CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 décembre 1988

.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 }        AS TO THE ADMISSIBILITY OF     Application No. 14114/88 by Andrea DAVISON against the United Kingdom             The European Commission of Human Rights sitting in private on 14 December 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   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 9 August 1988 by Andrea DAVISON against the United Kingdom and registered on 18 August 1988 under file No. 14114/88;           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 applicant is a British citizen born in 1966 and resident in Newcastle-upon-Tyne.   She is represented by David Smark, a solicitor practising in Newcastle-upon-Tyne.   The facts as submitted by the applicant may be summarised as follows.           The applicant had an unhappy childhood.   She was abandoned by her own mother and sexually abused by her father.   She was taken into care at the age of 11 and became pregnant while in care.   Her son K was born on 8 March 1983.           After K's birth, the applicant went with K to a family care centre in order to learn mothering skills.   At the end of 1983 the applicant and K left the centre to live with Mr. and Mrs.   H, who had once been her own foster-parents.   The relationship between the applicant and Mr. and Mrs.   H broke down.   There were rows about what Mrs.   H regarded as her lack of care for the baby and the applicant told Mr.   H that the baby was "costing her boyfriends".   In discussions with Mr. and Mrs.   H, the applicant agreed it would be better for herself and K if K went to long-term foster-parents.   On 31 December 1984, the applicant left K with a babysitter and did not return.   She phoned Mr. and Mrs.   H the next day to inform them that she would not return until K had been placed with foster-parents.   For the next few months K was looked after by Mr. and Mrs.   H and the applicant had access to K for one hour each week.           On 12 April 1984, the Social Services Department of the City of Newcastle-upon-Tyne (hereafter the "Social Services") held a case conference concerning K which the applicant was not invited to attend. They had made K a ward of Court soon after his birth on 23 June 1983 and shortly afterwards an order was made committing the interim care and control of K to the Social Services.   The Social Services took the view that K should be adopted.   They placed K with long-term foster-parents on 17 May 1984, without prior consultation with the applicant or seeking the permission of the Court, following erroneous advice from the District Registrar.   They also applied to the Court to terminate the applicant's access.   On 25 June 1984, the High Court granted the application terminating the applicant's access, although the judge criticised the moving of K to long-term foster-parents without application to the Court because it had pre-empted his decision terminating access.           The applicant appealed to the Court of Appeal, which on 31 August 1984 restored access of one hour per week on the basis that it was too early to close the door on rehabilitation.   The applicant alleges that the Social Services disagreed with the decision and led the applicant to believe that it would not be complied with.   The Social Services had also led K's foster-parents to believe that they could adopt K.           The Social Services sought the advice of a child psychiatrist, who in his report of 11 March 1985 recommended that access should be increased.   Access was subsequently increased.           In December 1985, a statutory review was held by the Social Services concerning the case which the applicant was invited to attend with her legal adviser.   While it was reported that access had taken place successfully, the Social Services decided that an application should be made to the Court to terminate access since it was in their view leading nowhere.   In April 1986, a summons was issued applying for termination of access and leave to place K for adoption.           Following alleged signs of distress by K during access visits in May, the Social Services applied to the High Court which, on 18 June 1986, suspended access except for diagnostic purposes, pending the full hearing of the Social Services' application.           Following a hearing on 4 November 1986, the High Court in a judgment dated 24 November 1986 agreed to terminate access and grant leave for K to be placed for adoption.   In the judgment, the judge found that the Social Services had in fact flouted the spirit of the Court of Appeal's decision by failing to consider or trying rehabilitation.   He also found that following the case conference in December 1985, "a decision to terminate access was taken at that stage without any evidence that the child was being upset, without any evidence that any step towards rehabilitation was being considered and I am   drawn to the conclusion that the reason why this extraordinary decision was taken ... was because the overall plan was, right from the start, to apply for a permanent placement, adoption and access just did not fit into that plan".   The judge went on however to find that K had bonded very successfully with his foster-parents with whom he had lived for two years and that the Court no longer had any choice:           "Today, in giving this judgment, this Court is presented with         a fait accompli.   The child <K> has now been with foster-         parents too long for him to be taken away from them at his         early age; no attempt has been made at rehabilitation and         it is now too late, and if <K> is to stay with <his foster-         parents> it clearly should be under an Adoption Order in         order to avoid strain and stress.   It is right that access,         therefore, should be broken off.   The Court has been placed         in a position in which a decision has literally been thrust         upon it and there is no alternative."           The judge reviewed in detail the evidence relating to the history of access visits.   He noted that K was increasingly distressed during access visits in the six-month period before the hearing.   He accepted the evidence of the consultant psychiatrist, who had stated:           "During the earlier months of <K>'s life there were serious         doubts as to <the applicant>'s ability to care for him in an         unsupported environment, therefore the local authority sought         long-term foster-parents for him, with whom he has now been         placed for over two years.   <The applicant>'s personal         circumstances have certainly changed for the better and she is         in a better position now than she was before, to offer him a         home.   But <K> is a demanding boy who requires clear limits         and is functioning at a reasonable level at the present time.         He has lived with <Mr. and Mrs.   H> for over two years, the         most crucial over the period of maximum attachment - in other         words, between 18 and 24 months.   <His> behaviour to access         visits and his behaviour within the foster-parents' home leads         me to the conclusion that he views <the foster-parents> as his         parents at an emotional level.   Over the last year the quality         of the relationship between <K> and <the applicant> does not         appear to have improved despite ... regular access visits.         Any attempts to return <K> to <the applicant>'s full time care         must be seen as the equivalent of removing <K> from his         emotional parents.   The uncertainty which exists about <K>'s         future has perhaps contributed to the anxious attachment which         he shows prior to an access visit.   If he is to remain in his         present family; the certainty of this placement needs to be         confirmed as quickly as possible, perhaps by adoption.   In         these circumstances continued access would offer no positive         benefits to <K>'s long-term development."           The judge concluded in light of the evidence that K was not benefitting from access and that he might suffer harm if it continued.           The applicant appealed to the Court of Appeal which on 16 February 1987 upheld the High Court's decision.   Though it commented critically on the handling of the case by the Social Services, it held that the judge had given proper consideration to the question of whether it was in the interests of K for access to continue and that her conclusions on the evidence could not be faulted.           The applicant appealed further to the House of Lords which, after hearings held on 30 November 1987 and 1 December 1987, gave its judgment on 18 February 1988.   The House of Lords agreed that the decision of the High Court had been "distressingly inevitable" but did not agree with the criticisms levelled at the Social Services by the High Court and the Court of Appeal.           Lord Oliver gave a long and detailed judgment, with which the other Lords of Appeal concurred and in which he examined in depth the child care cases dealt with by the European Court of Human Rights. The following extract sets out part of his findings:           "...   I am, however, for my part, quite unable to discern in         the conduct of the respondents anything that could fairly be         described as a disregard of the spirit of the Court of         Appeal's order.   The court's intention, on its face, was         simply that access should continue for the time being so that         the possibility of rehabilitation should not be wholly         excluded and nothing in the court's judgment indicated any         disagreement with the view of Hollis J., formed after a close         analysis of the evidence, that rehabilitation was not a         realistic present possibility.   I read that judgment as         doing no more than suggest that the effect of access should be         assessed over a longer period before making a final decision         of where the ward's interests lay.   If there is a criticism         which can legitimately be made of the respondents it is, I         think, this, that <Mrs.   J>, their social worker in charge of         the case, had clearly perceived at a very early stage that the         ward's long-term future lay in adoption by the foster-parents         and this, rather than positive attempts at rehabilitation,         continued to colour her approach to the question of access by         the child's mother.   At the same time, there has to be borne         in mind that her primary responsibility was to this child who         had already had a fairly disturbed babyhood and had, for the         first time, been received into a stable home with people to         whom he could relate as his parents.   What the respondents         determined to do was to seek the advice of a very well known         paediatrician, <Dr.   P>, and an application to the court to         enable that to be done was made and granted.   <Dr.   P> lived in         the south of England and it was some time before arrangements         could be made to enable him to report.   He did so, however,         on 11 March 1985 and recommended a programme of phased         extension of access by the appellant to embrace visits of up         to three hours, weekly in the first instance.   In his report,         <Dr.   P> emphasised that this was to be an entirely diagnostic         exercise and was not to be thought to imply any bias either         for or against eventual rehabilitation.   The judge regarded a         'diagnostic exercise' as being entirely contrary to the spirit         of the Court of Appeal's order, but I am bound to say that I         think that that was exactly what the court had in mind in         speaking of a review in the light of the effect of continued         access on both mother and child.   Following that report,         access was increased as suggested and continued on an         increased scale throughout the year of 1985.   In December 1985         a departmental review took place, which was attended by the         appellant and her solicitor and by the foster-parents and it         is common ground that in the course of the discussion which         then took place regarding <K>'s future it was intimated that         the respondents had decided to apply to the court again to         terminate access and to seek leave to arrange for <K>'s         adoption.   It is also common ground that, up to that point,         access by the appellant to the ward had not given rise to any         difficulties although it was <Mrs.   J>'s evidence that she         perceived no positive benefit from it to <K>.   <Mrs.   J>'s account         of her reasoning was that her concern throughout was with the         child's long-term future, that the access which had taken         place demonstrated nothing to indicate any more realistic         prospect of rehabilitation than had previously existed and         that continuing access was likely to be unsettling both for         the child and for the foster-parents.   It is, however, clear         from her evidence that she had not regarded rehabilitation         within the foreseeable future as a practical possibility and         this no doubt coloured her thinking.   The judge described the         decision as 'extraordinary'.   It may well have been one that         could have been more tactfully communicated, but in the light         of the facts that, at that stage, the ward had been in the         care of <Mr. and Mrs.   H> for over 18 months and that the         appellant was not in a position to provide a settled and         stable home for him and also having regard to the likely         effect of an indefinite continuance of a state of uncertainty,         both on the child and on the foster-parents, I am bound to say         that the decision, though no doubt inevitably a hard one, and         from the appellant's point of view perhaps a harsh one, can         hardly be considered irrational.   In fact access by the         appellant was continued for the time being and it was not         until the beginning of April 1986 that a summons was issued by         the respondents for access to be discontinued and leave for         the foster-parents to apply for adoption.   Access continued         thereafter until 18 June 1986 when Hollings J. made an order         adjourning the hearing of the respondents' summons to a date         to be fixed and terminating access in the meantime except for         diagnostic purposes.   The hearing of the summons before Judge         Cohen occupied four days in October and November 1986 and         judgment was delivered on 24 November 1986.   In addition to         the evidence of the social workers involved the judge had the         evidence of a court welfare officer and a consultant         psychiatrist, <Dr.   P>, whom the respondents had obtained leave         to consult.   That evidence clearly pointed to adoption as the         only viable long-term solution for the ward.   Particularly         significant was a passage from <Dr.   P>'s conclusions:                   'Any attempts to return <K> to <the appellant's> full                 time care must be seen as the equivalent of removing                 <K> from his emotional parents.'           Additionally, the evidence established a deteriorating pattern         of access, with <K> displaying alarmingly acute signs of         distress on access visits.   Various suggestions have been         canvassed to account for this - for instance, that the         respondents' decision to make the application in December         created an uncertainty in the foster-parents which         communicated itself to the child.   The judge made no findings         about it and any conclusion would be purely speculative.   The         fact remains that, by the date of the hearing, it was quite         evident that access visits were, for whatever reason,         producing reactions of distress the level of which was, in <Dr.         P>'s words, 'of a much more intense degree than a typical         separation anxiety such as one might see for children going         to school, for instance'.   At the same time, the appellant's         situation offered little confidence in any present ability to         provide a satisfactory   home for <K>.   She was living with a         young man by whom she was pregnant and whom she hoped to         marry.   Her past relationship with him had, however, been a         somewhat stormy one and there had been incidents involving         physical violence, although there was no suggestion that they         had involved the ward" (<1988> 2 WLR p. 398).           Lord Oliver concluded that he found no error in the High Court judge's approach to the question which she was called upon to determine or in the conclusion to which she felt compelled.   The appeal was therefore dismissed.           The applicant had been represented by solicitor and counsel throughout these proceedings.           The applicant has since given birth to a second son, who has remained in her care since his birth.     COMPLAINTS           The applicant complains of a violation of Article 8 of the Convention.   She complains that the Social Services failed to make any effort to rehabilitate the applicant with K.   The Social Services also placed K with long-term foster-parents without the consent of the High Court and thus pre-empted the situation despite the decision of the Court of Appeal and the 1983 Code of Practice.           She also complains that the Social Services excluded the applicant from their decision-making process.   She only attended one case conference (December 1985), all other case conferences and statutory reviews having been held in confidential circumstances and the resultant decisions not communicated to her.   The applicant further submits that her case before the United Kingdom courts foundered on the effluxion of time and were not decided on the merits.           The applicant also complains of the length of time taken in the proceedings and invokes Article 6 para. 1 of the Convention.   THE LAW   1.       The applicant complains of the Social Services.   She complains that they failed to try to rehabilitate the applicant with K, that they placed K with long-term foster-parents without the consent of the High Court and that they excluded her from their decision-making process.   She also complains that her case before the courts was decided by the effluxion of time rather than on the merits.   She invokes 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 applicant's complaints under this provision arise from the events following the birth of her child K, who was made a ward of court on 23 June 1983 and committed by the High Court to the care and control of the Social Services shortly afterwards.   The Commission notes that the applicant does not complain of the decisions whereby access was terminated and K placed for adoption and will not therefore examine the conformity of these decisions with Article 8 (Art. 8) of the Convention.   The applicant instead complains of various aspects of the procedure and decision-making process.   The Commission will therefore consider whether the subject-matter of these complaints disclose any lack of respect for the applicant's rights guaranteed under Article 8 (Art. 8) of the Convention.           The applicant has complained of a lack of involvement in the decision-making process implemented by the Social Services in relation to K.   She submits that she only attended one case conference for example and was excluded from all other discussion of the case.           An analogous issue was considered before the Court in W v. the United Kingdom (Eur.   Court H.R., judgment of 8 July 1987, Series A No. 121-A) where it was stated:           "In the Court's view, what therefore has to be determined         is whether, having regard to the particular circumstances         of the case and notably the serious nature of the decisions         to be taken, the parents have been involved in the         decision-making process, seen as a whole, to a degree         sufficient to provide them with the requisite protection         of their interests.   If they have not, there will have         been a failure to respect their family life and the         interference resulting from the decision will not be         capable of being regarded as 'necessary' within the         meaning of Article 8 (Art. 8)."           The Commission recalls that while it appears that the applicant participated in only one case conference, K had been a ward of court from 23 June 1983 and that decisions concerning K's future and welfare lay within the responsibility and control of the High Court.   Thus, the Social Services were required to apply to the courts for approval of any proposed measures and the applicant, as party in the wardship, was fully involved in such proceedings.   The Commission further recalls that she was legally represented in the wardship proceedings.   With regard to these facts, the Commission finds that the procedural requirements implicit in Article 8 (Art. 8) were satisfied since the applicant was involved in the overall decision-making process to a degree sufficient to provide her with the requisite protection of her interest.           The applicant has also complained that the Social Services failed to gain the consent of the court to place K with long-term foster-parents and that they failed to make any efforts to rehabilitate the applicant with K.           The Commission recalls that the Social Services placed K with long-term foster-parents without applying to the court after receiving erroneous advice from the District Registrar.   While the High Court considered in its judgment of 25 June 1984 terminating access that this had pre-empted his decision, the Court of Appeal on 31 August 1984 reversed his decision and restored access.   Further, while the applicant complains of the Social Services' failure to pursue a course of rehabilitation, the Commission recalls that following the Court of Appeal judgment which stated it was too early to close the door on rehabilitation, the Social Services consulted a child psychiatrist and following his recommendation, increased the applicant's access.   In December 1985 the Social Services then held a case conference attended by the applicant and came to the decision to terminate access and an application was accordingly made to the court.   The Commission notes that the High Court and the Court of Appeal criticised the Social Services' implementation of the previous Court of Appeal decision. However, in its judgment of 18 February 1988, the House of Lords found that the Social Services had not flouted the spirit of the Court of Appeal's order but acted correctly in conducting a review of the effect of further access on the applicant and K, before coming to the conclusion that it was in K's interest for access to be terminated.   In light of these circumstances, the Commission finds that the applicant's complaints disclose no lack of respect for her right to respect for her family life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.           The applicant has further complained that, as in the case of H v. the United Kingdom (Eur.   Court H.R., H v. the United Kingdom judgment of 8 July 1987, Series A No. 120, p. 41), the question of access was decided, not on the merits, but as a result of the effluxion of time.           The Commission recalls however that in H v. the United Kingdom the applicant's access to her child had been terminated on 24 June 1977 and her application for access to be restored was not heard until 22 October 1980, when the child (4 1/2 years old) had already been placed with adopters and had not seen the applicant for 3 1/2 years. In the present case, while K had indeed been placed with long-term foster-parents, access had continued, with only a brief gap (June-August 1984) until the High Court decision terminating access in 1986.   An examination of the judgments of the High Court, the Court of Appeal and the House of Lords also shows that the matter of continuing access for the applicant was examined thoroughly on the merits.           The Commission accordingly finds that this complaint discloses no appearance of a violation of Article 8 (Art. 8) of the Convention.           It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains that the length of time taken by the proceedings breached Article 6 (Art. 6-1) of the Convention, which in its first sentence of paragraph 1 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 recalls that, in the first proceedings brought to terminate the applicant's access, the decision of the High Court was given on 25 June 1984, but reversed two months later on 31 August 1984 by the Court of Appeal.           Following a period of increased access, the Social Services again instituted proceedings to terminate access in April 1986.   The High Court hearing took place on 4 November 1986 and its judgment was given on 24 November 1986.   The Court of Appeal heard the applicant's appeal on 16 February 1987 and the applicant's further appeal to the House of Lords was dismissed in its judgment of 18 February 1988, following hearings held on 30 November 1987 and 1 December 1987.   These proceedings accordingly lasted less than two years.   As previously stated, the Commission finds that the subject-matter of the proceedings was decided on the merits and not by the effluxion of time.           In light of these circumstances, the Commission finds that the proceedings did not exceed the reasonable time required by Article 6 para. 1 (Art. 6-1) of the Convention.           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           DECLARES THE APPLICATION INADMISSIBLE.         Secretary to the Commission          President of the Commission                  (H.C. KRÜGER)                       (C.A. NØRGAARD)