Application No. 18456/91
by Denise WERBICKAS
against the United Kingdom
The European Commission of Human Rights sitting in private on
31 August 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 7 February 1991
by Denise WERBICKAS against the United Kingdom and registered on 3 July
1991 under file No. 18456/91;
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 born in 1952 and resident in
Stockton.
The facts, as submitted by the applicant, may be summarised as
follows.
The applicant gave birth to her daughter F. on 13 November 1986.
She had already received treatment for depression and had been admitted
to hospital several times. Following the birth, she suffered from a
post-natal depression and was experiencing problems with her marriage
breaking down. On 7 February 1987, she was admitted to a psychiatric
unit with her baby. On 15 April 1987, the Social Services removed F.
from the unit, following a decision that mother and child should be
permanently separated. A case-conference had been held to which
neither she nor any of her family had been invited. The applicant
alleges that she asked for F. to be cared for by her own family pending
her discharge but that her request was refused. On 16 April 1987 F.
was made a ward of court and on 12 May 1987, her interim care was
confided to the local authority. Between April 1987 and July 1988, F.
remained with short-term foster parents.
The applicant was discharged from hospital on 22 June 1987.
On 19 October 1987, the court ordered that the applicant and F.
spend a period of time together in a special unit. The applicant
however discharged herself, considering that she did not require
hospital treatment and wanting to care for F. at home. The case came
for hearing before the High Court on 5 February 1988. The applicant's
solicitor had failed to prepare the case properly. No affidavits had
been filed. The court made an order to place F. with long-term foster
parents with a view to adoption and terminated the applicant's access
to F. The applicant's counsel had applied for an adjournment, but this
was refused.
It is unclear whether the applicant's solicitor failed to put in
any appeal against the decision or, having lodged an appeal, it was
dismissed. The applicant was merely told by her solicitor some time
after the hearing that the appeal had been dismissed.
On 20 March 1990, the Official Solicitor was appointed guardian
ad litem of F.
The applicant made an application for care and control of F,
which was heard on 30-31 October and 1 November 1990. The application
was dismissed and access of the applicant to F. was terminated, but the
applicant's solicitor was summoned to show cause why an order should
not be made in respect of their costs.
On 16 November 1990, the Court made an adoption order in respect
of F., dispensing with the applicant's consent.
In his report to the Court, the Official Solicitor recommended
that adoption was in the best interests of F. but criticised the local
authority as being precipitate in its decision to separate F. and the
applicant and for failing to try to rehabilitate them at an early stage
with the support of the applicant's extended family. He also
criticised "the failure of the legal processes to ensure that all of
the parties gained a full and fair hearing of their points of view...".
He added: "It is alarming that [the applicant] was so poorly
represented. What I find even more alarming is that the lack of proper
representation of [the applicant's] case was not picked up by those
other members of the legal profession who were present at the
proceedings. In terms of the best interests of F. a thorough hearing
at that point would have ensured that her future could have been
secured without the need for such delay and distress to all the parties
concerned ..."
The judge, when making the adoption order, also deprecated the
decision-making process followed by the local authority, in particular
their decision immediately to pursue the policy of adoption and not to
investigate more thoroughly the possibility of rehabilitating F. with
the applicant and her family. He also noted that the local authority
had not served affidavits until the day of the hearing on 5 February
1988 and that the applicant's solicitor had given no instructions to
counsel. He however concluded that in view of the possible risk of the
applicant suffering further health problems and the risk of taking F.
again from a settled environment where she had been for two years, it
was in F.'s interests to stay with her adoptive parents. The applicant
was advised by her legal representative that she had no grounds of
appeal.
The applicant has been advised that she has a claim for
negligence against her former solicitors, and proceedings have been
instituted.
COMPLAINTS
The applicant has complained that she was not involved in the
decision taken with respect to F.'s future while she was in hospital
and that the social services refused to allow F. to remain with the
applicant's family. She has also complained that she did not receive
a fair hearing in February 1988 and that she has been deprived of the
right to bring up F. as a Catholic (F. has been placed with
non-Catholic adopters).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 February 1991 and
registered on 3 July 1991.
On 2 December 1991, the Commission decided to communicate
the application to the Government and to ask for written
observations on the admissibility and merits of the application.
By letter dated 30 April 1992, the Government proposed
settling the case on the basis of an ex gratia payment of £3 000 and
paymant of reasonable legal costs. By letter dated 1 July 1992, the
applicant's solicitors informed the Secretariat that she had accepted
the settlement and no longer wished to continue with the case.
REASONS FOR THE DECISION
The Commission recalls that the applicant has accepted the
proposal of the respondent Government to settle the case and that she
no longer wishes to pursue the case.
In these circumstances the Commission finds that the applicant
does not intend to pursue her application before the Commission since
the matter has been resolved. The Commission further considers that
respect for Human Rights as defined in the Convention does not require
it to continue the examination of the application.
It follows that the application may be struck off the list of
cases pursuant to Article 30 para. 1 of the Convention.
For these reasons, the Commission unanimously
DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
Full & Egal Universal Law Academy