 M was reported as having referred to games he had
played with his father of a sexual nature and on 16 May 1991 social
services received information regarding a previous allegation of child
abuse involving the applicant.
On 16 May 1991 Mr. Justice Hollings, having heard counsel for all
parties involved, made the three children (M, J and R) wards of court.
Interim care and control of the children was to remain vested in the
local authority which was given leave to continue the existing
placements of the children. The applicant and his wife were to have
supervised access to the children twice a week for two hours. Any
further reports or affidavits were to be served by the local authority
within seven days and the matter was relisted for hearing on
23 May 1991.
At a directions hearing in or around this time, a social worker
apologised to the court as it had recently come to the attention of the
local authority that the same solicitors had been instructed by the
applicant's wife and the local authority for a couple of months. The
applicant claims that the local authority had been previously aware of
this and it appears that the applicant's wife then changed solicitors.
On 23 May 1991 Mr Justice Hollings, having heard Counsel for all
parties, continued the wardship, care and access orders. The parties
were ordered to instruct Clinical Psychologists. The local authority
was given leave to have the wards examined by a Child Psychologist and
to carry out a family assessment. Time limits were set for the filing
of further affidavits by the parties.
During June and July 1991 M and J were assessed by a Clinical
Psychologist and the subsequent report (dated 24 January 1992) was
inconclusive as to the allegations of sexual abuse.
During September and October 1991 the applicant and his wife
underwent a family assessment by personnel from social services and
from the Society for the Prevention of Cruelty to Children. The
assessors' conclusions, reported in a Family Assessment Report dated
14 February 1992, stated that working with the couple proved extremely
difficult because of their difficulties in remembering and
understanding issues. The information gained from them did not make
sense to the assessors and appeared untrue. It was unclear to the
assessors whether the applicant and his wife lived in fantasy worlds
or were simply trying to impress them. In conclusion, the assessors
were unable to comment firmly on the parenting abilities of the
applicant and his wife due to the difficulties encountered during the
sessions with them.
On 29 October 1991, the local authority applied, on an ex-parte
basis, for leave to place M with the foster parents who at the time
also cared for R and J, basing the application on the affidavit
evidence of the key social worker in the case which, inter alia, noted
M's dramatic improvement in care and recommended such placement. On
30 October 1991 District Judge Walker of the Family Division of the
High Court (Preston District Registry), granted the local authority's
application on an interim basis. This order was confirmed on
6 November 1991 by District Judge Walker having heard the solicitors
for the parties. The existing access arrangements (twice weekly at the
day nursery) were to continue until further order.
On 15 January 1992 Judge Walker, having heard the parties
solicitors, ordered the filing of further affidavits by the parties and
the setting down of the case for hearing before a judge of the Family
Division of the High Court. The applicant filed an affidavit in
January 1992. Further directions were given by Judge Walker on
20 May 1992 for the filing of affidavits by 22 May 1992.
On 22 May 1992 numerous reports and assessments of the parents
and the children were filed in court. These included the Psychologist's
report dated 24 January 1992, the Family Assessment Report dated
14 February 1992 together with affidavits of two social workers
(involved, inter alia, in supervising the access visits) and of the key
social worker. The latter affidavits were negative as regards the
parenting abilities of the applicant and his wife.
As a result of the concerns expressed in the above-mentioned
affidavits, a planning meeting was held on 17 June 1992 between the key
and assistant social workers of the local authority and the authors of
the Family Assessment Report to discuss the future plans for the
children. It was agreed at this meeting that a permanent home for the
children away from their parents was to be recommended. It was noted
that the services of a Court Welfare Officer or a Guardian ad litem
would be required by the court to assist it in its decision in this
respect. Further affidavits were filed by the key social worker and
three health visitors (on 18 September 1992) requesting the appointment
of a Guardian ad litem and recommending a permanent home for the
children away from their parents.
On 2 July 1992 a further case conference was held because the
applicant's wife was now expecting a fourth child. It was decided that
a placement of the applicant, his wife and the new baby in a supervised
residential setting would provide an additional opportunity to fully
assess the parenting skills of the applicant and his wife. B was born
on 25 August 1992. Having unsuccessfully attempted supervision at home,
on 24 September 1992 the local authority admitted the applicant, his
wife and B to Cheshire House for a 12 week assessment.
However, in view of the applicant's and his wife's threats to
leave Cheshire House, the local authority made an application for a
care order for B. On 20 October 1992 the Hyndburn Magistrates Court
made an interim care order under the Children Act 1989 ("the 1989 Act")
in relation to B. The following day the applicant left Cheshire House.
The applicant subsequently attempted to reconcile with his wife
but on 10 November 1992 the applicant's wife filed for divorce claiming
that the applicant kept the family unnecessarily and continuously short
of money, that he failed to show her emotional support and was absent
from the family home for periods of time without explanation.
On 10 November 1992 Mr Justice Ewbank in the Family Division of
the High Court (Preston District Registry), having heard Counsel for
all parties, declared the wardship discharged by operation of law (due
to the coming into force of the 1989 Act). As regards the three older
children, he declared a deemed care order to be in operation since
13 October 1992 pursuant to the 1989 Act. In order to speedily and
definitively deal with the question of those three children's future
care under the 1989 Act, the applicant's wife was requested to
undertake to the court to issue proceedings for residence orders under
that Act. All documentation filed with the court to date was to be used
in the subsequent proceedings. An order was made for the appointment
of a Guardian ad litem.
The applicant's wife lodged the applications for residence orders
in relation to the three older children on 10 November 1992 (her
detailed supporting affidavit was filed later).
On 25 and 27 November 1992 the applicant's wife threatened
suicide and on 27 November 1992 she requested foster care for B as she
could no longer cope. The applicant's wife also requested psychological
and psychiatric assessments.
On 9 December 1992 the applicant applied for the family and
divorce proceedings to be transferred outside of Lancashire as he
claimed he could not get a fair hearing in Lancashire due, inter alia,
to the alleged prejudice of social services.
On 11 December 1992 a report, detailing recent developments
mainly in relation to B, was filed in court by Ms. Wright of social
services. That report noted that on the evidence to date, the applicant
had little commitment to B and that it would be of no benefit to
continue his access visits with B. This report also referenced the
applicant's wife's disorganisation, emotional instability, her wavering
commitment to B, her lack of attention to safety, her tendency towards
aggression and her mood swings and concluded that the risks of leaving
B in the sole care of the applicant's wife would be too great. The
report recommended a care order and placement of B with foster parents.
On 15 December 1992 the Accrington Magistrates Court extended the
interim care order in favour of the local authority in relation to B
until 12 January 1993 and B was placed with foster parents.
On 23 December 1992 a District Judge of Blackburn County Court
consolidated all outstanding applications concerning the family,
ordered the applicant and his wife to file further affidavits within
fourteen days and adjourned the matter to January 1993 for further
directions. The applicant's wife's affidavit (dated December 1992,
signed by her and submitted by the applicant to the Commission)
repeated detailed allegations of sexual abuse of the children by the
applicant (made previously to the local authority and social services).
On 12 January 1993 a District Justice at Blackburn County Court,
inter alia, continued the interim care order in relation to B, ordered
that the consolidated proceedings be transferred to the High Court
(insofar as they were not already in that court), and declared, on an
interim basis, that parental access continue on a once a week basis.
The matter was adjourned until February 1993 for further directions.
The applicant completed his own detailed statement on
9 February 1993 and in February 1993 the District Judge at Blackburn
County Court made further interim orders and directions.
Subsequently, further detailed reports dated 17 and
22 February 1993 from the Practice Manager (Child Care) of social
services and from social workers were filed in court. As regards the
three oldest children, the reports recommended, inter alia, long term
placement together without parental access. As regards B the reports
recommended adoption on his own, without parental access, with indirect
and infrequent access to his siblings and with one relinquishment
access session for each parent.
On 19 March 1993 the Guardian ad litem finalised her detailed
report on the family. She had conducted personal interviews with, inter
alia, the applicant, his wife, the three oldest children, numerous
social workers, day nursery nurses, health visitors and teachers. She
read family case files from 1988 and the numerous statements made in
the course of the proceedings by the family and others. As regards the
applicant the Guardian reported that the applicant wanted to be totally
reconciled with his wife and to have his four children live with them.
As regards the applicant's wife the Guardian reported her thoughts
disordered, her short-term memory weak and that she did not appear to
be willing to talk about her children. The applicant's wife had moved
back in with the applicant but only, according to his wife, as a
temporary measure. The applicant's wife wanted the children back but
to stay with her only.
According to the Guardian, R expressed reluctance to attend
access visits with his parents. M and J indicated their wish to
continue living with their foster parents. As regards the effects of
any future change, it was noted that B was still very young. A change
from foster parents was not to be recommended in relation to R. J had
more of a bond with her parents as she was older and thus a permanent
move to foster parents would have to be handled carefully. M was a more
difficult case though he appeared to have developed a strong sense of
trust in his foster parents.
The report went on to assess in great detail the relevant
characteristics of the children and any harm suffered to date
(including summarising the children's references to inappropriate
sexual behaviour of the applicant and the applicant's wife's specific
charges against the applicant in this respect). The report also dealt
with the parents capabilities, the possible orders available to the
court, the probable impact of such orders on the children and the care
plan recommended by social services. The Guardian recommended that the
care orders remain in relation to each child and that the local
authority should be given the power to immediately refuse access to B,
and to refuse access to the three older children after six months
during which period the access visits should gradually diminish.
The consolidated proceedings were heard by Judge Brown of the
High Court at Preston on 12-15 July 1993. Two preliminary matters arose
at the hearing. In the first place, it emerged that the local authority
was represented at the hearing by a barrister who had represented the
applicant's wife at a previous directions hearing. Having heard the
submissions of the parties in this respect the judge found that the
matter was not serious enough to warrant adjourning the hearing. The
second matter related to the content of the report of Ms. Wright which
was filed on 11 December 1992. The judge found that her statement
consisted of the evidence of three other social workers involved in the
case and, while it was confirmed by Ms. Wright that she had verified
the information contained therein with those three social workers, that
this manner of presenting evidence was misleading and that in future
individual affidavits should be filed.
On 15 July 1993 judgment was delivered.
As regards the applications for residence orders and the care
order in relation to B, Judge Brown noted that the history of the
family was one of extreme dysfunction, which situation was not likely
to change in the future. The court noted that there was still some
doubt as to the relationship between the applicant and his wife, that
when the applicant and his wife were together it was harmful for the
children but when they were apart the applicant's wife could not cope
with the children. It was noted that the applicant had been of little
assistance to his wife in this respect. The applicant's presence in the
home was expressed by the court as being "in doubt" in light of the
allegations as to his sexual behaviour and, though not making any
particular findings in this respect, it was noted that the parents had
failed to protect the children from such matters. The judge noted
specifically that if B were to be returned to his parents, he would
risk emotional harm.
Therefore, the applications for residence orders in relation to
the three older children were dismissed (so that they were to remain
in the care of the local authority) and it was ordered that B was also
to remain in the care of the local authority.
As regards future access, the judge gave the local authority
permission to refuse to allow the applicant and his wife continued
access to B because, in the judge's view, there was no benefit in
access with the parents and to continue access would prejudice the
chance of B's future adoption. The local authority was also given
permission to refuse to allow the applicant and his wife access in the
future to the three older children. The judge noted in this respect
that to continue access with those children was not desirable as it
would disrupt the placement process and the quality of access in the
past had not been good. However, the judge ordered that one more access
visit be allowed with B and that the parents were to wind down access
with the three older children over the space of three months at which
stage all access would cease. In reaching his conclusions on the access
issues the judge relied on the report of the Guardian ad litem.
The applicant and his wife were legally aided and represented
throughout all of the proceedings concerning the care of the children.
On 15 October 1994 the applicant's wife gave birth to JL and JL
was immediately taken into care pursuant to an Emergency Protection
Order (under the 1989 Act). The applicant is to file a separate
application before the Commission in relation to this child.
The applicant and his wife continue to share a home though it is
not clear whether the divorce proceedings have been withdrawn.
COMPLAINTS
1. The applicant complains that the proceedings in relation to his
children were unfair. In this respect he alleges a material conflict
of interest in that between April and June 1991 the same solicitor or
firm of solicitors acted for the local authority and his wife and that
a barrister, who had acted for his wife at a directions hearing,
represented the local authority at the hearing in July 1993. The
applicant also complains about a statement by Ms. Wright, social
worker, which was presented to the court as her own when in fact it
consisted of the evidence of three other social workers.
2. The applicant also complains of an interference with his family
life under Article 8 of the Convention in relation to the taking into
care of his children, the lack of parental access and the length of the
proceedings by which the question of the children's care was resolved.
He further complains under Article 8 of the Convention about,
inter alia, the use of baby monitors in the living area in Cheshire
house to monitor the applicant and his wife, the inappropriate handling
of the case by social services and the local authority (in that they
allegedly failed to adhere to "Government Guidelines", changed the
dates and times of the access visits and treated M negligently while
in care), a conspiracy between social services and the local authority
to ensure his children remained in care, social services and the local
authority taking advantage of his wife due to her "personality flaw"
and the authorities pressurising his wife to issue divorce proceedings.
In addition, he complains that the Area Team Manager (who chaired
all the case conferences) was not independent and that there was no
independent complaints body or person within social services, that the
children were denied the right to their own religion because social
workers did not endeavour to bring up the children in the applicant's
chosen religion, that a student attended a case conference against his
wishes and that he was never informed, while in Cheshire House, that
his wife was to have a hysterectomy.
THE LAW
1. The applicant argues that the proceedings were unfair because of
two alleged material irregularities namely, an alleged conflict of
interest on the part of a barrister and a solicitor (or a firm of
solicitors) together with the use by the court of Ms. Wright's
statement.
The Commission has examined these complaints under Article 6
para. 1 (Art. 6-1) of the Convention which, insofar as is relevant,
reads as follows:
"In the determination of his civil rights ..., everyone is
entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law."
The Commission considers, in light of previous case-law (see, for
example, 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.
Insofar as the applicant complains about the decisions of the
courts specifically on the submissions made in relation to these two
allegations or about the decision of Judge Brown of 15 July 1993 in
view of those alleged irregularities, the Commission recalls that, in
accordance with Article 19 (Art. 19) of the Convention, its only task
is to ensure the observance of the obligations undertaken by the
Parties in the Convention. In particular, it is not competent to deal
with an application alleging that errors of law or fact have been
committed by domestic courts, except where it considers that such
errors might have involved a possible violation of any of the rights
and freedoms set out in the Convention (see, for example, Eur. Court
H.R., Schenk judgment of 12 July 1988, Series A no. 140, p. 29, para.
45).
The Commission notes that the local authority raised in court the
matter of the alleged conflict of interest (on the part of the
solicitor or firm of solicitors in question) some time after
25 April 1991, indicating that the matter had just come to its
attention and apologising for the oversight. At the directions hearing
in question the court accepted the local authority's apology. It is
also noted that these allegations as to a conflict of interest related
to April to June 1991 which was at the beginning of the proceedings.
Furthermore, the Commission notes that the applicant was legally
represented at the numerous hearings after this conflict issue was
first raised in court and thus he had every opportunity to make
representations, to provide evidence and to make submissions as to the
impact of this alleged conflict of interest to the court.
As regards the conflict of interest allegation in relation to the
barrister, the Commission recalls that the barrister in question
represented the applicant's wife at one directions hearing only and
further that the applicant was represented at the hearing in July 1993
when Judge Brown found that this matter was not sufficiently serious
to warrant adjourning the hearing.
As regards the use by the court of the evidence of Ms. Wright,
it is noted that Ms. Wright verified the information in the statement
with the other social workers involved prior to signing the statement
and that it is not alleged by the applicant that the information
contained in the report was untrue or inaccurate. In these respects,
it is further recalled that it is not for the Commission to re-assess
the factual or legal elements of the case before the domestic courts,
given that the decisions taken had a basis in law and were based (as
noted above in respect of the specific court rulings on these
allegations and below as regards the judgment of Judge Brown on
15 July 1993 on relevant and sufficient reasons (cf., for example, Eur.
Court H.R., Barbera, Messegué and Jabardo judgment of 6 December 1988,
Series A no. 146, p. 31, para. 68).
In light of these considerations, the Commission finds that there
is no appearance of a violation of the requirement of a fair hearing.
This complaint of the applicant is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains under Article 8 (Art. 8) of the
Convention about:
(a) the taking into care of his children without, in the end, any
parental access; and
(b) the length of the proceedings.
Article 8 (Art. 8) of the Convention, insofar as is relevant,
reads as follows:
"1. Everyone has the right to respect for his private and family
life....
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 ... for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
(a) The Commission considers that the taking into care of the
applicant's children, initially with and subsequently without parental
access, constituted an interference with the applicant's right to
respect for his family life as guaranteed by Article 8 para. 1
(Art. 8-1) of the Convention and notes that these matters were finally
decided by the High Court on 15 July 1993. In this respect, the
Commission recalls that the applicant's three older children have been
in care since April 1991 and that B. has been with foster parents since
December 1992. The applicant has not had access to the three older
children since October 1993 or to B. since the final access visit
following the final decision of the High Court.
The Commission has consequently examined whether this
interference was justified under Article 8 para. 2 (Art. 8-2) of the
Convention namely, whether the interference is "in accordance with the
law", pursues one or more of the legitimate aims enumerated in Article
8 para. 2 and whether it is "necessary in a democratic society" for one
or more of those aims.
As regards the first two conditions, the Commission notes that
the courts' interim decisions on care and parental access (initially
made pursuant to the Family Division of the High Court's inherent
wardship jurisdiction and subsequently pursuant to the 1989 Act) were
conclusively dealt with and confirmed by the High Court (under the 1989
Act) on 15 July 1993. The Commission also notes that the courts'
decisions on wardship, care and access were made on the basis of the
evidence produced on an ongoing basis as to the parents' inability to
care for their children and in the best interests of the children. The
Commission therefore finds that the decisions of the courts on
wardship, care and access were in accordance with the law and pursued
the legitimate aims of protecting the children's health and rights. The
applicant submits, in this respect, that the local authority and social
services did not comply with "appropriate Government guidelines".
However, the Commission considers this submission unsubstantiated in
that the applicant does not specify the guidelines to which he refers
or in what respect any such breach took place.
It thus remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the children.
According to the established case-law of the Convention organs,
the notion of necessity implies that the interference corresponds to
a pressing social need and, in particular, that it is proportionate to
the legitimate aim pursued. Furthermore, in determining whether an
interference is "necessary in a democratic society" 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 recalls that the judgment of the High Court of
15 July 1993 confirmed the interim care orders and allowed the local
authority to refuse the parents any further access to the children
(after some final access visits).
The Commission notes the extent and nature of the evidence before
the High Court and, in particular, the recommendations contained in the
social work report filed in September 1992 and those dated
February 1993 together with the report of the Guardian ad litem.
The Commission also notes that Judge Brown refused the
applications by the applicant and his wife for residence orders and
ordered that B. remain in care on the basis of his findings as to the
family history (of extreme dysfunction), as to the parents inability
to care for the children whether together or separated and as to the
best interests of the children. As regards access, the judge concluded
that continued access was not desirable in the interests of the
children. However, the judge allowed final access visits in order that
the parents could wind down access to the older children gradually and
could have a final access visit with B (who was, at that stage, less
than one year old).
The Commission is satisfied that the decision of the High Court
of 15 July 1993 was based on a thorough and careful investigation of
the case, was not unreasonable or arbitrary and was supported by
"relevant and sufficient" reasons.
As regards the procedural requirements implied in Article 8
(Art. 8) of the Convention (excluding the length of proceedings
complaint which is dealt which below) to ensure effective respect for
family life, the Commission notes that the applicant was legally
represented throughout the proceedings and is satisfied that the
applicant had the possibility of putting forward any views which he may
have felt would be decisive to the outcome of the case. While the
applicant complains about a conflict of interest in respect of a
solicitor (or a firm of solicitors) and a barrister and about the use
of Ms. Wright's statement, the Commission has found above that these
matters did not affect the fairness of the overall proceedings as
regards the applicant. The Commission considers that the procedural
requirements, implicit in Article 8 (Art. 8) of the Convention, were
complied with and that the applicant was involved in the decision-
making process to a degree sufficient to provide him with the requisite
protection of his interests (see, for example, Eur. Court H.R., H. v.
the United Kingdom, loc. cit., pp.27-28, paras. 87-90 and W. v. the
United Kingdom, 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 in this respect,
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 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.
(b) As to the applicant's complaint under Article 8 (Art. 8) of the
Convention about the length of the proceedings, the Commission has
considered whether the length of proceedings (being approximately two
years and three months) has failed to show respect for the applicant's
family life contrary to Article 8 (Art. 8) of the Convention. The
Commission recalls that delays by the authorities resulting in
proceedings taking 31 months, leading to a de facto determination of
the issues by the effluxion of time, has been found to constitute a
violation of Article 8 (Art. 8) of the Convention (Eur. Court H.R., H.
v. the United Kingdom, loc. cit., pp. 27-28, paras. 87-90).
In the present case, the Commission notes the consistent views
expressed in the various affidavits and reports filed by the social
workers, health visitors, psychologists and by the Guardian ad litem.
The Commission also notes the opinion of Judge Brown, given in his
judgment of 15 July 1993, as to the applicant's and his wife's parental
abilities and as to the best interests of the children. It is therefore
not established that, in the circumstances of the present case, the
length of the proceedings led to a de facto determination of the
issues. In addition, the Commission notes that the matter was
relatively complex due to the number of children involved and the birth
during the proceedings of B. The Commission further notes the
importance of what was at stake for the applicant, the need to
carefully collect information and to put that information before the
courts and the contradictory statements of the applicant and his wife
made in the course of the proceedings.
It therefore finds that this complaint of the applicant is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant also raises a number of additional complaints under
Article 8 (Art. 8) of the Convention.
He complains, inter alia, that the Cheshire House authorities
used baby alarms in the living area in Cheshire house in order to
monitor the applicant and his wife. He also complains about the
handling of the matter by social services and the local authority and,
in particular, about the changing of the times of the access visits by
social services and about the negligent treatment of M. while in care.
He also alleges that there was a conspiracy between the local authority
and social services to ensure that the children remain in care. He
further submits that his wife was taken advantage of by the local
authority and social services due to her personality flaw and was
pressurised by the authorities to institute divorce proceedings. The
Commission has examined the allegations made and the documents
submitted by the applicant. It considers that these complaints have not
been substantiated.
The applicant also complains, inter alia, that the Area Team
Manager (who chaired all the case conferences) was not independent and
that there was no independent complaints body or person within social
services. In this respect the Commission notes that the applicant had
access to the courts in relation to the case on an ongoing basis, was
legally represented and any complaint as to the Area Team Manager's
independence, and consequently the evidentiary value of his or other's
statements, could have been made by the applicant in court. As regards
the claim that the children have been denied the right to their own
religion because social workers did not endeavour to bring up the
children in the applicant's chosen religion, there is no indication
given by the applicant as to what religion he refers and no evidence
has been submitted by the applicant indicating that this matter was
ever raised with social services, the local authority or the courts.
As to his complaint in relation to the attendance of a student
at one of the case conferences, there is no evidence that the student
was doing anything other than observing the meeting. As regards the
applicant's complaint that he was never informed while in Cheshire
House that his wife was to have a hysterectomy, it is noted that the
applicant's wife subsequently gave birth in October 1994.
The Commission has examined these complaints, the arguments of
the applicant and the material submitted to the Commission by him and,
insofar as these complaints have been substantiated, the Commission
concludes that they do not disclose a violation 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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M. F. BUQUICCHIO) (C. L. ROZAKIS)
Full & Egal Universal Law Academy