CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }          The European Commission of Human Rights sitting in private on 2 December 1986 the following members being present:                   MM. C. A. NØRGAARD, President                   E. BUSUTTIL                   G. JÖRUNDSSON                   G. TENEKIDES                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. DANELIUS                   G. BATLINER              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ                 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 14 August 1986 by E.H. and A.A. against the United Kingdom and   registered on 24 March 1986 under file N° 12133/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows: THE FACTS           The facts as they have been submitted by the applicants, both British citizens, born in 1949 and 1941 respectively and living in Manchester, may be summarised as follows:           The applicants were and are unmarried; the first applicant is a teacher, the second applicant an electrician.   Both applicants were previously, separately, married.   The first applicant's children by her marriage were living with her in 1982.   The second applicant did not have custody of the children of his marriage.   In early 1982, when the first applicant was expecting the birth of the applicants' child, they were living in unsatisfactory accommodation, and subject to severe emotional and financial pressures.   The applicants sought information on adoption from a social worker at the hospital where the first applicant's confinement was due to take place, and were contacted by the Social Services Department of the local authority, who arranged a case conference concerning the applicants' circumstances.           The applicants' child was born on 5 March 1982.   On 17 March 1982, while still in hospital, the first applicant gave the child to a social worker from the Adoption Unit of the Social Services Department of the local authority for adoption, since when neither applicant has seen the child.   On that same day the child was placed with prospective adoptive parents, who have subsequently adopted the child. Arrangements were made for the social worker to bring adoption consent forms to the applicants for signature subsequent to the first applicant's discharge from hospital.           On 21 April 1982 the social worker responsible for the case contacted the applicants to arrange for the first applicant to sign the consent form for the child's adoption.   The applicants contend that they replied that they were reluctant to sign the form, and it was arranged that the social worker would contact the applicants again in this connection.   The applicants contend that they were put under some pressure by the social worker to sign the form, and encouraged to the view that they would feel better once the form was signed.   The first applicant was told that she would be able to rescind her consent at any time before a final order was made for the adoption of the child and that the applicants would be visited by the guardian ad litem, appointed to represent the child in the adoption proceedings.   The first applicant signed the statutory form of consent to adoption on 1 June 1982.   On 7 June 1982, the guardian ad litem was appointed in respect of the child, and his enquiries and confidential report to the judge were completed on 15 July 1982.           On 10 June 1982 the case was assigned to the lists by the Wigan County Court and the applicants were each sent notice of the proposed proceedings.   Neither returned the acknowledgement slip indicating an intention to oppose the application or otherwise to participate in the proceedings and the case was listed for hearing on 19 July 1982.           On 12 July 1982 the social worker asked the first applicant to swear an affidavit declaring that the second applicant was the father of the child and on 13 July 1982 the guardian ad litem visited the applicants with two forms of questionnaire which the local authority's Social Services Department commonly require parents to complete for adoption proceedings.   The Court of Appeal held that these were not statutory forms, although the applicants refer to them in their application as "final consent forms".           The applicants contend that they told the guardian ad litem that they did not wish the adoption of their child to go ahead.   The guardian ad litem's note on the meeting, as presented in evidence to the Court of Appeal, reads as follows:     "I felt that (the first applicant) did want the adoption to go ahead - (the second applicant's) feelings were perhaps a little more hazy, but I felt his feelings of doubt were surrounded with his worries with losing contact with his own children and struggling to build a relationship with the (first applicant's) children.   He said he did not wish to exercise his right to be heard by the court and did not want to oppose the adoption.           Discussion of these issues was clearly stressful to both (applicants).   They refused to sign a departmental form, which I explained I did not think was necessary for the court hearing anyway.   My interpretation of this refusal was one of feeling that they had talked about the issues enough and were just wanting the business to be dealt with."             The applicants contend that the guardian ad litem informed them that the adoption hearing was listed to take place on 19 July 1982, but refused to tell them where the hearing would be, or at what time.   They contend that he promised to return to see them before anything further happened in the case and the applicants state that they assumed that the hearing on 19 July 1982 would not therefore take place.           On 14 July 1982 the second applicant visited the Social Services Department to discuss again the possibility of information being passed to him about the child as the child developed.   He was informed that, in the view of the social workers dealing with the case, this would be inadvisable.   On the same day the second applicant wrote to the Wigan County Court stating that he did not "entirely agree with" the proposed adoption of his child.   He added that the guardian ad litem had not been able to enlighten the applicants as to whether or not they were doing the right thing, and he reiterated his request that he should be informed from time to time how the child was getting on if the child were adopted by the prospective adopters, whose names he had established.   The second applicant added in his letter that he was "led to believe" that he had "no legal control over the destiny" of the child.           The second applicant's letter to the court was received on 19 July 1982, but was not identified as relating to the adoption proceedings concerning the child in time to be put before the judge on that day when an adoption order was made on the basis of the signed consent to adoption dated 1 June 1982 and in the absence of any recorded objection by either parent to the adoption.           The applicants were informed of the adoption order, and contacted the Social Services Department of the local authority and also tried to contact the adoptive parents.   They were told that they could not contact the adoptive parents but that a letter could be, and ultimately was, passed from the adoptive parents to them informing them of the child's development.   The applicants did not take legal advice, although the possibility of doing so was drawn to their attention by the Court by letter of 22 July 1982.   They wrote to various other persons asking for help, without success.           The applicants state that in December 1982 they learned of the right of appeal against the adoption order which could be exercised within six weeks of the date of the order.   They state that they then went immediately to the Manchester Law Centre where they were advised that they had grounds to apply for leave to appeal out of time.   The applicants state that their attempts to pursue this application rapidly were obstructed by the inefficient English legal system and by severe delays with legal aid.   It appears that after the first applicant approached the Manchester Law Centre in January 1983, a letter was written to the Wigan County Court to the effect that the first applicant had given only preliminary consent to adoption and that she and the second applicant had considerable doubts about it. The letter also stated that the guardian ad litem had agreed to further discussions to be held on 15 July 1982, but had not kept the appointment.   The letter was acknowledged on 26 January 1983, and in the substantive reply of 15 February 1983 the Chief Clerk to the County Court stated:             "The court file contains the signed agreement of (the first applicant) dated 1 June 1982 to the adoption of the child.   Notices and Form ACA.5 were sent to both (the first and second applicants) on 10 June 1982 but neither of them returned the acknowledgement slip indicating an intention to oppose the application, or wishing to appear or to be heard on the question whether an adoption order should be made."             In March 1983 the Manchester Law Centre instructed counsel, whose opinion prepared in April 1983 resulted in the first applicant instructing solicitors, but this she only did on 16 July 1983.           Her solicitors applied for legal aid to appeal against the adoption order and this was granted on 13 October 1983.   No application was made for an emergency legal aid certificate.   For reasons which are not explained the notice of appeal was not filed until 14 February 1984.           Once the application for leave to appeal had been filed, the matter was expedited by the Court of Appeal Civil Division and the application was heard on 9 April 1984.   The application was refused on the same day and the transcript of the ex tempore judgment runs to ten pages.           The Court of Appeal noted that certain adoptive procedures had not been adhered to, and criticised in particular the fact that the applicants had, inadvertently, been allowed to learn the names of the prospective adopters of their child, a matter which should have been kept confidential from them.   The court noted that the applicants, in view of their backgrounds, could be presumed to be intelligent and educated people and examined the circumstances in which the question of the child's placement for adoption at birth had been considered. The court noted in particular that the applicants had been sent notice of the application for adoption on 10 June 1982, and that neither had returned the acknowledgement slip, or indicated any intention to oppose the application, although they had been thereby notified that it was imminently pending before the Wigan County Court.   Regard was also taken of the fact that the first applicant had signed a statutory form of agreement to adoption on 1 June 1982, which she had never subsequently retracted.           With regard to the second applicant's letter of 14 July 1982, the court found that the second applicant had recognised that he had, as the putative father, no veto on the adoption but that, save for a passing reference to the mother, the letter was written from the second applicant and related to his position alone.           The court then considered the question of delay arising subsequently to the adoption order made on 19 July 1982.   The applicants' delays in instructing a solicitor (19 July 1982 to 16 July 1983) and the further delay of seven months from the date when the solicitor had been instructed until the notice of appeal had been filed were wholly unexplained, except that advice had apparently been sought from counsel.   The court noted that it was unnecessary to wait for a full grant of legal aid before filing a notice of appeal in a matter so obviously urgent as this, since an emergency certificate could have been obtained, and advice given under the green form scheme until the emergency certificate had been granted.   This delay weighed particularly against the applicants in view of their long delay in seeking advice of any kind, first from the Manchester Law Centre, and then, some six months later, from a solicitor.           The Court of Appeal then turned to an examination of the substance of the applicants' grounds for their application for leave to appeal, under the terms of their notice of appeal, which contended that the judge who made the adoption order had been satisfied that the first applicant's consent had been given freely and without condition, whereas that consent had been withdrawn by the second applicant's letter of 14 July 1982, and the meeting with the guardian ad litem on 13 July 1982.   The court noted that the letter of 14 July 1982 had certainly not withdrawn the first applicant's consent.   The court then considered whether, in view of the challenge made by the first applicant to the content and outcome of her meeting with the guardian ad litem on 13 July 1982, the guardian ad litem should be called to be cross-examined on his sworn evidence filed on the basis of his contemporaneous note of that meeting.   However, the court concluded that the delay in the proceedings was decisive against referring the matter back to the county court and re-opening the question of the adoption order.   The court referred briefly to the confidential report to the judge at first instance prepared by the guardian ad litem on 15 July 1982, which stated that the adoptive parents had already shown their excellent parental ability and that it was clear that a bond had been formed between them and the child.   The court continued:   "That was written nearly fifteen months ago and during those fifteen months the bond between the adoptive parents and this child must be very strong indeed.   He was given up by his mother when he was only 12 days old and the only parents he has ever known are his adoptive parents.           Finality in litigation is important, especially where children are concerned, and in my judgment no ground has been shown which would justify this court in granting an extension of time and such an extension would be positively harmful to the child.   The stress on the adoptive parents of re-opening the adoption at this stage might rub off on the child and have incalculable consequences upon [the child]".             The applicants' application for leave to appeal was accordingly dismissed.           The applicants first submitted their application to the Commission by letter of 14 August 1984.   After various correspondence with the Secretariat of the Commission, an application form was sent to the applicants on 6 February 1985.           By letter postmarked 11 February 1986 and received on 18 February 1986 the applicants notified the Commission's Secretariat that they had been advised in December 1984 that they had a right of appeal to the House of Lords, and that they had therefore asked the Commission to hold their application in abeyance until the appeal was heard.   No trace of any such request addressed to the Commission has been found.   Nevertheless, the applicants informed the Commission that on 7 February 1986 their petition to the House of Lords for leave to appeal had been rejected, and requested the Commission to "recommence our appeal".   The applicants were advised to complete the application form sent to them on 6 February 1985 which was ultimately submitted on 21 April 1986 and registered as the present application.   COMPLAINTS           The applicants complain first that they were denied a fair hearing in the determination of their civil rights in relation to their child's adoption.   They state that the judge was not informed of their objections to adoption, that they were not informed of the time and place of the hearing, nor did they have the opportunity to attend it or to make representations at it, and that they were misled in relying upon the guardian ad litem and his promise to return before the hearing took place.           The applicants also contend that their application for leave to appeal was unfair, in that they were at a disadvantage since the local authority were represented more numerously than they, their counsel did not insist that the matter could be re-heard by the Wigan County Court very quickly, and that they did not have the opportunity themselves to speak to the court, nor to cross-examine the guardian ad litem as to his record of the meeting on 13 July 1982.           The applicants further invoke Article 8 of the Convention and allege that they were denied the protection of this provision in relation to the adoption proceedings, that the normal adoption procedures were not followed, and that once their child had been adopted, the Social Services repeatedly informed them that there was nothing they could do about it.           The first applicant appeals to the Commission to rectify these matters by returning the child to her.       THE LAW           The applicants complain of the circumstances in which their child was adopted.   They invoke Articles 6 and 8 (Art. 6, 8) of the Convention, and contend that they have been denied a fair hearing, and that there has been an unjustified interference with their family life.           However the Commission recalls that in accordance with the terms of Article 26 (Art. 26) of the Convention the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   In the present case the applicants took no part in the adoption proceedings which culminated in the adoption order on 19 July 1982. Nevertheless they were able to appeal from that order to the Court of Appeal within a period of six weeks.   The applicants failed to appeal within that period, but ultimately lodged notice of appeal, by way of an application to appeal out of time, on 14 February 1984.   This application was heard and refused on 9 April 1984 by the Court of Appeal.           According to the Commission's constant case-law, the requirement of exhaustion of domestic remedies contained in Article 26 (Art. 26) of the Convention includes a requirement to comply with the rules of domestic procedural law as to the form and time-limit within which appeals and other remedies must be pursued (Application No. 2854/66, Dec. 8.12.67, C.D. 26 p. 24 at p. 53, Application No. 6115/73, Dec. 28.3.74, C.D. 45 p.123 and Application No. 6878/75 Lecompte v. Belgium, Dec. 6.10.76, D.R. 6 p. 79 at p. 87).           It follows that in the present case, since the applicants failed to respect the time-limit for the submission of their appeal to the Court of Appeal, and their subsequent application for leave to appeal out of time was rejected by the Court of Appeal on 9 April 1984, they have failed to exhaust domestic remedies in accordance with Article 26 (Art. 26) of the Convention. Their application must therefore be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission          President of the Commission         (H. C. KRÜGER)                       (C. A. NØRGAARD)