AS TO THE ADMISSIBILITY OF
Application No. 17071/90
by W.
against the United Kingdom
The European Commission of Human Rights sitting in private
on 7 January 1991, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 8 August 1990
by W. against the United Kingdom and registered on 24 August 1990
under file No. 17071/90;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen resident in S. H.
She is represented by Mr. S.G. Lesson, a solicitor practising in South
Harrow. The facts as submitted by the applicant may be summarised as
follows.
The applicant is mother of three children, J. born on
25 November 1979, D. born on 18 March 1981 and R. born on
14 May 1983. Following separation and divorce from her husband, the
applicant had custody of the children. The applicant experienced
problems with her ex-husband and was granted a non-molestation order
and exclusion order against him by the Court. Her ex-husband was also
committed to prison for 28 days for breach of these orders. The
applicant's ex-husband continued to enjoy access visits in respect of
J. and D.
On 31 May 1986, during an access visit, the applicant's
ex-husband took J. and D. to hospital alleging that they had been hit
by the applicant. The same day J. and D. were made the subject
of a Place of Safety Order by the local authority (London Borough of
Harrow) as a result of bruising which the applicant said could only have
been caused as a result of the children fighting together and falling
over. The consultant paediatrician took the view that J.'s bruising had
been inflicted in a non-accidental manner: he was uncertain about the
injuries to D.
On 4 June 1986, the local authority held a case conference.
The applicant had asked to attend but had been refused permission.
She was allowed to make written submissions. Following the case
conference, the applicant's children were returned home, but all three
children's names were placed on the Child Abuse Register, a record which
is available to certain public bodies. The record of J. read:
"3. Nature of injury and by whom inflicted, whether child
abuse has been substantiated: bruise on back and forehead,
graze on side of nose, near eye (black eye), inflicted
by mother. Child abuse substantiated."
The applicant considered that there had been a breach of
natural justice since she had not been present at the case conference
nor been able to refute any allegations made against her at that
conference in respect of both the incidents in question and previous
history of the family. For example, it was mentioned at the
conference that J. had previously been on the Child Abuse Register, a
fact of which the applicant was ignorant and other criticisms had been
made concerning her care of her children. She instituted proceedings
for judicial review in seeking to quash the decision to place her
children's names on the register.
Leave was granted on 2 October 1986 by the High Court. The
application for judicial review was heard before the High Court on
25 November 1988. The applicant was represented by counsel and
solicitor. Following the hearing, the judge held that the failure to
invite the applicant to attend the case conference could not be
considered unfair or unreasonable in the circumstances of this case,
when the local authority had before it the applicant's account of the
bruising given to the consultant paediatrician and her written
submissions. He therefore dismissed the application.
The applicant appealed to the Court of Appeal. Following a
hearing on 28 July 1989, at which the applicant was represented by
counsel, the Court of Appeal held that neither the procedure followed
nor the result offended the requisite principles of fairness. It
emphasised that entry on a register constitutes neither a finding of
fact, even less a finding of guilt and dismissed the appeal. Leave to
appeal to the House of Lords was refused on 14 February 1990.
RELEVANT DOMESTIC LAW AND PRACTICE
Both case conferences and abuse registers are non-statutory
procedures utilised by local authorities in fulfilling their statutory
responsibilities to promote the welfare of children (see e.g. Section
18 of the Child Care Act 1980) and to make enquiries where
information is received which suggests that there are grounds for
bringing care proceedings (Section 2 of the Children and Young
Persons Act 1969).
In a draft guide published by the Department of Health and
Social Security to advise local authorities (Child Abuse: Working
Together. A guide to arrangements for interagency co-operation for the
protection of children) case conferences are described as follows:
"2.16 Case conferences are an essential feature of interagency
co-operation. They provide a forum for the exchange of
information between professionals involved with the child
and family (see paragraphs 2.23 to 2.28) and allow for
interagency, multidisciplinary discussion of:
(a) allegations or suspicions of abuse;
(b) the outcome of investigation;
(c) assessments for planning;
(d) an action plan for protecting the child and
helping the family;
and
(e) reviews of the plan.
...
2.17 For reasons of both efficiency and confidentiality the
number of people involved in a case conference should be
limited to those with a need to know and a contribution to
make to the tasks involved.
...
2.18 A case conference is an inter-professional meeting but
on occasion it may wish to invite a non-professional who is
working with the child or family; for example, foster
parents or volunteer workers. In this event, the key worker
or the professional most closely involved with the
non-professional should undertake to brief him or her
beforehand about the purpose of the conference, the duty of
confidentiality and the primacy of the child's interests
over that of the parents if a conflict of interest arises.
...
2.24 From the outset, it is important that parents or carers
are kept fully informed about the basis of an investigation or
intervention. They need to know the reasons for
professional concern, the statutory powers, duties and roles
of agencies involved and the changes in the family's
situation which the agencies consider necessary or desirable
in the interests of the child. Openness and honesty and the
ability of professional staff to confront parents with
reality are an essential basis on which to build a
foundation of understanding that may lead to change.
2.25 The key worker and other professionals, individually and
jointly, will need to decide how best to involve parents in
assessment, planning and review. It may be helpful for the
key worker and one or more members of the core group to meet
as a group with parents from time to time in the course of
work with the family. Such meetings, however, should be
clearly distinguished from formal interagency case
conferences. It is not appropriate for parents to attend
the latter which are professional meetings focused on the
details of interagency co-operation to protect the child and
plan for the future. It is important, however, that case
conferences, wherever possible, are given clear and
up-to-date accounts of the views and wishes of parents and
other close relatives. ..."
COMPLAINTS
The applicants complains of a breach of Article 6 para. 1 of
the Convention. She submits that she was deprived of a fair hearing
since she was not informed in advance of the allegations to be made in
respect of her care of her children, in particular, the alleged
assault on 31 May 1986 or to be present at the case conference.
The applicant also complains that the above matters
constituted a violation of her right to respect for her family life
guaranteed under Article 8 of the Convention.
THE LAW
1. The applicant complains that she did not receive a fair
hearing at a case conference held by the local authority since she was
not informed in advance of the allegations to be made or allowed to be
present. She invokes Article 6 para. 1 (Art. 6-1) of the Convention,
which, in its first sentence, 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 notes that the above provision of the
Convention guarantees to everyone a fair hearing in the determination
of his civil rights and obligations or of a criminal charge against
him. The Commission must therefore consider firstly, 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 and secondly, whether there was a criminal charge.
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, p. 29, 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 Commission notes that there is no right in English law for
parents to attend case conferences. The Commission also notes that
the case conference in question reached the decision to place the
applicant's children on a Child Abuse Register, which had no effect on
the applicant's continuing custody of the children. The Commission
accordingly finds that the case conference did not involve the
determination of any of the applicant's civil rights within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission also recalls that the applicant was not charged
with assault or faced with any criminal proceedings in respect of the
incident. It notes the finding of the Court of Appeal, that the
decision by the case conference to place the children's names on the
register did not constitute a finding of guilt. The Commission
therefore finds that no criminal charge was in issue in the case.
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. The applicant has also complained that the refusal to allow
her to attend the case conference constituted a violation of her right
to respect for her family life within the meaning of Article 8 (Art. 8)
of the Convention.
Article 8 (Art. 8) of the Convention 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 has examined whether the refusal to allow the
applicant to attend the conference constituted in itself an
interference with the applicant's rights under the above provision.
The Commission recalls that the case conference discussed the bruising
found on the applicant's children and any further action to be taken
by the local authority. The decision taken was to place the
children's names on the Child Abuse Register. No decision was taken
adversely affecting the applicant's custody or access to her children.
Even assuming, however, that the refusal to allow the applicant to
attend constituted an interference under Article 8 para. 1 (Art. 8-1)
of the Convention, the Commission finds that it was justified under
the second paragraph (Art. 8-2) as being in accordance with law and as
being necessary in a democratic society for the purpose of
safeguarding the health and rights of others, namely, J., D. and R.
The Commission notes the fact that the applicant was able in any event
to present written submissions. The Commission has had regard also to
the fact that the applicant has also not shown that she suffered any
prejudice from the inclusion of the children's names on the register
and to the finding of the Court of Appeal that the inclusion of names
on the register constituted neither a finding of fact nor of guilt.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
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