WILLS v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 20609/92

                      by Peter WILLS

                      against the United Kingdom

      The European Commission of Human Rights (First Chamber) sitting

in private on 13 October 1993, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

           Mrs.  M.F. BUQUICCHIO, 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 20 May 1992 by

Peter Wills against the United Kingdom and registered on

11 September 1992 under file No. 20609/92;

      Having regard to

-     the report provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      4 May 1993 and the observations in reply submitted by the

      applicant on 26 June 1993;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a British citizen born in 1936 and resident in

Weymouth. The facts as submitted by the parties may be summarised as

follows.

      The applicant married his present wife in 1988, his first wife,

the mother of his two sons having died.

      On 5 March 1988, the girlfriend (later the wife)  of the

applicant's younger son gave birth to twins J. and N..

      In April 1988, J. suffered a broken arm. In the subsequent

criminal proceedings for grievous bodily harm without intent, the

applicant's son pleaded guilty and was put on probation for one year.

      At a case conference held on 5 May 1988, the social services of

the local authority decided to keep the family together and to provide

support services.

      On 1 October  1988, N. was taken to hospital by her mother and

found to have suffered a skull fracture.

      On 6 October 1988, both parents were arrested. On 7 October 1988,

Place of Safety Orders were obtained in respect of the children.

      On 13 October 1988, an interim care order was made in favour of

the local authority and the twins were placed with short term foster

parents.

      On 30 January 1989, the parents, ie the applicant's son and his

girlfriend, were married.

      A full care order was made on 13 February 1989.

      In April 1989, the Area Manager decided that the twins should be

placed for adoption and that the parents' access be reduced to two

hours every six weeks.

      On 12 June 1989, the parents appeared in the Crown Court. The

mother pleaded guilty to neglect contrary to section 1 of the Children

and Young Person's Act 1933. The father pleaded not guilty and was

subsequently convicted of the same offence and sentenced to six months'

imprisonment plus  six months for breach of the probation order. The

mother was placed on probation for two years.

      On 2 August 1989, there was a meeting of the Adoption Panel at

which the decision to place the twins for adoption was confirmed. The

County Solicitor informed the meeting that the applicant's solicitor

had informed him that the applicant considered that he and his wife had

not been adequately considered or assessed as alternative carers for

the twins. As a result, on 16 August 1989, the Panel decided not to

implement the adoption procedure until an assessment of the paternal

grandparents had been carried out.

      An undated report was produced by a social services team manager

after six visits over a period of three months. The social worker had

been impressed by the grandparents, in particular, the applicant who

had shown sustained and sincere interest in the twins from the

beginning. She found them co-operative, strongly motivated and willing

to work with the social services. She mentioned the obvious problems

arising from the applicant's age (he was 54) and his wife's disability

(she had lost an arm) but commented that the applicant and his wife had

thought through the difficulties and would, inter alia, have someone

in the home to assist the applicant's wife.

      The report was the subject of discussion at a planning meeting

held on 18 January 1990 by the social services. It was decided to stay

the adoption until consideration had been given to the other

alternatives of placing them with the paternal grandparents  or with

the natural parents. They approached a medical expert, Dr. Bentovin,

who submitted an initial report in March 1990 in which he did not

support placement with the grandparents but criticised the drift and

delay on the part of the local authority. There was a further report

in May 1990 following a meeting with the natural parents in which he

expressed doubt that the twins could be safely rehabilitated with their

parents.

      The applicant's son's appeal against conviction was dismissed.

The local authority wrote to Dr. Bentovin proposing that the twins be

placed with their mother while the father served his sentence after

which the father could be given defined access with a view to eventual

rehabilitation. The doctor responded by pointing out that further delay

in finding a permanent placement was not in the twin's interests but

gave limited support to the assessment of the mother.

       On 13 July 1990, there was a meeting to discuss the case

attended by the professionals involved in the case. It decided that

rehabilitation with the mother begin immediately at a family centre.

      On 28 August 1990, the twins' foster parents moved and the twins

had to be placed with substitute foster parents, Mr. and Mrs. P..  Mrs.

P. stated that during her care of the children the grandparents would

visit alone and take the twins out for the day.  She found no problems

with these visits and was very aware of the love and bonding between

the twins and their grandparents.

      The rehabilitation programme however did not meet with acceptance

by the Director and/ or Deputy Director of the Social Services who

directed the Child Protection Officer to report on the proposals. In

her report of 24 October 1990, she concluded that in view of the

serious injuries suffered by N. there were insufficient reasons to

support deviation from the original plan of placing the twins

permanently elsewhere. Her recommendation of proceeding with the

adoption was ratified by the Director on  29 October 1990.

Consequently, the parents and grandparents were informed in December

that rehabilitation was no longer planned and an application was made

for a freeing for adoption order.

      On 7 March 1991, the twins were introduced to prospective

adopters.

      On 23 March 1991, the parents issued an application seeking a

discharge of the care orders. In light of this, the solicitors acting

for the grandparents requested that the local authority deferred their

intention of handing over the twins to the adopters on 1 April 1991.

      On 3 April 1991, the local authority placed the twins with the

prospective adopters.

      Throughout the placement of the twins in care the applicant

enjoyed access visits. While the twins were in foster homes, he and his

wife took them out one day per month unsupervised. After their

placement with the prospective adopters, the applicant and his wife had

access once every six weeks at the same time as the parents.

      Pursuant to the coming into force of the Children Act 1991, the

parents' application to discharge the care orders was transferred to

the High Court combined with the application by the local authority to

terminate access by the parents and the paternal grandparents. In these

proceedings the applicant and his wife were parties and represented.

      The guardian ad litem did not support the parents' application

and was opposed to face to face contact at the present time, favouring

indirect contact with both parents and paternal grandparents. She

commented that the case had been mismanaged by the social services who

had allowed the case to drift along. While she thought the twins had

to a certain extent been protected from the resulting uncertainty she

stated that the parents had had a terrible time neither being helped

towards rehabilitation nor supported in severing their links.

      In his judgment of 18 December 1991, the judge commented that:

           "In this case the accepts that

           unacceptable and avoidable delay occurred between August

           1989 and November 1990, a period of fifteen months and that

           the cause of that delay was a failure to ... `grasp the

           nettle'..."

      He did not find the parents' accounts of the injuries credible

and noted that whatever their cause they failed on both occasions to

obtain prompt medical help. He found the decision of the local

authority finally to pursue the adoption without deferral was made bona

fides but commented that it had undoubtedly prejudiced the parents

since in the eight months with the prospective adopters the twins had

made dramatic developmental progress and were happy and secure. As a

result, he found that he had no alternative but to find that the

welfare of the children required that they remain with the prospective

adopters. He accordingly refused to discharge the care orders.

      As regarded access, he noted that the parents and grandparents

had been opposed to the prospective adoption and there was a risk that

access could diminish the twins' sense of attachment to their new home.

He agreed therefore with the guardian ad litem's proposal of indirect

contact which would leave the door open and ordered indirect contact,

namely, the exchange of photographs and cards on at least two occasions

per annum.

COMPLAINTS

      The applicant complains that he has been deprived of a normal

family life in that his bond with his grandchildren has been interfered

with. The applicant complains in particular of the length of time taken

by the local authority to deal with the case of his twin grandchildren

during which time they were given false hope of rehabilitation of the

twins with the parents. He complains that the local authority failed

to give proper consideration to the question of rehabilitation with

himself and his wife.

      The applicant also complains that the local authority are failing

to comply with the order of the judge as to indirect access.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 20 May 1992 and registered on

11 September 1992.

      On 2 December 1992, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

      The Government's observations were submitted on 4 May 1993 after

two extensions in the time-limit and the applicant's observations in

reply were  submitted on 26 June 1993.

THE LAW

      The applicant complains that his relationship with his

grandchilden has been interfered by the local authority. The children

were in the care of the local authority and have now been placed for

adoption. The applicant complains of several aspects of the local

authority's handling of the case, in particular the delay and an

alleged failure properly to carry out an assessment of himself and his

wife as alternative carers.

      The  Commission has examined the applicant's complaints under

Article 8 (Art. 8) of the Convention which provides 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."

      The Commission notes first of all that the Government acknowledge

that the applicant's relationship with his grandchildren falls within

the scope of "family life" as protected by the first paragraph of the

above provision and that the effect of the local authority's actions

in placing the children for adoption with the resulting termination of

direct contact constitutes an interference  with his right to respect

for that family life.

      The question arises whether this interference was justified under

Article 8 para. 2 (Art. 8-2) of the Convention, namely whether it is

"in accordance with the law", pursues one or more of the legitimate

aims enumerated in Article 8 para. 2 (Art. 8-2) and whether it is

"necessary in a democratic society" for one or more of those aims.

      In this respect, the applicant has complained of three aspects

of the case - the delay in the overall procedure which was the subject

of criticism by the judge and the guardian ad litem, the alleged

failure to assess himself and his wife as alternative carers and

failure of the local authority to comply with the court order on

indirect access.

      As regards the delay, the Government submit that the proceedings

before the court in the initial  care proceedings and in the

application for discharge were not subject to unreasonable delay. The

fifteen months referred to by the judge were necessary to produce an

assessment of both the applicant and the parents and was

correspondingly in their interests. As regards the assessment, they

point out that a social worker did compile a report on the applicant

and his wife which was submitted to the social services for discussion

but that this was overtaken by events, namely, the investigation into

rehabilitation with the parents which the applicant himself supported.

      The Commission has considered the submissions of the parties. It

finds that the complaints raise serious questions of fact and law which

are of such complexity that their determination should depend on an

examination on the merits.  It follows that the complaints cannot be

dismissed as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention. No other ground for declaring

them inadmissible has been established.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION ADMISSIBLE without prejudging the

      merits.

Secretary to the First Chamber       President of the First Chamber

      (M.F. BUQUICCHIO)                     (A. WEITZEL)

 

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