AS TO THE ADMISSIBILITY OF
Application No. 12402/86
by Angela and Rodney PRICE
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
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
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 September
1986 by Angela and Rodney PRICE against the United Kingdom and
registered on 22 September 1986 under file No. 12402/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are both British citizens, born respectively in
1939 and 1952. The first applicant is a district nurse; the second
applicant is a market trader by profession. They are represented by
Ms. Mary Ryan, solicitor, of the Family Rights Group, London. The
facts as they have been submitted on behalf of the parties may be
summarised as follows.
The applicants are the adoptive paternal grandparents of a
child, D., born on 24 July 1984. D. is the son of the applicants'
adopted son and daughter-in-law. The first applicant adopted her son
during her first marriage, and following the first applicant's
marriage to the second applicant, the second applicant also adopted
her son. The applicants visited D. regularly after his birth and were
concerned that he did not seem to be very well. In particular it
appeared that he had difficulty feeding.
On 4 September 1984 D. was admitted to hospital with serious
injuries, including a fractured skull and fractures in the legs. The
local authority was not satisfied with the explanations offered in
respect of the injuries and suspected they were non-accidental. At
this time, the social services department of the local authority
obtained a place of safety order in respect of D. under Section 28(1)
of the Children and Young Persons Act 1969. D. was in hospital for
three weeks, during which time both applicants visited him daily, the
first applicant often staying for several hours. Both applicants were
very concerned about their grandson.
On 21 September 1984 the social services department of the
local authority placed D. with short-term foster parents, where the
applicants were refused the opportunity to visit him despite their
request. On 7 November 1984 the Wigan Juvenile Court granted a care
order in respect of D. to the social services department of the local
authority under Section 1(2)(a) of the Children and Young Persons Act
1969. The applicants were not legally entitled to be parties to those
proceedings, or to make representations or any application in respect
of their grandson.
The local authority from the outset had decided on pursuing
the course of rehabilitating D. with his parents. The programme of
rehabilitation began at the end of November 1984 when the child began
to spend days at home. The applicants were then able to visit him at
his parents' home. As the rehabilitation programme developed, so
contact with the applicants also increased. On 1 March 1985 the child
returned to the care of his parents on a full-time basis and the
applicants saw him about twice a week.
On 12 June 1985 the child was admitted to hospital with
bruises under his eyes. The applicants visited the child in hospital
every day until his discharge on 21 June. The local authority
considered these injuries to be non-accidental and when he was
discharged from hospital placed him with foster parents. The
applicants asked for access, which was initially refused. Subsequently
the social services department of the local authority allowed the
first applicant to visit the child with the child's mother once a
week, but refused to make arrangements for both applicants to visit
the child together.
In August 1985 the applicants consulted their current
representative, and on 9 August 1985 their representative wrote to the
social services department of the local authority, in part in the
following terms:
"Unfortunately concern, which arises
from their natural love of their grandchild, has been
interpreted by your department as interference in the
case and they have had great difficulty in communicating
with your department and in making arrangements to have
access to [the child] while he has been living with
foster parents. [The applicants] have therefore sought
my assistance in opening up communications with your
department."
The letter requested further access to the child, if possible
at the applicants' home at weekends, and referred to paragraph 8 of
the Statutory Code of Practice on Access issued by the Department of
Health and Social Security which stresses the importance of
considering the wider family when making arrangements for access to a
child in care. The letter then added that, if the decision was taken
by the local authority not to continue to attempt to rehabilitate the
child with his parents, the grandparents offered themselves as
potential long-term carers for the child.
The social services department of the local authority
continued to refuse to make any fuller arrangements for access for the
applicants but did agree to consider the applicants' offer of a home
for D.
On 8 November 1985, a case conference held by the social
services department of the local authority decided to rehabilitate
D. with his parents. It was specifically concluded that if further
non-accidental injury occurred rehabilitation would be terminated and
consideration given to alternative placement for D. away from his
parents. On 17 December 1985 both sets of grandparents were seen by
social workers concerning their involvement in the rehabilitation
programme. D. again started to spend days at the home of his parents,
where the applicants were able to visit him. Once again, with
increasing time spent at home, the child's contact with the applicants
increased.
On 1 February 1986 the first applicant's son telephoned the
first applicant to say that the child had a bruise on his leg. The
first applicant advised him to contact the social services department,
and on 4 February 1986 the child was again admitted to hospital where
the first applicant visited him. D. was found to have bruising on the
thigh and buttocks. Both injuries were unexplained and D.'s parents
gave different reasons as to how the bruising could have been caused.
On or about 6 February 1986 the child was placed with foster parents.
Following a case conference on 7 February 1986 and in line
with the conclusions of the case conference on 8 November 1985,
rehabilitation plans ceased and long-term placement away from his
family was sought for D. At the same time it was decided that access
by members of the family was to cease. The applicants have not been
allowed to see D. since then.
On 11 February 1986 a social worker from the Family Rights
Group advising the applicants wrote to the social services department
of the local authority asking them for a meeting with the applicants,
before any decisions were made to the child's future. No reply was
received to this letter, but on 25 March 1986 the applicants were
invited to meet with the representatives of the social services
department of the local authority. They were told that on 7 February
1986 the social services department of the local authority had decided
to place the child for adoption in a new family. The applicants had
not been informed of this decision and had not been invited to make
representations about it.
On 19 February 1986 and 4 March 1986 case conferences
concerning access to children in care had been held by the social
services department of the local authority. It was confirmed that the
applicants should have no access to the child and found that they were
not suitable to care for him full-time. They had not been informed
that these meetings were taking place, nor had they been asked to make
any representations, and had not been informed of the decision prior
to 25 March 1986.
At their meeting with the local authority on 25 March 1986 the
applicants referred to the Code of Practice on Access to Children in
Care issued by the Secretary of State under Section 12G of the Child
Care Act 1980, and in particular to paragraph 28 of the Code of
Practice which is in the following terms:
"Disagreement with parents
28. Local authorities should ensure that they have clear
procedures which will enable parents to pursue complaints
about access and ask for decisions to be reviewed. Local
authorities should also be prepared to use these procedures
to deal with complaints about access decisions from other
relatives of children in care."
On 26 March 1986, the local authority sent a letter to the
applicants explaining the local authority's decision concerning access
and adoption. On 2 April 1986, the applicants attended a meeting with
the local authority to discuss this letter.
Subsequently, on 6 May 1986 the applicants attended another
meeting of the social services committee of the local authority and
presented their request for access to the child. Their request was
refused.
In May 1986 the first applicant's adopted son and
daughter-in-law issued a summons in the Wigan Juvenile Court under
Section 21(2) Children and Young Persons Act 1969, to discharge the
care order in respect of their child. The applicants had no locus
standi in those proceedings and were not entitled to be represented or
to make any applications on their own behalf. The Juvenile Court also
had no power to make any order in respect of the child's access to his
grandparents. In the meantime, on 12 May 1986, the applicants
submitted a letter to the adoption panel of the local authority
requesting that they be considered as prospective adopters for the
child. They pointed out in their letter that they considered that it
would be very hard for the social workers who had been involved in the
case up to date to examine their offer with the objectivity which was
necessary. They therefore suggested that an independent social worker
should make an assessment of their suitability.
The child's parents' summons to discharge the care order and
to request access came before the Juvenile Court on 22 October 1986 and
lasted four days. The application was refused.
The local authority placed D. for adoption.
Relevant domestic law and practice
Care proceedings under the Children and Young Persons Act 1969
By Section 1 of the 1969 Act the local authority may apply to
the Juvenile Court, which is a specially constituted magistrates
court, for the child to be placed in its care. The local authority
has a duty so to do under Section 2(2) of the 1969 Act. The
conditions to be satisfied following an application are set out in
Section 1(2)(a)-(f): section 1(2)a provides for a (care) order in
circumstances where
"(a) proper development is being avoidably
prevented or neglected or his health is being avoidably
impaired or neglected or he is being ill treated...."
In the application before the Juvenile Court the local
authority has to show the existence of one of the conditions in
Section 1(2)(a)-(f) and show that the child is in need of care or
control which he will not receive unless one of the orders specified
in Section 1(3) is made. It is provided by Section 44 of the Children
and Young Persons Act 1933, as amended by the Children and Young
Persons Act 1969, that every court in care proceedings shall have
regard to the welfare of the child in question and shall in a proper
case take steps for removing him from undesirable surroundings or for
securing that proper provision is made for his education and training.
One of the orders under Section 1(3) of the 1969 Act is a care
order. The effect of a care order is that the rights of the parents,
except the rights to agree to adoption and to influence the child's
religious beliefs, are taken from them and given to the local
authority. The powers and duties of local authorities with respect to
children and young persons committed to their care are contained in
Section 10 and Part III of the Child Care Act 1980. The local
authority have "the same powers and duties with respect to a person in
their care by virtue of a care order ... as his parents or guardian
would have apart from the order ..." (Section 10 of the 1980 Act).
They also have power to keep the child in their care notwithstanding
any claim by his parent or guardian while the order is in force.
Where a child is committed to the care of a local authority that
authority has the right to control access by other persons to that
child. In consequence of the child being in the care of a local
authority the local authority are required to give first consideration
to safeguarding and promoting the welfare of that child throughout his
childhood (Section 18 of the Child Care Act 1980). Thus the local
authority must apply this test in relation to decisions concerning
access to the child.
The care proceedings are, unless ground (f) is alleged, civil
proceedings; they are governed by the Magistrates' Courts (Children
and Young Persons) Rules 1970 (S.I.1970/1792) ("the 1970 Rules") as
amended and the law of evidence in civil cases applies. The parties
to the proceedings are the local authority and the child. It is open
to the child to have his parent or guardian to conduct his case on his
behalf either directly or indirectly through a lawyer in which case
the parent or guardian can apply for legal aid on the child's behalf
(Section 40(2) of the Legal Aid Act 1974). Where the court thinks
there may be a conflict of interest between the child and the parent
or guardian, the court may make an order that those interests be
separately represented (Section 32A of the 1969 Act as inserted by
Section 64 of the Children Act 1975). In that case legal aid will be
available for the child and separately for the parent or guardian
(Section 28(6A) of the Legal Aid Act 1974 as amended by Section 65 of
the Children Act 1975).
Under Section 2(12) of the 1969 Act, appeals from a juvenile
court decision in care proceedings lie to the Crown Court. The Crown
Court reviews the decision by way of rehearing. The local authority
has no direct right of appeal where no order is made under Section
1(3) or where the one made was not the order sought. Appeal on a
point of law lies to the Divisional Court of the High Court.
Judicial review
A person affected by the decision of an administrative body
may apply to have that decision set aside on the ground that the body
has acted in excess of its legal authority or that the decision taken
is one which nobody acting reasonably could have taken.
Wardship
Wardship jurisdiction is exercised by the Family Division of
the High Court or, since 28 April 1986, to a limited extent by County
Courts. It is a prerogative jurisdiction at common law and is largely
independent of statutory provisions. When a child becomes a ward of
court a court assumes responsibility for all aspects of his welfare.
It may, for example, make orders as to where the child has to live,
with whom, who may have access to him, and as to his religion,
education and marriage if under 18. In determining what orders to
make, the High Court is required by Section 1 of the Guardianship of
Minors Act 1971 to have regard to the child's welfare as the first and
paramount consideration. A court may grant care and control of the
child to a person or body, for example a local authority, but that
person or body may only act in accordance with the court's directions.
The court may also give care and control to one person or body and
make a supervision order, at its own discretion or under Section 7(4)
of the Family Law Reform Act 1969, in favour of another person or
body. A child remains a ward of court until either he has attained
his majority or the court orders that he shall cease to be a ward of
court. No important step can be taken in the child's life without the
court's consent (Re S (1967) 1 All ER 202 at 209).
Anyone, not merely a parent or a local authority, who can show
an appropriate interest in a child's welfare can apply for a child to
be made a ward of court. Section 41(1) of the Supreme Court Act 1981
provides that no child may be made a ward of court other than by a
court order. The application for the order must be made by
originating summons in the High Court. The procedure is set out in
Order 90 of the Rules of Supreme Court. The child becomes a ward of
court immediately the originating summons is issued. However, unless
an appointment for the hearing of the summons is made within 21 days,
the wardship automatically lapses. The appointment will generally be
before a registrar who gives directions as to what is to be done
before the case may be heard before a judge. He may also make an
order as to access if the person with the physical custody of the
child agrees. The registrar may also decide if any other interested
parties to the proceedings should be so joined. Any party
dissatisfied with the decision of the registrar may appeal to a judge
in chambers. When the proceedings are heard before the judge he
either confirms the wardship or makes an order terminating wardship.
There is a right of appeal from the judge in chambers to the
Court of Appeal, and thereafter (with leave) to the House of Lords.
In exceptional circumstances an appeal may be direct to the House of
Lords. Interested persons with insufficient means are able under
Section 7 of the Legal Aid Act 1974 to obtain legal aid for the
representation of their interests in wardship proceedings.
Once a child has become a ward of court, it remains open to
any party to bring the case back to the court for a variation of the
original order granting wardship or for directions on matters such as
access or education.
The courts have emphasised that the wardship jurisdiction is
not an alternative form of appeal from the decision of a juvenile
court concerning the care of a child under the 1969 Act. The
relationship between the responsibilities for the care of children
given by statute to local authorities and those exercised by the High
Court under wardship jurisdiction was explained in the leading
judgment of Lord Wilberforce in the House of Lords case A v. Liverpool
City Council (1981) 2 All ER 385 in particular at pages 388-9 in which
it was stated that wardship jurisdiction could not be exercised by the
courts to review the merits of local authorities decisions within the
field of discretion committed by statute to the local authority.
Code of Practice on Access
The Code of Practice on Access is a statutory code issued
under Section 12G of the Child Care Act 1980. Particular emphasis is
placed on the need for local authorities to make provision for contact
to be maintained, where this is consistent with the welfare of
children, with the wider members of the family in addition to the
child's parents (paras. 8 and 9 of the Code). The Code also requires
local authorities to ensure that they have clear procedures to enable
complaints about access to be pursued and for decisions to be reviewed
where relatives are concerned as well as parents. The provisions
introduced by the Health and Social Services and Social Security
Adjudications Act 1983 which provide a court procedure giving parents
a right to apply for access where a child is subject to a care order
do not apply to grandparent applications. Thus domestic legislation
does not recognise that grandparents have a right to access or a right
to apply for access to a child when that child is in the care of a
local authority under a compulsory care order.
Grandparents and grandchildren
Under domestic legislation grandparents generally do not have
legal rights over their grandchildren. Any rights which may exist
over children are normally vested jointly in the children's parents if
they are married. In considering the award of custody of a child to
any person or an issue relating to a child's upbringing such as access
a court must give first and paramount consideration to the welfare of
the child (Section 1 of the Guardianship of Minors Act 1971). Where a
child is in the care of a local authority by virtue of a compulsory
care order a grandparent of that child does not have a right to apply
for custody or access but must rely on the local authority's
discretion to afford contact with the child (which could include
access or the child living with the grandparents) where this would be
in the child's best interests. Section 18 of the Child Care Act 1980
requires the local authority to give first consideration to
safeguarding and promoting the welfare of the child throughout his
childhood and such contact with the grandparents would therefore have
to be consistent with the child's welfare.
Under domestic legislation grandparents may be parties to or
involved in the following proceedings in relation to their
grandchildren:
(i) Pursuant to Section 14A of the Guardianship of Minors Act
1971, where, under Section 9(1) of the Act, an order giving
access or custody to the father or mother is in force, the
Court may, on application of a grandparent of the minor,
make an order requiring access to the minor to be given
to the grandparent.
(ii) Grandparents may commence wardship proceedings, or apply to
be joined as parties to wardship proceedings commenced by
any other person, and may ask for any order which is in
the interest of their grandchild. However, as stated above,
wardship proceedings cannot be used to challenge the decisions
of local authorities taken under their statutory powers.
(iii) Where the child concerned is living with the grandparents
they may apply for a custodianship order in respect of him
under the Children Act 1975. This provision is applicable to
any relative of the child with whom the child has been living
for the preceding three months where the person with legal
custody of the child gives his consent. The provision also
applies to any person with whom the child has been living
for a period of 12 months (including the preceding three
months) where the person with legal custody consents.
(iv) In cases where the child is living with the grandparents
and various statutory requirements have been satisfied
grandparents may apply for an adoption order. These
requirements apply to any prospective adopter.
COMPLAINTS
1. The applicants complain of a violation of their rights under
Article 6 (Art. 6) of the Convention. They contend that their right to apply
for custody of and/or access to their grandchild is a civil right, but
that they do not have any right under English law to apply for custody
or access because their grandchild is subject to a care order made
under the Children and Young Persons Act 1969. In the care
proceedings the applicants have no locus standi and no right to apply
for the discharge of the care order. Similarly, the applicants have
no right to make an application in respect of their grandchild in
wardship proceedings in view of the decisions of the House of Lords in
A v. Liverpool City Council (1981) 2 All ER 385 and W and others v.
Hertfordshire County Council (1985) 2 All ER 301. Hence the
applicants contend that they had no independent and impartial tribunal
established by law from which they could obtain a fair hearing within
a reasonable time in respect of the determination of their civil
rights as regards their grandchild.
2. The applicants also complain of a violation of their rights
under Article 8 (Art. 8) of the Convention. They submit that they had
substantial access to their grandchild from his birth in July 1984 until his
final placement with foster parents in February 1986.
They complain that by restricting and ultimately terminating
access and refusing to allow them custody of their grandchild, the
social services department of the local authority have interfered with
their right to respect for their family life.
They further contend that the process of decision-making
within the social services department of the local authority provided
insufficient safeguards and showed a total lack of respect for family
life (*).
3. The applicants lastly contend that they had no effective remedy
before a national tribunal as required by Article 13 (Art. 13) of the
Convention since they had no standing in the care proceedings and wardship
would have been ineffective.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 September 1986 and
registered on 22 September 1986.
On 4 December 1986, the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on its admissibility and merits
pursuant to Rule 42(2)b of the Rules of Procedure.
The observations of the respondent Government were submitted
on 5 June 1987 after an extension in the time-limit and the
observations in reply submitted by the applicants on 16 September
1987, also after an extension in the time-limit.
----------
(*) The applicants' complaints under Article 8 (Art. 8) are set out in full
on pp. 9-10 of the Partial Decision on Admissibility.
The applicants were granted legal aid by the President of the
Commission on 25 June 1987.
On 9 March 1988, the Commission declared the applicants'
complaints under Article 8 (Art. 8) of the Convention inadmissible as
manifestly ill-founded in a partial decision on admissibility.
SUBMISSIONS OF THE PARTIES
A. The respondent Government
1. The facts
Background
Following D.'s first hospitalisation, the local authority's
records note that, in discussion with the health visitor on 7 September
1984, the first applicant mentioned that she was not surprised that
there had been injuries on D.
From the outset, the local authority sought to rehabilitate D.
with his parents as being in his best interests. The efforts of the
local authority therefore concentrated on the relationship between D.
and his parents, and although this at times restricted the applicants'
access to D., this was done for D.'s benefit. It had been noted at
case conferences on 11 September and 13 November 1984 that the first
applicant tended to overshadow D.'s mother, thus providing an obstacle
to the proposed rehabilitation of D. with his parents.
While the applicants were not entitled to be parties in the
case proceedings on 7 November 1984, the Juvenile Court has an
inherent discretion to allow persons such as the applicants to
participate in the proceedings: indeed the first applicant did give
evidence at the hearing. Representations could have been made that
the Court should make a supervision order with a condition attached
that D. live with the applicants.
The applicants met with the local authority on 25 March 1986,
2 April 1986 and 6 May 1986 and the applicants were able to put their
case for access. Following full consideration, the request for access
to D. by the applicants was refused.
In the proceedings before the Juvenile Court in October 1986,
neither the applicants nor D.'s parents asked that a supervision order
be made with a condition that D. reside with the applicants. Both the
guardian ad litem's reports of 20 and 22 October 1986 and the local
authority's report of 16 October 1986, which were before the Court,
considered and rejected the further contact between the applicants and
D. It is submitted that the Court had ample evidence before it to
come to the conclusion that it did, namely that the care order should
not be discharged and that there should be no access. It was brought
to the attention of the Court that the local authority's intention was
to place D. for adoption. This has now taken place.
It should also be noted that on 13 May 1986 a letter from the
local ombudsman was received by the local authority enclosing a letter
of complaint from the applicants concerning their treatment by the
local authority. This was investigated by the ombudsman and no
evidence of maladministration was found.
Throughout this case the local authority social workers were
concerned that not all the members of the family were being fully open
with the various authorities as to how injuries to D. occurred. As
mentioned above the first applicant was recorded by a health visitor
as saying that she was not surprised at the injuries which occurred to
D. resulting in his admission to hospital on 4 September 1984. On
19 September 1984 the health authority records note that D.'s mother
admitted holding D.'s face while winding him after a feed and that a
"potty" and shampoo bottle had been thrown at him by his sister.
Following attempts to rehabilitate D. with his family when he was
examined on 22 January 1985, 27 February 1985, 12 June 1985 and
4 February 1986 the explanations given by the various members of the
family, including the applicants, for the injuries recorded were not
accepted as satisfactory by the doctor who examined D. In particular
the explanations given by members of D.'s family for the injuries
on 12 June 1985 were not consistent. On the final occasion when
rehabilitation was attempted not only was there concern among the
local authority social workers that one of the applicants could have
caused the injuries but again the explanations provided by D.'s parents
and the second applicant were inconsistent. From the second
applicant's statement of 4 February 1986 it would appear that he could
have caused the bruising to D. According to the guardian ad litem's
report of 20 October 1986 the doctor who examined D. said that the
bruising on D.'s buttocks was due to an "extremely hard slap". The
local authority's letter of 26 June 1986 to the local ombudsman states
on page 3:
"The officers felt it was difficult for them to find out
exactly and precisely how D. had been injured, which had
occurred on a number of occasions. There seemed to be
conflicting stories being told or, to use the (applicants')
own phrase, a muddying of the picture. This is called
collusion and it could have been created deliberately or
it could have been created unknowingly, without being
aware of the effect.
The officers genuinely felt and still feel that such a
smoke screen or muddying of the picture existed, hence,
the reference in the telephone conversation (to collusion).
That view is still felt and it is not appropriate to
apologise for using the phrase."
The local authority's version of events was accepted by the
local ombudsman.
The view that members of the family had been less than fully
open with the local authority is supported by the first applicant's
comments (noted in the local authority's records on 27 March 1986)
when she explained to a social worker that D.'s mother had injured D.
If she had known this before she could presumably have come forward
and discussed it openly with the local authority officials concerned.
2. Domestic law and practice
Adoption legislation
Before a child can be placed for adoption the Adoption
Agencies Regulations 1983 which govern pre-placement procedure require
a full investigation of each case where adoption is under
consideration. This will include consideration of the wider family.
Before a local authority can make adoption placement decisions they
must receive their Adoption Panel's recommendations. Adoption orders
can only be made after consideration by the adoption Court of the
question of whether the parents agree to the making of an adoption
order or the Court dispenses with their agreement in accordance with
Section 12 of the Children Act 1975. In a case such as the present
one the parties to the proceedings would include the prospective
adopters, the local authority and the child's parents and may include
any other person (including grandparents) as the Court may at any time
direct (Rule 15(3) of the Adoption Rules 1984). The Court will have
before it in addition to any other evidence which any of the parties
may wish to introduce a report from the local authority as the placing
agency covering the matters specified in Schedule 2 to those rules
which will include relevant information concerning the grandparent.
It should cover the nature of the relationship between the
grandparents and the child and possible alternatives to adoption which
have been or should be considered. In considering whether to make an
adoption order in any case the Court is required to 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 3 of the Children Act 1975).
Children and Young Persons (Amendment) Act 1986
Since proceedings were taken in the present case the above Act
has been passed. It amends the 1969 Act to the effect that any
grandparent of a child in respect of whom care proceedings are brought
may make an application to the Court and the Court may in such
circumstances as may be specified in rules of Court give leave for the
grandparent to be made a party to the proceedings. These provisions
of the Act have not yet been brought into operation. The Act does not
affect the orders which the Court may make in care proceedings where
the grandparent is a party. Thus the Court cannot make a custody
order or access order in favour of the grandparent.
3. Admissibility and merits
Article 6 para. 1 (Art. 6-1) of the Convention
The respondent Government do not accept that the applicants'
civil rights were involved in the present case. Grandparents do not
under English law have any rights of access to their children. At
most, a child's grandparents have the right, in certain circumstances,
to make an application to the courts in the hope that the courts
might, in the exercise of their discretion, permit them access to
their grandchild. It is therefore submitted that there is no legal
basis in English law for the proposition that grandparents have
"rights" in relation to their grandchildren of a type to which
Article 6 (Art. 6) of the Convention has any relevance.
Insofar as it is true to say that the grandparents had a hope
or expectation that access might have been granted to them by the
local authority, it is submitted that any such hope or expectation
cannot be classed as a right and that the possibility that a
discretion right be exercised in a certain way cannot be characterised
as a right.
If, which is not accepted, the applicants' civil rights were
involved it is submitted that they did have access to court for
determination of that right. Local authority action can be challenged
in wardship proceedings in conjunction with proceedings for judicial
review or in proceedings for judicial review alone. If the local
authority had acted improperly in restricting access to the applicants
or in their refusal to grant access after 7 February 1986, it would
have been open to the applicants to apply both for judicial review of
the local authority's actions and to bring wardship proceedings at the
same time. If, for example, it could have been shown that the local
authority did not take proper account of the applicants as possible
carers for D. and persons who should have continued to be involved in
D.'s life or if the local authority had failed to act in accordance
with the principles set out in the Code of Practice on Access there
would have been good grounds for such applications to have been made.
In fact, the local authority went to considerable efforts to enable
the applicants to put their case before a specially convened meeting
of elected members in accordance with the procedures recommended under
the Code of Practice and there were a number of meetings between the
applicants and the local authority's social workers to discuss both
access and the applicants' further involvement with D.
In the present case, any "right" to access which the
applicants had stemmed from the possibility of the local authority
exercising their discretion in the applicants' favour. In such cases,
the case-law of the Court and the Commission indicates that the
possibility of judicial review of the exercise of such discretion
satisfies the requirements of Article 6 para. 1 (Art. 6-1). The recent case of
Agosi (Eur. Court H.R., Agosi judgment of 24 October 1986, Series A
No. 108) indicates that the remedy of judicial review, which in this
case could be used alone or supported by a wardship application, would
be a satisfactory remedy having regard to the requirements of Article
6 (Art. 6). The Government also refer to the case of Van Marle (Series A
No. 101 para. 35) as indicating that the existence of such proceedings
is relevant in particular when it is alleged that an authority has
exercised its powers improperly. The Government further rely on the
Report of the Commission in Application No. 7598/76, Kaplan v. the
United Kingdom (Comm. Rep. 17.7.80, D.R. 21 p. 5),
It is submitted that the applicants could not show, on the
facts, that they had a proper basis for challenging the actions of the
local authority, as the local authority did not act improperly.
However, if this is alleged, it is submitted that in this regard the
applicants have failed to exhaust domestic remedies for the purposes
of Article 26 (Art. 26) of the Convention.
As regards the care proceedings, the applicants could have
requested the Court, in the exercise of its inherent jurisdiction, to
allow them to make representations. For example, they could have made
representations, in conjunction with D.'s mother and her husband, that
a supervision order be made with a requirement that D. be placed with
the applicants.
Article 13 (Art. 13) of the Convention
If, contrary to the respondent Government's submission, the
Commission is of the opinion that Article 6 (Art. 6) is applicable, the
Government would submit that no separate issue arises under Article
13 (Art. 13). The Government would refer to the constant case-law of the
Convention organs to the effect that the requirements of Article 13
(Art. 13) are less strict than and accordingly absorbed by Article 6 (Art. 6)
(e.g. Eur. Court H.R., Silver and Others judgment of 25 March 1983, Series A
No. 61 para. 110).
If the Commission are of the opinion that Article 6 (Art. 6) is not
applicable, the respondent Government first suggest that the
applicants do not have an arguable claim for the purposes of Article
13 (Art. 13). In the case of Rice and Boyle (Applications Nos. 9658/82 and
9659/82, Comm. Rep. 7.5.86) the Commission identified three elements
of a claim which was "arguable": the claim should concern a right or
freedom guaranteed by the Convention; the claim should not be wholly
unsubstantiated on the facts; and the claim should give rise to a
prima facie issue under the Convention. The Commission did not amplify
what it meant by the words "prima facie issue" in this context.
However, it is noted that in respect of the two applicants' complaints
in that case the Commission equated the concept of manifestly
ill-founded with the absence of a prima facie issue; in particular, in
paragraph 91 of its Report, the Commission held that, since the
supervision of prisoners' correspondence was justified under Article 8
para. 2 (Art. 8-2), the complaint did not give rise to a prima facie issue and
thus to an arguable claim under the Convention.
In the present case, the Government argue that the applicants'
claim under Article 8 (Art. 8) is manifestly ill-founded. In these
circumstances the Government submit that no issue under Article 13
(Art. 13) arises.
Alternatively, the applicants had an effective remedy before a
national authority through the procedure adopted by the local
authority in respect of access and subsequently by taking wardship
and/or judicial review proceedings in respect of the decisions made by
the local authority pursuant to that procedure in relation to the
applicants. There is no evidence to indicate that any decision of the
local authority in this case was improperly taken, but, if it had
been, the remedies available through judicial review and wardship
would have allowed such a decision to be challenged and afforded an
effective remedy in accordance with the requirements of the
Convention. In these circumstances the Court could have declared that
the decisions that had been taken did not have a proper legal basis,
or required the local authority to make its decision again taking
account of proper considerations. In conjunction with its wardship
jurisdiction the Court could have awarded care and control to the
applicants or directed that access be granted.
The Government would also observe that the applicants have
already put their case to the Adoption Panel. Their request that they
be considered as suitable for an adoption placement for D. was in fact
rejected, but they will be entitled to apply to be made parties to any
court proceedings which consider adoption of D. by the prospective
adopters with whom the child is presently placed. The applicants will
therefore be able to make representations to that court on such
matters as they see fit. For example it would be open to the
applicants to argue against the making of an adoption order. Again
this procedure indicates that the applicants do have an effective
remedy before a national authority as required by Article 13 (Art. 13).
B. The applicants
1. The facts
The applicants submit that they were denied any access to D.
from 21 September 1984 until a date in mid-November 1984. The
applicants do not accept that access was denied to them in order to
facilitate D.'s rehabilitation with his parents. The applicants'
access restarted once the rehabilitation programme commenced when they
were able to see D. at his parents' home.
The applicants deny that in June 1985 arrangements were made
for the first applicant to visit D. on her own. The first applicant
was occasionally allowed to visit D. together with his mother, but the
local authority refused to allow the applicants to visit either alone
or together with each other.
The local authority's letter to the applicants of 27 August
1985 stated that a social worker would investigate the applicants'
offer of a home for D. and that the matter would be considered "most
carefully and in great detail". Shortly afterwards the applicants
were visited at home by a social worker. She stayed about 45 minutes
and asked the applicants some questions about themselves. She said
that if D. did not return home to his parents it was most unlikely that
he would be placed with the applicants as they lived too near the
parents. The applicants said they would be prepared to move to
another area. The social worker mentioned adoption and said that the
local authority had no finances to maintain D. in foster care. The
applicants said they would be prepared if necessary to contribute to
his upkeep. The social worker did not visit the applicants again.
The applicants were not invited to the case conferences on 18 October
and 8 November 1985.
The applicants submit that the Code of Practice on Access
encourages local authorities to make provision for access to members
of the child's extended family. Paragraph 28 of the Code states that
local authorities should have clear procedures to deal with complaints
about access from relatives of children in care. Paragraph 33 states
that parents should be informed in writing if termination of access is
being considered and should be told how to make their views known and
how any decisions will be conveyed to them. It is submitted that the
spirit of the Code is that concerned relatives should be in no worse a
position than parents. In this case the local authority decided to
terminate D.'s access to his grandparents on 7 February 1986. The
applicants were not informed in advance that such termination of
access was being considered. The decision on 7 February 1986 was
confirmed at the meeting held on 19 February and 4 March 1986. Though
the local authority were well aware that the applicants wished to make
representation about access to and care of their grandchild, the
applicants were not told about the meetings or invited to make their
views known. The applicants note that the report of the meeting of 6
May 1986 does not state the reasons for refusing access.
The applicants deny that they were not fully open with the
local authority about D.'s injuries or that they deliberately "muddied
the picture". In February 1986 D. was admitted to hospital with
certain injuries. At first the applicants did not know the details or
extent of his injuries. The second applicant was concerned that he
might have been responsible for the injuries as he had smacked D. to
make him let go of an electrical plug and socket. He sent a statement
detailing the incident to the local authority. When the second
applicant was made aware of the extent of D.'s injuries he accepted he
could not have caused them.
The applicants also emphatically deny that they were
"implicated directly or indirectly in the abuse of D". There is no
evidence to suggest that the applicants abused or neglected D. during
their contact with him. The first applicant also denies that she
stated that she was aware that D.'s mother had abused him although she
did acknowledge that D.'s mother found difficulty in coping.
2. Domestic law and practice
Adoption
Grandparents are not automatically made parties to adoption
proceedings involving their grandchildren. It is true that Rule 15(3)
of the Adoption Rules 1984 provides that the Court may direct that any
person be made a party to the proceedings. However, this is a matter
for the Court's discretion and in practice grandparents and other
relatives of children in care are rarely successful in applying to be
joined as parties. No adoption proceedings are commenced until the
child has been successfully placed with prospective adopters. In the
overwhelming majority of cases access to the parents and relatives
will have been terminated sometime before placement. In cases where
the child is in care under the Children and Young Persons Act 1969 the
Court in adoption proceedings has no power to make any order for
custody or access in favour of grandparents. For all these reasons it
is only in exceptional cases that the Court in adoption proceedings
will give leave for grandparents to be involved.
3. Admissibility and merits
Article 6 (Art. 6) of the Convention
The applicants' civil rights
The applicants submit that there is a civil right of a
grandparent to have access to his grandchild. The applicants would
adopt the view of the Commission in the case of Sporrong and Lönnroth
(loc. cit) referred to by the Government that a given privilege or
interest which exist in a domestic legal system may constitute a civil
right, even though it is not described as such by that system.
The applicants reject the Government's submission that, under
domestic law, grandparents have no rights as regards access to their
grandchildren who are not in public care. Legislation such as the
Guardianship of Minors Act 1971 specifically gives grandparents the
right to apply for access to their grandchildren and in the
applicants' submission domestic law recognises the importance to
children of grandparental contact. Though it is not stated in any
statute that grandparents have a "right" of access the applicants
would submit that domestic law by implication recognises that right as
grandparents are permitted to apply for access where it is denied.
The applicants would further submit that any right of access
they had to their grandchild was not extinguished once he was received
into care. Although the continuation of access became a matter within
the discretionary power of the local authority once D. had been
received into care, this did not mean that they no longer had any
right in regard to access, since the Code of Practice on Access makes
express reference to preserving contact with a child's natural family,
including grandparents. It would be inconsistent with this aim if the
making of a care order were automatically to divest the grandparent of
all further rights in regard to access.
The applicants submit that they have no access to any
independent and impartial tribunal established by law to determine
their civil rights. It was not open to them to commence proceedings
for judicial review. The applicants were not invited to the meetings
at which the local authority made their decisions and have no access
to the relevant minutes and reports arising from those meetings. The
applicants do not know why they were rejected as possible carers for
D. or why it was considered to be in his interest that access to them
should cease. The applicants are unaware of the principles upon which
the local authority acted and of the matters the local authority took
into account. The applicants could not have obtained leave to
commence proceedings for judicial review without some concrete
evidence that the local authority had acted on wrong principles or
taken irrelevant matters into account.
The applicants would further submit that proceedings for
judicial review would not have constituted an effective remedy for the
determination of their civil rights. They would refer to the judgment
of the Court in W v. the United Kingdom (loc. cit.) where the Court
found that the powers of the English courts as regards access did not
satisfy the requirements of Article 6 (Art. 6).
The applicants disagree that they could have requested the
Juvenile Court to allow them to make representations. The applicants
further submit that, as the Juvenile Court in care proceedings has no
power to adjudicate upon an application by grandparents for access to
or custody of their grandchild, any right of grandparents to make
representations to the Court would not constitute a remedy which
satisfies the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.
Article 13 (Art. 13) of the Convention
The applicants submit above that (1) the lack of procedural
safeguards whereby the necessity of the local authority's actions
could be tested and (2) the absence of effective remedies whereby the
applicants could challenge the local authority's decisions constituted
breaches of Article 8 (Art. 8). These matters when taken in conjunction with
Article 13 (Art. 13) constitute a breach of that article also.
As regards the Government's submissions that the applicants
could have intervened in any adoption proceedings, the applicants do
not accept that the applicants could have successfully intervened in
adoption proceedings. However, even if they had been made parties to
the proceedings the Court on hearing the application for adoption
would have had no power to make any order for access or custody in the
applicants' favour. The applicants therefore submit that this
procedure does not constitute an effective remedy which satisfies the
requirements of Article 13 (Art. 13).
THE LAW
1. Article 6 (Art. 6) of the Convention
The applicants complain that they have no effective access to
court to apply for custody of and/or access to their grandchild
contrary to Article 6 (Art. 6) of the Convention.
Article 6 (Art. 6) of the Convention provides:
"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..."
The Commission recalls first of all that the case-law of the
Commission and the Court has established that Article 6 para. 1 (Art. 6-1) of
the Convention guarantees to everyone an effective right of access to the
courts for the determination of their civil rights and obligations. The
Commission must therefore consider whether a right was at all involved in the
present case and, if so, whether that right was a civil right within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission notes that, generally speaking, Article 6 para.
1 (Art. 6-1) of the Convention is not aimed at creating new substantive rights
which have no legal basis in the State concerned but at providing
procedural protection to rights which are recognised in domestic law.
It is not however decisive whether a particular benefit or expectation
is characterised under the domestic legal system as a right since
the term right must be given an autonomous interpretation under
Article 6 para. 1 (Art. 6-1) of the Convention (e.g. Eur. Court H.R., König
judgment of 28 June 1986, Series A No. 27 para. 87). In W v. the
United Kingdom (Eur. Court H.R., W v. the United Kingdom judgment of 8
July 1987, Series A No. 121, p. 32 para. 73) the Court stated:
"It is true that Article 6 para. 1 (Art. 6-1) extends only to
'contestations' (disputes) over (civil) 'rights and
obligations' which can be said, at least on arguable
grounds, to be recognised under domestic law; it does
not in itself guarantee any particular content for
(civil) 'rights and obligations' in the substantive law
of the Contracting States (see, amongst other authorities,
the Lithgow and Others judgment of 8 July 1986, Series A
No. 102, p. 70 para. 192)."
The applicants in the present case claim that their right to
access and/or custody is a civil right. The Government however submit
that under English law grandparents do not have any legal rights over
their grandchildren and that such rights which can be said to exist in
relation to children are normally vested jointly in the children's
parents.
An examination of English law discloses that in certain
circumstances grandparents may be able to introduce legal proceedings
dealing with the welfare of their grandchildren or applying for
custody of and access to their grandchildren (see Relevant domestic
law and practice). However, while such possibilities do exist under
the Children Act 1975, adoption legislation and the wardship
procedure, the Commission notes that these provisions apply generally
to any persons who fulfil the relevant criteria and are not rights
which accrue to applicants as a consequence of their status as
grandparents.
Section 14A of the Guardianship of Minors Act 1971 makes
specific provision for grandparents but this only gives a grandparent
the right to apply to a court for access where an order in relation to
access or custody has already been made by the court in respect of the
father or mother of the child in question and, in such circumstances,
the court may in its discretion award access to a grandparent. This
provision allowing grandparents to apply to the court however does not
apply in respect of a child in care. Accordingly, this provision
which appears to have been designed to deal with the consequences of
the breakdown of marriage confers no substantive right of access by
grandparents to a child in care. The Commission therefore finds that
this limited procedural provision confers no substantive rights of
access capable of falling within the scope of the concept of civil
rights.
The Commission also recalls the Statutory Code of Practice on
Access, issued pursuant to Section 12G of the Child Care Act 1980,
which states that consideration of access should take into account the
wider family, specific reference being made in this context to
grandparents. However it appears that the Code is intended as
providing guidelines to local authorities and others concerned in
child care and does not lay down any binding requirements or
obligations in this respect nor confer any rights of access or
custody. At most, this would appear to give relatives, including
grandparents, an expectation that they should be considered in the
course of reaching decisions concerning access to a child in care.
In these circumstances, the Commission concludes that the
domestic law of England does not recognise any right of grandparents
to access to or to custody of their grandchildren in care.
The Commission accordingly finds that the applicants'
complaints do not involve a civil right or obligation within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention. It follows that
this part of the application must be dismissed as incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. Article 13 (Art. 13) of the Convention
The applicants also complain that they have no remedy in
respect of their complaints, since they had no locus standi within the
care proceedings and wardship proceedings would have been ineffective.
Article 13 (Art. 13) of the Convention provides:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
Insofar as the applicants complain of interference with their
right to respect for family life under Article 8 (Art. 8), the Commission
recalls that the case-law of the Court and the Commission establishes
that for Article 13 (Art. 13) to apply, an applicant's claim that a provision
of the Convention has been breached must be an arguable one (see e.g. Eur.
Court H.R., Leander judgment of 26 March 1987, Series A No. 116, p. 29 para. 77
and Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A No.
131 para. 52).
The Commission recalls that in its partial decision on
admissibility dated 9 March 1988 it found that, in relation to the
limitations on access afforded to the applicants during the periods
from the end of September to the end of November 1984 and from June to
November 1985, the restrictions imposed did not disclose any lack of
respect for the applicants' family life, bearing in mind the
relatively short duration of and background to those restrictions. In
all the circumstances, the Commission does not consider that there was
an arguable case that during those periods there was a violation of
Article 8 (Art. 8).
The Commission also found that the decision to terminate
access taken in 1986 was justified within the meaning of Article 8
para. 2 (Art. 8-2) of the Convention as being necessary in a democratic society
for the purpose of protecting the health and rights of others, namely,
the child. The Commission notes that D. had been a victim of a series
of non-accidental injuries since his birth and though attempts had
been made to rehabilitate D. with his natural family, these had proved
unsuccessful. The Commission also on examination of the facts of the
case rejected the submission of the applicants that they were
insufficiently involved in the decision-making process. The
Commission recalls in this context that the applicants were invited to
make representations at three meetings with the local authority and
were then able to present their views concerning access and custody of
D. and seek a review of the situation. The Commission is therefore of
the opinion that the applicants have failed to establish an arguable
claim that their degree of involvement was not such as to show respect
for their family life.
In these circumstances, the Commission finds that the facts of
the case fail to disclose that the applicants have an arguable claim
that Article 8 (Art. 8) of the Convention has been breached. The Commission
accordingly finds no appearance of a breach of Article 13 (Art. 13) 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.
Insofar as the applicants invoke Article 13 (Art. 13) in relation to
their complaints of lack of access to court under Article 6 (Art. 6), the
Commission recalls that it has found the applicants' complaints under
Article 6 (Art. 6) incompatible ratione materiae with the provisions of the
Convention. It therefore follows that their complaint under Article
13 (Art. 13) in this regard must also be dismissed as incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)