AS TO THE ADMISSIBILITY OF
Application No. 26729/95
by Helen Stockford
against the United Kingdom
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, 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 17 March 1995 by
Helen Stockford against the United Kingdom and registered on 17 March
1995 under file No. 26729/95;
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 facts as submitted by the applicant can be summarised as
follows:
The applicant is a British citizen, born in 1969 and resident in
Southmead, Bristol.
a. Particular circumstances of the case
The applicant gave birth to a son, ("J"), on 4 April 1992. She
also has another son ("K"), born on 26 May 1989. For the first 21
months of his life J was brought up by the applicant and the
applicant's mother, Mrs. L, in whose house they all lived.
Between July 1992 and January 1994, the applicant brought J to
Southmead hospital on numerous occasions (during certain periods, every
three to four days) claiming that J had been having fits during which
his lips would turn blue and he would shake. On 6 April 1993 J was
diagnosed as epileptic and prescribed CPZ, starting at 50 mg per day
to be increased to 100 mg.
Between August and November 1993 J was admitted to hospital on
five occasions and the applicant reported a total of 13 fits, three
blackouts and possible faints on four or five occasions, none of which
were observed in hospital. On many of these occasions he had symptoms
of vomiting, ataxia and drowsiness. On 21 October 1993, the CPZ level
in J's blood was found to be higher than it should have been.
On 18 December 1993 the applicant reported screaming fits and
head banging. J was seen by Dr. S. He carried out neurological tests
that proved negative.
On 6 January 1994 the applicant brought J into casualty, but
there were no beds and J was therefore discharged. On 7 January J was
brought back to casualty and discharged the next day. On 9 January J
was readmitted, then again on 10 January and he remained in hospital
until 13 January 1994 when he was again discharged. On 13 January the
applicant called an ambulance, the note from which indicates that
either a post-epileptic seizure state or the effects of an overdose of
CPZ were witnessed. J remained in hospital until the morning of 21
January when he was discharged having had an MRI scan the previous day
that was normal. J was readmitted on the evening of the same day
having suffered another fit. A blood sample was taken at 21.45 hours
that showed blood levels of CPZ at the very top of the therapeutic
range. J remained in hospital. Dr. S, who had been treating J since
December 1993, believed that J had suffered the effects of an overdose
of CPZ.
On 27 January 1994, while J was in hospital, Avon County Council
("the Council") obtained an emergency protection order which prevented
the applicant from taking J out of hospital. On 4 February 1994, an
interim care order was obtained by the Council and, on discharge from
hospital, J was entrusted by the Council to foster parents. It appears
that J did not suffer another fit until 12 months after having been
taken into care.
The Council sought and obtained the emergency protection order
and the interim care order on the grounds that Dr. S. believed that the
applicant had, on two occasions, intentionally given J overdoses of the
medication that had been prescribed for his epilepsy.
Subsequent to the interim care order, the Council sought expert
advice on the psychological state of the applicant from Dr. B in order
to decide whether J needed to be kept in care such that a permanent
care order should be applied for. Dr. B saw the applicant on several
occasions and submitted three reports. He found that the applicant was
likely to be suffering from Munchhausen by proxy, a syndrome whereby
a mother imagines or actually causes illness in her child.
On 4 July 1994 a social worker filed a report recommending that
a full care order be made to enable the Department to plan for a
permanent adoptive family for J and on 18 July 1994 the applicant's
solicitor, acting without the applicant's consent, agreed to the making
of a care order. On 20 July 1994 the applicant sought advice from new
solicitors who filed an application to set aside the care order.
On 3 November 1994 the application to set aside the care order
came before Judge C in the Bristol County Court. Judge C agreed to set
aside the care order and to re-fix the hearing as regards the granting
of a care order under section 31 of the Children Act 1989 for 30
January 1995.
On 20 January 1995 the applicant married Mr. Stockford, J's
natural father.
The hearing started on 30 January 1995 and lasted eight days.
There were 441 pages of written statements and reports and 529 pages
of hospital and nursing records before the court. The court heard
evidence on behalf of the Council from Dr. S, consultant Community
Paediatrician, the health visitor, two nurses who had treated J, the
social worker in charge of J's case and J's two foster carers. The
court also heard witnesses of the court: Dr. T, consultant Paediatric
Neurologist, Dr. B, consultant psychiatrist (both of whom were
originally engaged by the applicant's solicitors to be the applicant's
expert witnesses) as well as witnesses for the applicant: two friends,
her sister, an ambulance driver and Dr. F, consultant neurologist.
Further evidence was heard from Mrs. L (the applicant's mother) and Mr.
Stockford in support of their applications for care of J. Finally the
guardian ad litem gave evidence. On 17 February 1995 a long and
detailed judgment (47 pages) was given.
The Council argued that J had suffered and was likely to suffer
significant physical harm if a care order was not made. It alleged that
the applicant had caused the child to be admitted to hospital on
numerous occasions either because she had exaggerated the symptoms that
he was suffering or caused them by giving him overdoses of CPZ. The
applicant emphatically denied that she had exaggerated any of J's
symptoms or that she had overdosed the child. Judge C considered that
she had to decide the following issues:
1. Had the applicant fabricated or exaggerated J's symptoms ?
2. Had the applicant overdosed J with CPZ on at least two
occasions ?
3. If, to some extent, 1. is proved, and certainly 2. is
proved, is J suffering from significant harm ? If he is,
is he likely so to suffer if he is returned to live with
mother ?
4. If the criteria are satisfied should there be a care order
or a supervision order ?
Prior to the hearing Dr. T, originally the expert witness for the
applicant, and Dr. S, the doctor who cared for J from December 1993 to
February 1994 and acted as expert witness for the Council, agreed on
the following points:
1. that the applicant suffers from epilepsy with some pseudo-
seizures,
2. that J may have suffered some epileptic seizures, the
description of the attacks depending on the applicant, Mrs. L,
members of family and their friends,
3. that the symptoms of ataxia, drowsiness and vomiting are
classic symptoms of CPZ intoxication,
4. that the records show probable overdosing on 21 October
1993 and 21 January 1994, the results of the ambulatory EEG on
26 January 1994 are consistent with overdosing of CPZ,
5. that it is unlikely that if J had suffered fits of the
frequency and severity described by the applicant, his recovery
would have been immediate,
6. that J had remained free of seizures for 12 months.
Evidence from Dr. T was that he did not have any doubt that the
child was intoxicated with CPZ on occasions and that it seemed to him
that that intoxication must have been deliberate.
The Judge came to the following conclusions:
1. That the applicant had exaggerated J's symptoms but that
she probably did this because she actually saw them as worse than
they in fact were.
2. That the applicant did overdose J on at least the two
occasions alleged and that there was an inference, though not
nearly so strong, of overdosing on other occasions in view of the
symptoms suffered by J. That the overdosing was probably done
consciously, particularly if the applicant felt happier to have
J in hospital.
3. That evidence of significant harm was overwhelming, stays
in hospital being responsible for developmental delay and
interrupting a young child's life leading to instability and the
tests and scans being distressing procedures for a small child.
Further, that the risk of future harm if J was returned to the
applicant was too great, taking into account the fact that J had
had tantrums and head banging fits for which the applicant must
to some extent be held responsible and that he was coming up to
a crucial age when he must finally be settled or his whole life
would be affected.
The Judge therefore made a full care order with leave to the
Council to terminate, at its discretion, direct contact between J and
his mother, father and grandmother, subsequent to which J would be
placed for adoption whereupon direct contact with the natural family
would cease. She stated that it was in the child's best interests for
J to cease seeing his natural family, including Mrs. L, because such
contact would be likely to destabilise the adoption placement.
On 28 February 1995 junior counsel advised the applicant that the
chances of a successful appeal were minimal as there was a great deal
of uncontested medical evidence against her and the Judge had applied
the law correctly. On 21 February 1995 Mrs. L received advice to the
same effect from her counsel.
On 28 February 1995 the applicant received a letter from the
Council that visits by the applicant should be once per week for the
first month then once per fortnight until the hearing of the
application for J to be freed for adoption. Mr. Stockford should have
contact once a month.
Since April 1995 it appears that J has had two short seizures
while in the care of foster parents. Dr. T and Dr. S have both been
asked to comment on whether these seizures throw any doubt on their
previous conclusions. Dr. S did not consider the two episodes since
April to alter his opinion that J could not have had seizures
approaching the frequency and severity as originally described by the
applicant.
On 19 September 1995 the Bristol Court ordered that the
permission of the applicant for the purposes of the adoption of J be
dispensed with and on 20 September made a freeing order in favour of
the Council, whereby J was "freed" for the purposes of adoption.
b. Relevant domestic law and practice
A care order is applied for and made under section 31 of the
Children Act 1989 which provides, so far as relevant:
(1) On the application of any local authority or
authorised person, the court may make an order-
(a) placing the child with respect to whom the application
is made in the care of a designated local authority; or
(b)....
(2) A Court may only make a care order or supervision
order if it is satisfied-
(a) that the child is suffering, or is likely to suffer,
significant harm; and
(b) that harm, or likelihood of harm, is attributable to-
(i) the care given to the child or likely to be
given to him if the order were not made, not being what it
would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control.
(9) "harm" means ill-treatment or the impairment of health
or development;
"development" means physical, intellectual, emotional,
social or behavioural development;
"health" means physical, intellectual, emotional,
social or behavioural development;
"ill-treatment" includes sexual abuse and forms of
ill-treatment which are not physical.
(10) Where the question of whether harm suffered by a child
is significant turns on the child's health or development,
his health or development shall be compared with that which
could reasonably be expected of a similar child."
COMPLAINTS
The applicant claims that her child J has been wrongly taken out
of her care and wrongly put up for adoption. She asserts strongly that
she would never have harmed her child and claims that the high level
of CPZ in J's blood on 21 October 1993 was due to confusion between
Southmead hospital and her General Practitioner over the medication to
be prescribed to her son.
She claims that on 21 January 1994 the level of CPZ in J's blood
was taken by a doctor ("A") who had left the country at the time of the
trial and was not therefore cross-examined. She asserts that this
doctor took the CPZ levels after J was given his CPZ, not before as
claimed in his statement. She claims that when J was put into care on
26 January 1994, she was deeply shocked at the allegation that she had
overdosed him as she would never have harmed her children and went to
see Dr. A. She claims Dr. A said that the high levels of CPZ on 21
October 1993 could be accounted for by the hospital since there had
been a mix up over J's medication. The applicant complains about the
fact that Dr. A and the nurses involved on 21 January 1994 were not
called as witnesses at the hearing on 30 January 1995.
The applicant further complains that the trial Judge only took
into consideration the medical side of the case and did not consider
her witnesses and in particular the evidence of her sister who was in
hospital with the applicant on 21 January 1995.
She claims that because legal aid has been refused she cannot
appeal again the decision.
THE LAW
The applicant complains about the taking into care of her son.
Although she does not specifically invoke any of the articles of the
Convention, the Commission considers that the applicant's complaints
must be considered under Article 8 (Art. 8) of the Convention.
Article 8 (Art. 8) provides as relevant:
"1. Everyone has the right to respect for his ... 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 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 finds that the taking of the applicant's child
into care interfered with the applicant's right to respect for her
family life as ensured by Article 8 para. 1 (Art. 8-1) of the
Convention. It is therefore necessary to examine whether this
interference was justified under Article 8 para. 2 (Art. 8-2), for
which three conditions must be satisfied: the interference must be "in
accordance with the law", it must pursue one or more of the legitimate
aims enumerated in paragraph 2 of Article 8 (Art. 8-2) and it must be
"necessary in a democratic society" to achieve any one of those
legitimate aims (Eur. Court H. R. Olsson judgment of 24 March 1988,
Series A no. 130, p. 29, para. 59, referring to Eur. Court H. R. W. v.
UK judgment of 8 July 1987, Series A no. 121, p. 27, para. 59).
There is no indication in the application, nor is any claim made,
that the interference was not "in accordance with the law". The Judge
found that the criteria laid down in section 31 of the Children Act
1989 were fulfilled, namely that J suffered serious harm and that there
was a significant risk that J would suffer harm in the future if
returned to the care of the applicant. In these circumstances, the
Commission finds that the decision in question was taken "in accordance
with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
The Commission is furthermore of the opinion that the
interference had a legitimate aim under Article 8 para. 2 (Art. 8-2)
namely the interests of the child and as such must be regarded as
effected 'for the protection of health or morals' and 'for the
protection of the rights and freedoms of others' within the meaning of
Article 8 para. 2 (Art. 8-2).
It remains to be determined whether the interference was
"necessary in a democratic society" in the interests of the child.
According to the established case-law of the European Court of Human
Rights, 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. In determining whether
an interference is "necessary in a democratic society", the Commission
furthermore has to take into account the margin of appreciation 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
(see eg. above mentioned Olsson judgment, para. 67). The Commission
would observe in this context that it is not its task to take the place
of the competent national courts and make a fresh examination of all
the facts and evidence in the case.
The Convention organs retain nonetheless a supervisory
jurisdiction which is not limited to ascertaining whether a respondent
State has exercised its discretion reasonably, carefully and in good
faith. It must determine whether the reasons adduced to justify the
interference at issue are "relevant and sufficient" (see above
mentioned Olsson judgment, para. 68). A decision to take a child into
care must be supported by sufficiently sound and weighty considerations
since such a decision is a serious interference with the right
protected under Article 8 para. 1 (Art. 8-1). In order to determine
whether in the present case the reasons can be considered "relevant
and sufficient" for the purposes of Article 8 (Art. 8), the Commission
has had regard to the basis on which the court reached its decision.
The Commission notes the enormous amount of evidence before the
court, the thorough and detailed consideration of that evidence in the
course of an eight day hearing, including rigorous cross-examination
of the witnesses for the Council and the court by leading counsel
representing the applicant and the fact that expert witnesses
originally intended to represent the applicant actually gave evidence
that did not support her case. In particular it recalls the
substantially agreed medical evidence of Dr. S and Dr. T that the
applicant had overdosed J on CPZ and exaggerated his symptoms, the
psychiatric evidence of Dr. B. that the applicant was suffering from
Munchhausen by proxy (the inducement of illness in one's child), the
careful and detailed judgment of Judge C, and the clear advice by the
applicant's counsel and Mrs. L's counsel that the weight of the medical
evidence was against the applicant.
The Commission recalls that as a general rule it is for the
national courts to assess the credibility of witnesses and the evidence
before them. The Commission notes that the Judge did not consider the
applicant a credible witness and chose rather to believe the medical
evidence given by Drs. S, T, and B, which was largely against the
applicant. On this basis, the Judge concluded that to return J to the
applicant would involve a significant risk to J's health. In
particular, she found that the evidence of J having suffered
significant harm was overwhelming, stays in hospital being responsible
for developmental delay, interrupting a young child's life leading to
instability and tests and scans being distressing procedures for a
small child. Further, she considered that the risk of future harm if
J was returned to the applicant was too great, taking into account the
fact that J had had tantrums and head banging fits for which she
considered the applicant must to some extent be held responsible and
that he was coming up to a crucial age when he must finally be settled
or his whole life would be affected.
In the light of the above, the Commission considers that the
court had sufficient evidence before it to come to the conclusion that
there was a significant risk that J would suffer harm if he were
returned to the applicant such that the reasons for J's removal are
"relevant and sufficient" for the purposes of Article 8 (Art. 8) of the
Convention.
As regards whether there were adequate procedural safeguards to
ensure respect for the applicant's family life, the Commission recalls
that the applicant has alleged that the failure of the court to hear
Dr. A, who had left the UK by the time of the trial, and the nurses who
were present on 21 January 1994, materially affected the outcome of the
case.
The Commission notes that there is no evidence that the
applicant's counsel tried to call Dr. A or the two nurses. Further,
the Commission recalls that the decision to take the applicant's child
into public care was arrived at following thorough investigation by the
Social Services and an 8 day oral hearing before the County Court. The
applicant was present at the hearing and was represented by leading and
junior counsel. The applicant had the possibility of presenting any
views which in her opinion would be decisive for the outcome of the
case.
In the circumstances, the Commission is of the opinion that the
procedure applied has provided the applicant with the requisite
protection of her interests (see above mentioned W. v. UK judgment,
para. 62-63). The Commission accordingly finds that, bearing in mind
the margin of appreciation accorded to the domestic authorities, the
interference in the present case was justified under the terms of
Article 8 para. 2 (Art. 8-2) of the Convention as being "necessary in
a democratic society for the protection of health and for the
protection of rights of others.
As to the applicant's complaint that she could not appeal against
the judge's decision to grant a care order because she was refused
legal aid, the Commission notes that she received a full hearing at
first instance, where she was represented by leading and junior counsel
and was able to raise any matters that she considered to be of
importance and that she received legal advice from her counsel that
there was little or no chance of successfully appealing the decision.
In these circumstances, the Commission does not consider that a refusal
to grant legal aid for an appeal against the decision of the County
Court constituted a lack of respect for her family life under Article
8 (Art. 8) of the Convention.
Insofar as the refusal to grant legal aid to appeal the decision
of the County Court might be considered under Article 6 (Art. 6) of the
Convention, the Commission recalls that in civil matters. Further,
refusal of legal aid on grounds of no reasonable prospect of success
is generally not incompatible with the provisions of the Convention
(see eg. No. 9353/81 dec. 11.5.83 D.R. 33 p. 133). In light of the
factors outlined above, the Commission finds no indication that the
applicant was denied effective access to court in the determination of
any of her civil rights as a result of the refusal of legal aid.
The Commission therefore considers the applicant's complaints
fail to disclose a violation of the provisions of the Convention and
the application must be rejected as 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 Second Chamber President of the Second Chamber
(M.-T SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy