T.S. AND D.S. v. THE UNITED KINGDOM

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61540/09
by T.S. and D.S.
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 19 January 2010 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 12 November 2009,

Having deliberated, decides as follows:

THE FACTS

The applicants, T.S. and D.S., are British nationals who were born in 1977 and 1965 respectively and live in Hailsham.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants’ daughter (“S”) was born on 23 February 2002. S was conceived with the assistance of IVF treatment and she is the applicants’ only child.

In December 2006 an anonymous call was made to the National Society for the Prevention of Cruelty to Children (“the NSPCC”), outlining a number of concerns about S. In particular, the caller said that she was inappropriately dressed, that she reported having seen “horrible things” on her father’s computer, and that her mother had described her as “sexy” while she posed for a photograph. The NSPCC reported the concerns to social services, who contacted the applicants but felt that no further action was necessary. The applicants, however, were convinced that the call had been made by a teaching assistant at S’s school. They visited the school, where they became “angry and vociferous” and the headmistress threatened to call the police. They then visited the home of the teaching assistant who they believed had called the NSPCC, but she was not there.

The applicants subsequently removed S from school. In or around April 2007 S reached compulsory school age. Although the applicants indicated that they were looking for a new school and that S was being home-schooled in the meantime, there was no evidence to support either of these claims and they subsequently admitted that they had misled the authorities.

The applicants are dog breeders and on or around 25 March 2007 a police officer visited their home following the theft of a puppy. She described the kitchen as clean and tidy and observed that S behaved in an appropriate manner.

On 19 April 2007 two inspectors from the Royal Society for the Prevention of Cruelty to Animals (“the RSPCA”) visited the applicants’ property after receiving information that the tails of their dogs had been docked. The applicants were verbally aggressive and the inspectors left the property. They subsequently obtained a warrant under the Animal Welfare Act and, on 25 April 2007, four police officers, two RSPCA officers and a vet went to the applicants’ property to execute the warrant. On entering the conservatory they saw a large pool of urine on the floor and piles of dog faeces throughout. The whole house smelt strongly of ammonia and urine. A number of dead rabbits, which were used to feed the dogs, were spread around the house with trails of blood and entrails. There were blood stains on unwashed floors and a mincing machine in the front room close to S’s clothing. The family bedroom contained only a tattered double mattress and the ceiling was partially collapsed above the bed. S was naked from the waist down and wearing only a grubby pink t-shirt. The applicants later attributed the state of the property to “the raid” and said that it was clean before the police arrived. They also explained that they were looking after additional dogs which belonged to a friend, and that the lack of clothes and furniture could be explained by the fact that the family was preparing to move.

Following the visit a police officer requested that protective measures be taken in respect of S and authorisation was given for her to be removed from the property. She was taken first to a police station, where she told a police officer that she had seen her father, the first applicant, “having sex with his girlfriend on his computer”.

S was placed with foster carers. Following the placement she stated that she did not wish to see the applicants.

On 26 April 2007 a social worker visited the applicants’ property. Although some cleaning had been carried out, the applicants refused to engage with the social worker and instead insisted that they were perfect parents.

Contact was arranged for 31 April 2007. On arrival at the contact centre, the first applicant became extremely upset and angry. S was distressed by his behaviour and at times was seen to be “shaking with fear”.

The local authority initially planned to rehabilitate S to the applicants. They applied for an interim care order with a care plan that S would remain in care until assessments of the applicants could be carried out. In a judgment dated 31 July 2007, a High Court Judge found that the threshold criteria for making an interim care order had been met as S had suffered and was at risk of suffering serious harm in the applicants’ care. In particular, the judge observed that the removal of S from school and the living conditions in the applicants’ home provided reasonable grounds for believing that S was suffering significant harm. The judge also found that there was a risk of emotional damage because the applicants could not control their anger and resentment towards others. The judge noted, however, that the risk to S’s physical well-being had diminished by July 2007 as a number of improvements had been made to the applicants’ property. The judge declined to make any findings on the basis of anything said by S, either concerning sexual activity that she may have witnessed or about not wanting to see her parents. The judge made an interim care order.

Directions were given at the beginning of August 2007 for the instruction of experts to move the case forward. The position statements of the applicants at that date, which were prepared while both were legally represented, indicated that they accepted the need for a global psychological assessment. Two expert psychiatrists were appointed to look at the psychiatric background to the case. By 17 August 2007 the applicants had dismissed their solicitors and counsel. They were acting in person and made it clear that they would only co-operate with a Dr W, who they considered was looking only at S and why she presented as she did. Dr W was able to conduct a three hour interview with the applicants but they subsequently refused to engage further with her and they refused to allow her to observe their contact with S. In her report Dr W described the applicants as having “a habitual style of oversensitivity, persistent grudge bearing, misconstruing friendly actions, a combative approach to their own rights out of keeping with reality and preoccupation with unsubstantiated conspirational explanations of events.” Without a process of assessment she found it very likely that S would experience further significant emotional harm if she were returned to the applicants’ care and that there was an additional risk of neglect.

Dr W concluded that there was no evidence either applicant suffered from psychiatric illness although there were concerns that they exhibited paranoid personality traits. As the issue of personality traits was considered to be a matter for a psychologist, she recommended that the applicants undergo a full psychological assessment.

On 5 December 2007 the judge ordered the continuation of the interim care order. The court also ordered a kinship assessment of S’s aunt and uncle. In the course of the hearing the applicants indicated their unwillingness to agree to any further assessments. The court urged them to seek legal advice as, in the absence of co-operation, the case would have to be set down for a final hearing.

Between the hearing and 17 December 2007, as a consequence of the first applicant’s behaviour at a contact session, he was asked to sign a Good Conduct Agreement. He refused to sign the agreement as he believed that it would be tantamount to admitting that he had done something wrong. On 21 December 2007 the judge again ordered the continuation of the interim care order. She also made an order permitting the local authority to suspend the first applicant’s contact with S until he signed the Good Conduct Agreement.

On 2 April 2008 the Court of Appeal refused the applicants’ applications for leave to appeal against the orders continuing the interim care orders, finding that there was no prospect of a successful appeal. The court strongly recommended, however, that the applicants obtain representation before the final hearing.

The case came before the County Court on 9 April 2008. The applicants had still not agreed to a psychological assessment, although the second applicant expressed her intention to instruct a solicitor. At the end of April the case was again before the court, and the second applicant indicated that she was willing to seek leave to instruct a psychiatrist. It became apparent, however, that her intention was to re-open findings of fact made in the judgment of 31 July 2007. Directions were given for the filing of position statements. When the case came back before the court on 24 May 2008, although position statements had been prepared the bundles were not ready and it was not possible to hear the applications before the court.

By the end of May the applicants had sought legal advice but had still not agreed to a psychological assessment. The case was listed for hearing at the end of August. The hearing could not proceed as planned as a positive kinship assessment of S’s aunt and uncle was undermined by allegations of indecent assault made against the uncle.

The application for a full care order came before the County Court in September 2008. By the date of the hearing, the first applicant had again dismissed his solicitor and barrister and he represented himself. The second applicant was legally represented.

Although the local authority had originally hoped to rehabilitate S to the applicants, their failure to co-operate throughout the proceedings forced the local authority to change their position. At the hearing the local authority’s final care plan was for a permanent placement outside the family, unless the applicants would agree to a full psychological assessment.

In the course of her evidence, the second applicant attributed her past behaviour to an internet site called “Forced-A”, which recommended that parents in the applicants’ situation refuse to co-operate with social services and refuse to be assessed by any experts until their children were returned.

In a judgment dated 18 December 2008, the judge found that the applicants’ behaviour in the course of proceedings demonstrated that S’s emotional welfare took second place to their need to validate their feelings of injustice. She reiterated that at the time the proceedings were taken, S was suffering significant harm from the neglect of her schooling, the environment in which she was living and the applicants’ inability to prioritise her needs over their own. With regard to the final care plan, the judge found that the first applicant had no intention of submitting to a psychological assessment. She also noted that if the second applicant were to agree to an assessment, she would be unlikely honestly to engage. In any case, she noted that an assessment of one parent only would be pointless. Finally, she considered that it would not be safe to return S to the applicants without such an assessment, and that S’s interests would not be served by any further delay. The judge could not make a final order in the terms requested by the local authority as S’s case had not been placed before a permanence panel. She therefore made a four-week interim care order.

The case came back before the judge in March 2009. It could not be considered earlier as there had been a failure to provide the permanence panel with the correct documentation in an appropriate form.

At the hearing the judge noted that there was no evidence which would require her to vary the conclusions that she made in December 2008. She therefore made a final care order, dispensed with the applicants’ consent and made a placement order. Given S’s age, she indicated that an order which did not allow for the possibility of direct contact between her and the applicants would be inappropriate, but that much work would have to be done before such contact could take place.

On 8 July 2009 the applicants were refused leave to appeal to the Court of Appeal.

B. Relevant domestic law

Section 31 of the Children Act 1989 provides for the making of care and supervision orders:

“(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) putting him under the supervision of a designated local authority or of a probation officer.

(2) A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the 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.”

The Adoption and Children Act 2002 provides for the making of placement orders:

“21 Placement Orders

(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.

(2) The court may not make a placement order in respect of a child unless—

(a) the child is subject to a care order,

(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(c) the child has no parent or guardian.

(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied—

(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or

(b) that the parent’s or guardian’s consent should be dispensed with.

... ... ...

52 Parental etc. consent

(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

(a) the parent or guardian cannot be found or is incapable of giving consent, or

(b) the welfare of the child requires the consent to be dispensed with.”

COMPLAINTS

The applicants complained under Article 6 of the Convention that there was a delay in fixing a date for a final hearing; that they were not provided with all of the supporting documentation; that the hearings were conducted in secret even though this was not required in the interest of morals, public order or national security; that the same judge presided over almost all of the hearings; and that the applicants’ solicitors were not acting in their best interests. The applicants further submitted that the removal of a child could be considered a criminal penalty and therefore warranted greater protection against arbitrary actions by the State.

The applicants also complained that the removal of S violated their rights under Article 8 of the Convention.

THE LAW

A. Alleged violation of Article 6 of the Convention

The applicants submitted that they were denied a fair and public hearing as required by Article 6 § 1 of the Convention. They further submitted that the removal of their child should be considered a criminal penalty and, as such, it should warrant greater protection against arbitrary actions by the State.

Article 6 of the Convention provided that:

“1. 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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

In the case of Davies v. the United Kingdom, no. 42007/98, 16 July 2002, the Court held that in deciding whether proceedings were conducted within a reasonable time the relevant factors were the complexity of the proceedings, the conduct of the parties and the importance of what was at stake for the parties.

In the present case, the Court considers it right to place special emphasis on the importance of what was at stake for the applicants in the proceedings in question, which were decisive for their future relations with their only child and had a particular quality of irreversibility.

Nevertheless, in conducting childcare proceedings a delicate balance has to be struck between the interests of the parents and the interests of the child. When a court is deciding whether a child should permanently be removed from her parents, it is important for the court to afford the parents adequate opportunity to demonstrate that the child can safely be rehabilitated, while at the same time recognising that if the child cannot be rehabilitated, any delay in ordering a permanent placement outside the home would not be in the child’s best interests.

In the present case the Court considers that the domestic courts appropriately balanced these two considerations. The local authority initially hoped that S could be rehabilitated to the applicants’ care, but considered that in the absence of positive psychiatric and psychological assessments the risk of harm to S was too great. The applicants, however, refused fully to engage with the psychiatrists and, after dismissing their legal representatives, they also refused to undergo a psychological assessment. While rehabilitation was still possible, it would have been inappropriate for the court to proceed to a final hearing. Before setting the case down for a final hearing the court made sure that the applicants were given every possible opportunity to agree to the assessment, that they were warned of the possible consequences of refusing to agree to the assessment, and that they were strongly advised on a number of occasions to obtain legal representation. The case was only listed for final hearing when it became clear that the applicants either could not be persuaded to agree to a psychological assessment or would not engage honestly with the psychologist.

The only “preventable” delay for which the authorities could be held responsible was the delay in making the placement order. Although the final hearing took place in September 2008, the judge could not make a final order in the terms requested by the local authority as S’s case had not been placed before a permanence panel. A delay in providing the permanence panel with the correct documents in an appropriate form delayed the making of a final placement order until March 2009. There is no indication of when the placement order could have been made had the placement panel been sent the correct documents in an appropriate form at the outset. It is unlikely, however, that the administrative error delayed the proceedings for more than two months.

Although this delay was regrettable, in view of the diligence with which the proceedings were otherwise conducted, by itself it is not enough for the Court to find that the proceedings were not concluded within a “reasonable time”. Accordingly, the applicants’ complaint about the length of the proceedings is manifestly ill-founded.

The Court further finds that the applicants’ other complaints under Article 6 are also manifestly ill-founded. They have not indicated which documents they did not receive and they do not appear to have raised any such complaint before the domestic courts. Article 6 § 1 permits the exclusion of the public from a trial not only where it is in the interests of morals, public order or national security, but also where the interests of juveniles so require. The Court considers that cases concerning the custody of children are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice (B. and P. v. the United Kingdom, nos. 36337/97 and 35974/97, § 38, ECHR 2001‑III). Moreover, it is common in childcare proceedings for one judge to preside over a case from beginning to end. The proceedings are complex and require a good understanding of the facts and the personalities concerned. Any appeal against that judgment would, of course, be considered by a different judge sitting in a different court. There is therefore no evidence to suggest that the mere fact that the majority of hearings took place before one judge was enough to impact upon the independence or the impartiality of the court. Finally, the applicants have submitted no evidence to substantiate their claim that their solicitors were not acting in their best interests; on the contrary, it would appear that the applicants’ solicitors were advising them to co-operate with social services but the applicants were unable to accept that advice and instead preferred to follow the advice on the website “Forced-A”. In any case, even if the applicants’ solicitors were negligent, their actions are not attributable to the State.

The Court does not accept that the removal of the applicants’ child should be considered a criminal sanction. The removal of S was not a “punishment” or “sanction” for a criminal offence; rather, it was an administrative action taken by the local authority in order to protect S from significant harm.

B. Alleged violation of Article 8 of the Convention

The applicants’ second complaint was that the removal of S violated their rights under Article 8 of the Convention. Article 8 provided as follows:

“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.”

It is clear that the applicants had established a family life with S and that her removal amounted to a permanent interference with their right to respect for their family life. Without question, the challenged measures conformed to the requirements of domestic law and pursued the legitimate aim of protecting the rights of others, namely those of S. The principle issue to be determined is therefore whether the interference was “necessary in a democratic society”.

The Court reiterates that the question whether an interference was “necessary in a democratic society” requires consideration whether, in light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient” and whether the decision-making process was fair and afforded due respect to the applicants’ rights under Article 8 of the Convention (K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001‑VII).

In considering the reasons adduced to justify the measures, and in assessing the decision-making process, the Court will give due account to the fact that the national authorities had the benefit of direct contact with all of the persons concerned. It is not the Court’s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues (see, amongst many authorities, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §§ 71-72, ECHR 2001‑V (extracts) and R.K. and A.K. v. the United Kingdom, no. 38000/05, § 34, 30 September 2008). The Court reiterates that the authorities enjoy a wide margin of appreciation when assessing the necessity of taking a child into care Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002‑I).

In the present case the initial reason adduced to justify taking S into local authority care was the condition of the psychical environment in which she was living. While the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents, the Court finds that the physical condition of the applicants’ property on 25 April 2007 could reasonably be considered to justify the removal (see K. and T. v. Finland, cited above, at § 173).

The applicants’ subsequent behaviour raised concerns about their mental state to the extent that the local authority did not consider that it was safe to return S to their care in the absence of a positive psychological assessment. The applicants were given numerous opportunities to agree to a psychological assessment, but repeatedly refused to do so. In view of S’s age, the proceedings could not be postponed indefinitely and as S could not be rehabilitated, the applicants’ consent was dispensed with and a placement order made.

The order was made with a certain reluctance as this was a case in which it was considered from the outset that S could be rehabilitated: the two primary concerns, which were the applicants’ living conditions and S’s school attendance, were capable of being monitored regularly by social services had S been returned to the applicants. The applicants’ approach to the proceedings, however, demonstrated a reluctance to engage with social workers which raised concerns that if S were returned to them, it would be extremely difficult for the local authority to monitor the situation. The applicants’ refusal to agree to a psychological assessment and their unwillingness to engage with social services directly resulted in the local authority changing the care plan from rehabilitation to a permanent placement outside the family.

While it is regrettable that a case initially considered suitable for rehabilitation should result in a permanent placement outside the family, the Court is satisfied that the local authority at all times acted in the best interests of the child, S. The Court finds that there were relevant and sufficient reasons for keeping S in local authority care and changing the care plan to a permanent placement outside the family. In particular, the Court observes that the local authority’s view that S could not safely be returned to the applicants without a positive psychological assessment was supported by the expert evidence. Moreover, the Court has regard to the fact that the domestic authorities had direct contact with all of the parties involved, which enabled them to assess the applicants’ capacity for engaging both with the local authority and with the medical experts. The Court therefore finds that the decision permanently to place S outside the family was within the wide margin of appreciation afforded to the State in child custody cases. The Court is also satisfied that the authorities gave due account and procedural protection to the applicants’ interests throughout the decision-making process.

The foregoing considerations are sufficient to enable the Court to conclude that the applicants’ complaints under Article 8 of the Convention are also manifestly ill-founded and therefore inadmissible.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence EarlyLech Garlicki
RegistrarPresident

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