CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1990

.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. 16184/90                       by Carolyn-Jean LAVENDER                       against the United Kingdom             The European Commission of Human Rights sitting in private on 7 May 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 11 August 1989 by Carolyn-Jean LAVENDER against the United Kingdom and registered on 21 February 1990 under file No. 16184/90;           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 of the case, as they appear from the applicant's submissions, may be summarised as follows.           The applicant is a British citizen, born in 1967 and resident in Bristol.   She is represented before the Commission by Mr.   Edwin Lavender, her father, who introduced this application on her behalf.           The applicant has four children, S. (a son), A. (a daughter), K. (a daughter) and M. (a son).           The applicant gave birth to her daughter A. on 6 September 1985.   On 17 December 1985, A. was subject to a Place of Safety Order following her admittance to hospital with bruises.   The applicant's explanation for the injury was that her eldest son S. had fallen on top of A.   The local authority (the County of Avon) applied for a care order which was granted in May 1986 after a hearing at which the applicant was represented by solicitor and counsel.   Medical reports stated that A. had a "characteristic frozen watchfulness" demeanour in that she seemed afraid and unresponsive to normal social overtures. Her weight was also below the normal range.           On 16 April 1987, A. was returned home to the applicant on trial.   After 6-7 weeks however, A. was taken back into care when a social worker noticed further bruising on A.'s back, although the applicant contended that this could only have happened as a result of S. throwing toys into A.'s cot.           In November 1987, the applicant states that her daughter K. fell and sustained bruising on her face.   Her explanation was not believed by the Social Services Department of the local authority who removed K. under a Place of Safety Order.   The applicant was charged with causing actual bodily harm.           In January 1988, the application of the local authority for a care order in respect of K. was heard before the Juvenile Court, which however returned K. to the applicant's care.           From this period onwards, the applicant stated that if any of her children had a bruise or scratch, they would be taken to a doctor, stripped and examined.           On 18 March 1988, the applicant was informed that the local authority had decided to place A. for adoption.           In November 1988, the applicant was tried in respect of the injury to K. and was found guilty of a charge of neglect.   She was put on probation for two years.   The judge stated that the applicant was not taking enough steps to stop her children sustaining knocks and bruises.   The local authority made the applicant's three children, S., K. and M., wards of court in November 1988.           On 9 February 1989, the applicant's application to revoke the care order in respect of A. was heard before the magistrates court. She was represented by solicitor and counsel.   The court refused the application finding that since A. had been with her foster-parents for three years and lost all memory of the applicant, it was in her best interests for A. to remain with her foster-parents.           The applicant states that following her period in care K. had become a temperamental child throwing serious tantrums which meant that she was a danger to herself and her latest baby M.   The applicant was obliged to place K. in voluntary care of the local authority in March 1989, where she has remained since.   While the applicant states that she wants K. to return home, she alleges that she has been told by social workers not to insist since otherwise she might lose S. and M.           On 10 August 1986, the applicant's father had introduced an application before the Commission on behalf of the applicant.   The application was registered on 7 March 1989 under No. 14745/89.   The application was struck from the Commission's list of cases on 13 July 1989 following a letter from the applicant's father seeking to withdraw the application.   COMPLAINTS           The applicant complains that there has been a lack of respect for her family and private life contrary to Article 8 of the Convention as a result of the placing in care of A. and depriving her of custody.   The applicant complains of the constant suspicion which she lives under and the policy of the local authority which resulted in repeated medical examination of her children.   The applicant also complains that K. remains in care.   THE LAW   1.       The applicant has complained of being deprived of the custody of A.   She also complains of constant scrutiny by the local authority and that K. remains in care.           The Commission recalls that the applicant introduced a previous application No. 14745/89 which was struck from the list.   It notes that while the previous application concerned largely the same facts and complaints, the present application has added some further material and fresh allegations.   The Commission has treated the applicant's complaints as a new application rather that restoring the previous application to the list.   It has also decided not to go into the question of compliance with the six months' time limit imposed by Article 26 (Art. 26) of the Convention for the reasons given below.           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 finds that, in accordance with its established case-law, the decision to take A. into care and terminate the applicant's custody constituted an interference with the applicant's right to respect for her family life protected by Article 8 para. 1 (Art. 8-1) of the Convention (see e.g. Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27, para. 59).   The Commission must therefore examine whether this interference is 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.           The Commission recalls that A. was taken into care following injuries sustained.   The magistrates court refused to revoke the care order on the ground that it was in the best interests of A. to remain with her foster-parents.   The Commission finds that these decisions were taken in accordance with the relevant child care legislation and made for the aim of protecting A.'s health and rights.   Consequently, the decisions were "in accordance with the law" and pursued a legitimate aim under Article 8 para. 2 (Art. 8-2), i.e. "the protection of health or morals" and "the protection of the rights and freedoms of others".           The question remains whether the decisions were "necessary" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. The case-law of the Commission and the Court establishes that the notion of necessity implies that the interference corresponds to a pressing social need and that it is proportionate to the aim pursued.   Further, in determining whether an interference is necessary the Commission and the Court will take into account that a margin of appreciation is left to the Contracting States, who are in principle in a better position to make an initial assessment of the necessity of a given interference.           When determining whether or not the placing of A. in care and the refusal of custody to the applicant were necessary in the interest of A., the Commission observes that it is not its task to take the place of the competent national courts and make a fresh examination of all the facts and evidence in the case.   The Commission's task is to examine whether the reasons adduced to justify the interference at issue are "relevant and sufficient" (Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, p. 32, para. 68).           The Commission recalls that the decision to place A. in care was taken following injury and that A. suffered further injury when allowed home on trial.   In deciding not to revoke the care order, the Court also had regard to the fact that A. had been placed with her foster-parents for three years and lost all memory of the applicant. The Court concluded that it was therefore in her best interests to remain with her foster-parents.           The Commission also recalls that the applicant was present during the proceedings and was represented by solicitor and counsel. The applicant therefore had the possibility of putting forward any views which in her opinion would be decisive for the outcome of the case.   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 decision-making process to a degree sufficient to provide her with the requisite protection of her interest (see e.g. Eur. Court H.R., W. v. the United Kingdom judgment, loc. cit., pp. 28-29, paras. 63-65).           The Commission therefore finds that, bearing in mind the margin of appreciation accorded to the domestic authorities, the interference in the present case was justified under the terms of Article 8 para. 2 (Art. 8-2) of the Convention as being "necessary in a democratic society" for the protection of the health and for the protection of the rights of A.   Consequently, this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       As regards K., who is now also in the care of the local authority as well as a ward of Court, the Commission notes that the applicant herself placed K. in voluntary care.           It appears that the applicant has not requested the return of K. from the local authority as she is entitled to do in respect of a child who is in voluntary care nor brought her complaint before the High Court which has jurisdiction in matters concerning wards of court.   It therefore appears that the applicant has not complied with the condition as to the exhaustion of domestic remedies imposed by Article 26 (Art. 26) of the Convention.           This part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.       In so far as the applicant has also complained of the constant scrutiny of her family by the local authority, the Commission notes that there has been a history of incidents involving injury to the applicant's children and that the local authority is under a statutory duty to have regard to the welfare of children within its area.   On examination of the facts as submitted by the applicant, the Commission finds that there is no indication of a violation of Article 8 (Art. 8) of the Convention in this respect.           It follows that this part of the application 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)