AS TO THE ADMISSIBILITY
Application No. 12792/87
by Christopher and Linda Diane SAMPSON
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 July 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
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 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 March 1987
by Christopher and Linda Diane SAMPSON against the United Kingdom and
registered on 16 March 1987 under file No. 12792/87;
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 facts as they have been submitted by the applicants may be
summarised as follows:
The applicants are British citizens living in Weymouth,
Dorset. The first applicant is a civil servant, born on 25 December
1958. The second applicant is the first applicant's wife and is a
chambermaid, born on 17 July 1960.
The applicants were married on 25 February 1978. On 6 October
1978, they had their first child, A, a daughter. A was born by
Caesarean section, and there were a number of complications at birth as
a result of which A suffers from epilepsy and is slow moving down one
side of her body. The second applicant also suffers from epilepsy.
Following the birth of A the second applicant suffered severe
post-natal depression, and this combined with difficulties in the
applicants' marriage resulted in social workers becoming involved with
the family.
One morning when A had been crying continuously, the second
applicant, after trying to comfort her, became frustrated and threw A
into a chair which she bounced out of and hit her head on the side of
the wall. A was knocked unconscious and was taken to hospital where
she was found to have a fractured skull. The paediatrician, Dr. P. who
examined A, was of the opinion that she was paralysed down one side
and blind in one eye, and was likely to have learning and emotional
problems as she got older.
As a result of this instance, A was taken into care by the
local county council who administered the care and control of A
through their social services department, who placed A with foster
parents. The second applicant was prosecuted as a result of the
injury caused to A. She pleaded guilty and was placed on probation
for three years and obtained psychiatric help.
The applicants' relationship with each other improved and they
instituted proceedings in the Magistrate's Court to regain the care
and control of their daughter A. At first instance they failed and
appealed to the Crown Court where they succeeded. Wardship
proceedings were then instituted in the High Court by the foster
parents and the county council. The applicants failed in these
proceedings and care and control of A was awarded to the foster
parents. Both before and after these proceedings the applicants were
allowed limited access to A.
On 19 November 1982 the applicant had a second child, B, a
son, also delivered by Caesarean section. B is thought to suffer from
hereditary epilepsey. The applicants state that they were accused by
the paediatrician, Dr.P, of making B blind with gonococcus myocus from
gonorrhoea. The venereal disease tests were negative and the
allegations against the applicants were dropped. Following complaints
by the applicants concerning the allegations, a letter of apology was
sent to them by the hospital administrator.
B was originally on a child at risk register until July 1985
when he was removed from this register, as the applicants state that
they had shown themselves to be good parents. When B was two years
old, the second applicant became pregnant again. The applicants state
that, during this period, they were very happy and that access periods
with A were going very well.
On 17 August 1985, just after A had been left with the
applicants on an access visit, the first applicant took B to the
toilet. B made his own way to the top of the stairs where he was told
to wait. According to the applicants B tried to make his own way down
the stairs but fell. He was taken to the hospital and seen by Dr. P
who considered that the injuries sustained by B were not consistent
with a fall down stairs as there were bruises on the back of his legs.
The applicants state that these bruises were caused whilst B was
being put into a push chair during a temper tantrum, there being a
metal bar across the push chair at the front.
As a result of this incident involving B, the county council
obtained a place of safety order and a 28 day care order from the
Magistrate's Court. The county council then initiated wardship
proceedings in the High Court. It was at this time that the second
applicant was due to give birth to the third child, C. The applicants
were informed by the county council that, if they had any more
children, they would be taken away from them and put into care. The
applicants decided, as a result of this, that the second applicant
should be sterilised to remove this threat imposed upon them.
The applicants' third child, a son C, was born on 21 October
1985 by Caesarean section. The applicants made C a ward of court as
the county council were, at any rate, threatening to do this. A
hearing was scheduled for December 1985 but was postponed until
January 1986 due to the number of people listed to give evidence
on behalf of the county council.
In January 1986 there was a hearing in which the judge
considered the first applicant responsible for injurying B's frenulum
under his top lip. The other injuries, fractured collar bone,
slightly knocked front top tooth, cut to lower lip and bruises to
thighs, the judge was uncertain as to their cause. The applicants had
only one medical opinion to rely on at the hearing, as they state
their solicitors had failed to approach anyone else. The matter was
adjourned by the judge until July 1986 to allow for further reports to
be made. The judge advised the applicants to obtain a good
psychiatrist to show that they were capable parents and the applicants
were advised by their counsel that they had a lot of work to do in
order to sort matters out. The applicants state that as they were
very upset they were unable to grasp what was expected of them and
relied upon their solicitors to sort matters out.
Following the hearing in January 1986, B remained with the
short-term foster parents and C was allowed to stay with the
applicants. The county council appealed against the judge's decision
in January 1986, and the appeal was turned down in June 1986.
The applicants state that during the lead up to the July 1986
hearing they did not have proper consultations with their solicitors
in order to decide what was needed. They obtained for themselves a
psychologist, who turned out to be not sufficiently experienced in
cases such as the applicants'. They also obtained medical evidence
and attempted to obtain evidence from a forensic scientist.
The applicants state that, a week before the July hearing, the
first applicant was pressed by his solicitors and counsel into
admitting that he injured B and was told that if he did not admit
this, B would remain in care and C would be taken into care. The
first applicant was very confused and accepted the legal advice he
received and admitted to injurying B although he states that this was
not true.
At the hearing in July 1986 the judge was, in the applicant's
words, "disgusted" with the lack of work that the applicants had done
and with the first applicant's acceptance that he had injured B.
There was, however, no criticism of the way in which C was being
parented. The order of the judge was to release A for adoption
proceedings, provide for B to remain in long-term foster care and for
C to be placed with foster parents.
Following the hearing in July, the first applicant was advised
by counsel to swear another affidavit stating that he had not injured
B. The applicant sought a variation of the July order and leave for
an eminent psychiatrist to read the court's papers so as to be able to
do a report on the applicants. This was turned down on 22 August 1986
on the grounds that it was effectively an appeal against the judge's
order and an enquiry was made by the judge at the hearing concerning
the applicants' legal aid.
The applicants' counsel submitted advice on the appeal and
legal aid was revoked in spite of this advice. The applicants changed
their solicitors who obtained for them a new counsel. The applicants
state that the new legal advisers were critical of the applicants'
previous legal representatives' handling of the case. The applicant
successfully appealed against the revocation of legal aid and obtained
advice to appeal out of time. The application for leave to appeal out
of time was granted, but the appeal against the July 1986 order was
dismissed on 19 February 1987.
On 14 April 1987, the county council took out a summons
returnable on 24 April 1987 seeking leave to commence proceedings for
orders that B and C be freed for adoption and that access by the
applicants be terminated on the making of such an order and that leave
be given to place C with long-term foster parents.
COMPLAINTS
The applicants complain that their right to respect for
family life has been interfered with, contrary to Article 8 para. 1
of the Convention.
The applicants further complain that they have not received a
fair hearing as guaranteed by Article 6 para. 1 of the Convention in
respect of the proceedings in which they were refused care and control
of their children B and C. The applicants allege that their right to
a fair hearing was prejudiced by their legal advisers' neglect in not
obtaining proper medical and psychiatric evidence and their advice to
the first applicant to make a false statement under oath that he had
caused certain injuries to his son, B.
The applicants do not raise any complaints in relation to
their first child, A.
THE LAW
1. The applicants complain that their right to respect for
private and family life has been infringed by the High Court's refusal
to grant them care and control of their children B and C.
Article 8 (Art. 8) provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others."
The Commission recognises that according to its established
case-law the right to respect for family life extends to the
right of parents to have access to or contact with their children and
that the State may not interfere with the exercise of the right of
access otherwise than in accordance with the conditions set out in paragraph 2
of Article 8 (Art. 8-2) (cf. No. 911/60, Dec. 10.4.61, Collection 7 p. 7; No.
7911/77, Dec 12.12.77, D.R. 12 p. 192 and No. 6427/78, Dec. 13.3.80, D.R. 18 p.
225).
When deciding the question of care and control and access to
children, domestic courts may properly take into account under paragraph 2 of
Article 8 (Art. 8-2) the welfare of the child. When a domestic court has
refused a parent the right of care and control or access to his or her child,
the Commission nevertheless ultimately has a task to judge whether such refusal
is justified under the provisions of paragraph 2 of Article 8 (Art. 8-2).
In the present case the High Court at the hearing in July 1986
had evidence before it of two incidents in which two of the
applicants' children were injured. The High Court also had evidence
before it of how the children's best interests could be served, and on
the question whether or not granting the applicants care and control
would be in the children best interests, it appears the court must
have concluded that the risk of injury to the children dictated that
it was in their best interests that the applicants should not have
care and control of them.
In these circumstances the Commission, having regard to the
facts as submitted by the applicants, finds that there is nothing to
show that the courts acted otherwise than in the best interests of the
children in refusing the applicants care and control of their
children and that the measures taken in the case were in accordance
with and necessary in a democratic society for the protection
of the health of the children under Article 8 para. 2 (Art. 8-2) 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.
2. The applicants also complain that they have not received a fair hearing
as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention in respect of
the proceedings in which they were refused care and control of their children B
and C.
Article 6 para. 1 (Art. 6-1) of the Convention provides as far as
material:
"In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal
established by law".
The Commission notes that the children were made wards of
court and that accordingly the court had full jurisdiction to consider
any proposals made in respect of the children and to decide upon their
future from time to time by considering their best interests. The
applicants were parties to these proceedings and able to make whatever
submissions and applications to the court they considered appropriate.
The applicants contend in particular that their right to a
fair hearing was prejudiced by their legal advisers' neglect in not
obtaining proper medical and psychiatric evidence together with their
legal advisers' advice to make a false statement under oath that the
first applicant had caused certain injuries to his son B.
From the information submitted by the applicants there is
nothing to indicate that the proceedings about which the applicants
complain were unfair. The applicants obtained legal aid and were
represented by both solicitor and counsel at the hearings. With
regard to the applicants' allegations as to the effect of their legal
advisers' neglect, the Commission notes that the applicants new legal
advisers were critical of the previous legal advisers handling of the
case. The Commission however considers that the applicants have
failed to substantiate that any such failure reflected adversely on
the fairness of the proceedings as a whole, taking account of the
appointment of further representatives about whom no reproach has been
made.
The Commission therefore concludes that this complaint is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Insofar as the applicants' complaints are directed against
their former legal advisers' handling of their case, the Commission recalls
that, under the terms of Article 25 para. 1 (Art. 25-1) of the Convention, it
is only actions for which a High Contracting Party to the Convention is
responsible which can be the subject matter of an application. Hence the
Commission may not deal with applications against private individuals and it
follows that this part of the application is incompatible ratione personae with
the provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)