CEDH · CASELAW;REPORTS;ENG — 9 février 1993

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 16580/90                                Terence BOYLE                                   against                             the United Kingdom                          REPORT OF THE COMMISSION                        (adopted on 9 February 1993)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . 1-2         A.   The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1         B.   The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . . . . . 1         C.   The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 17-37). . . . . . . . . . . . . . . . . . . . . . . 3-5         A.   Particular circumstances of the case           (paras. 17-34). . . . . . . . . . . . . . . . . . . . . 3-4         B.   Relevant domestic law and practice           (paras. 35-37). . . . . . . . . . . . . . . . . . . . . . 5   III.   OPINION OF THE COMMISSION       (paras. 38-59). . . . . . . . . . . . . . . . . . . . . . . 6-9         A.   Complaint declared admissible           (para. 38). . . . . . . . . . . . . . . . . . . . . . . . 6         B.   Point at issue           (para. 39). . . . . . . . . . . . . . . . . . . . . . . . 6         C.   Article 8 of the Convention           (paras. 40-58). . . . . . . . . . . . . . . . . . . . . 6-9         CONCLUSION       (para. 59). . . . . . . . . . . . . . . . . . . . . . . . . . 9   DISSENTING OPINION BY MM. FROWEIN, WEITZEL, DANELIUS AND MARTINEZ . . . . . . . . . . . . . . . . . . . . . . .10   APPENDIX I        HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .11   APPENDIX II       DECISION OF THE ADMISSIBILITY. . . . . . . . . 12-15   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is Terence Boyle, a British citizen born in 1938 and resident in Blackburn. He is represented by Messrs. Forbes, solicitors practising in Blackburn.   3.     The application is directed against the United Kingdom.   The Government are represented by their Agent, Mrs. Audrey Glover of the Foreign and Commonwealth Office.   4.     The case concerns the applicant's complaint, prior to the entry into force of the Children Act 1989, that he was refused access to his nephew in care by the local authority and that he had no possibility of applying for access to a court. It raises issues under Article 8 of the Convention.   B.     The proceedings   5.     The application was introduced on 5 October 1989 and registered on 14 May 1990.   6.     On 7 September 1990, the Commission decided to communicate the application to the respondent Government for their written observations on the admissibility and merits of the application.   7.     The Government submitted their written observations on 17 September 1991.   The applicant submitted his written observations in reply on 6 December 1991.   8.     The Commission granted the applicant legal aid on 18 October 1991.   9.     On 15 May 1992, the Commission declared the application admissible.   10.    The parties were then invited to submit any additional observations on the merits of the application.   On 3 July 1992, the applicant submitted additional observations.   On 16 December 1992, the Government submitted further observations on the merits.   11.    After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   12.    The present Report has been drawn up by the Commission   in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  E. BUSUTTIL                  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.    J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI   13.    The text of the Report was adopted by the Commission on 9 February 1993 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   14.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.    A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   16.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   17.    The applicant has a sister M. who gave birth to a son C. on 5 April 1980.   18.    The applicant visited M. and C. in the hospital after the birth. Following the birth, M. suffered from post-natal depression and the applicant volunteered to look after C. at the weekends in order to give M. a rest. In the first year of his life,   C. often stayed at weekends in the applicant's house and the applicant would frequently take C. for walks in his pram. M. was also suffering increasing matrimonial problems. Around Easter 1981, the applicant recalls being summoned by a neighbour as M.'s husband had assaulted both M. and her eldest son. When the applicant arrived, the police were there and C. was sitting on the floor crying. He held out his arms to the applicant who picked him up to comfort him and told him that he could come home with him. The applicant states that it was at this moment he realised how much he loved C. and felt how much he needed the applicant's love and protection.   19.    Between December 1981 and August 1986, while he was unemployed, the applicant saw C. very frequently and generally spent a lot of time with him, going for walks together and on trips to the Lake District and to the sea. He states that C. was spending as much time with him as if he had actually been his own son and that a bond had formed based on   sharing experiences and relying on one another for company. After that period the applicant who was no longer unemployed continued to have close contact with the boy who only lived a short distance away.   20.    In or about 1986, M. obtained an order of legal separation and her husband left the matrimonial home. After this, C. came round to see the applicant every night and at weekends. In July 1988, the applicant bought M. his first bicycle and taught him how to ride it.   21.    On application by the NSPCC (National Society for the Prevention of Cruelty to Children), C. was removed from the care of his mother under a Place of Safety Order on 2 February 1989 on suspicion that he had been sexually abused by her. On 3 February 1989, M. was arrested and charged with sexual offences.   22.    C. was placed with foster-parents on 2 February 1989. According to the applicant, during the period that followed, C. repeatedly asked to see the applicant.   23.    Interim care orders were granted by the Juvenile Court on 9 February 1989, 9 March 1989 and 6 April 1989.   24.    On 12 April 1989, Lancashire County Council (the local authority) held a case conference and decided that the NSPCC should apply for a full care order on behalf of the local authority in view of M.'s continued refusal, supported by the applicant and other members of the family, to accept that abuse had taken place. The same day they received notification from the Crown Prosecution Service that the charges against M. were not to be pursued for lack of evidence.   25.    On 26 April 1989, the Juvenile Court found that the allegations of sexual abuse had been made out and a care order was made in favour of the local authority. In the report of the guardian ad litem of 13 April 1989 before the Court, the applicant was described as having been a "a good father figure" to C..   26.    On 21 June 1989, a social worker visited M. and the applicant to discuss access prior to a joint meeting of the local authority and NSPCC on the matter.   27.    The applicant had made requests for access to C. throughout C.'s placement in care. Following a request dated 28 August 1989, the local authority informed the applicant that they were about to review access arrangements. On 7 September 1989, he was informed that he was to be allowed a supervised access visit to C., which took place on 13 September. According to the applicant, C. hugged him on this occasion.   28.    On 30 October 1989, following a case conference attended by M., the local authority decided to terminate M's access to C. They also decided not to grant further access to the applicant since he continued to deny that sexual abuse by M. had occurred.   29.    M. withdrew her appeal against the termination of access before the Juvenile Court on 24 April 1990.   30.    The local authority decided to place C. for adoption and applied to the county court for an order freeing him for adoption.   31.    On 5 July 1991, the Court made the order. The judge had talked with C. beforehand in his chambers. In his judgment, the judge reported that C. had stated that he would not mind seeing his mother and other members of his family but that he preferred to be adopted. The judge reviewed the history of the case and criticized the "blinkered" approach taken by the authorities and other shortcomings in the procedures adopted. He stated that he had grave reservations on the correctness of the original findings that sexual abuse had taken place. However, in view of the time which had elapsed and the expressed preference of C., he considered adoption was in C.'s best interests and dispensed with M.'s consent.   32.    Following the coming into force of the Children Act 1989, the applicant was on 9 December 1991 granted leave to apply to the county court for a contact order. On 27 February 1992 following a hearing the court refused to make such an order.   33.    The judge noted that C. was in the process of being introduced to prospective adopters.   He recalled that C. was a mature boy who knew his own mind and whose wishes ought seriously to be taken into account and that he had stated to his social worker that he did not wish to see his uncle.   The judge considered that C. had his sights set on settling with his new family and at this time should not be required to renew contacts.   34.    By letter dated 17 July 1992, the local authority informed M. that the introduction of C. to an adoptive family had ceased.   B.     Relevant domestic law and practice   35.    Prior to the coming into force of the Children Act 1989, non- parental relatives had no possibility of applying to a court for access to a child, or to challenge a termination of access to such child, taken into compulsory care by a local authority.   36.    In October 1991, the Children Act 1989 came into force.   37.    Pursuant to Section 34(3) of the 1989 Act, a non-parental relative may apply to court for leave to apply for a contact order in respect of a child in the care of a local authority.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   38.    The Commission declared admissible the applicant's complaint that the local authority's refusal to grant him access to his nephew violates his right to respect for his family life and that he was unable to have the question of access to his nephew determined by a court.   B.     Points at issue   39.    The issues to be determined are whether:   -      whether there has been a violation of Article 8 (Art. 8) of the       Convention due to the refusal to give the applicant access to his       nephew and the absence of any possibility of applying to a court       in respect of that refusal.   C.     Article 8 (Art. 8) of the Convention   40.    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."   41.    The Commission has first examined whether the relationship which the applicant enjoyed with his nephew M. falls within the scope of "family life" as protected by the above provision.   42.     The applicant submits that he enjoyed a very close relationship with M. and that as a result of the absence of C.'s   father, he was in effect a "father figure" to the boy. The Government submit that the applicant and C. have never co-habited and that the bonds of the uncle- nephew relationship are insufficient in themselves to constitute "family life".   43.    The Court in the Marckx case stated that "family life" within the meaning of Article 8 (Art. 8) includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relations may play a considerable part in family life (Eur. Court H.R., Marckx judgment of 13 June 1979, Series A no. 31 p. 21 para. 45). In the Commission's view, cohabitation is however not a prerequisite for the maintenance of family ties which are to fall within the scope of the concept of "family life".   Cohabitation is a factor amongst many others, albeit often an important one, to be taken into account when considering the existence or otherwise of family ties (see eg. No. 12402/86, Dec. 9.3.88, D.R. 55 p. 224-234).   44.    The Commission recalls in this case that the applicant had frequent contact with C. from the time of C.'s birth and spent considerable time with him. While it appears the two families did not share the same household, they lived in close proximity and C. often made "weekend stays" at the applicant's home.   The Commission further notes that the guardian ad litem in the care proceedings described the applicant as a "good father figure" to C.   45.    In these circumstances, and having regard to the absence of C.'s father, the Commission finds there was a significant bond between the applicant and C., and that this relationship fell within the scope of the concept of "family life".   46.    Where a parent is denied access to a minor child take into care, there is in general an interference with the parent's right to respect for family life as protected by Article 8 para. 1 (Art. 8-1) of the Convention.   This however is not necessarily the case where other close relatives are concerned (No. 12402/86, loc. cit. at p. 234).   Access by relatives to a child is normally at the discretion of the child's parents and, where a care order has been made in respect of the child, this control of access passes to the local authority.   A restriction of access which does not deny a reasonable opportunity to maintain the relationship will not of itself show a lack of respect for family life.   47.    The Commission recalls however with regard to the present applicant that apart from one visit in September 1989, all contact with C. was prohibited thereby preventing any continuance of the applicant's relationship with him.   It finds that this amounts to an interference with the applicant's right to respect for his "family life"   as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.   48.    Consequently, it must be determined whether the interference was justified under Article 8 para. 2 (Art. 8-2) of the Convention in particular, whether it is "in accordance with the law", pursues one or more of the aims enumerated and is "necessary in a democratic society" for that or those aims.   49.    As regards the requirement of "in accordance with the law", the Commission notes that this aspect is not in dispute between the parties.   At the relevant time, a local authority, in exercising the statutory duties in safeguarding the welfare of a child in its care, enjoyed a discretion as to access.   The Commission finds no indication that the exercise of the discretion in this case was not "in accordance with the law".   50.    As regards the purpose of the interference, the Commission recalls that the local authority terminated the applicant's access since he continued to deny that sexual abuse had occurred, which in their view rendered further contact detrimental to C.   The Commission has doubts as to the validity of this approach. The Commission does not however need to express a view as to whether sexual abuse did or did not occur in this case.   It accepts that in taking the decision, the local authority acted with the purpose of safeguarding C's health and rights within the meaning of the second paragraph of Article 8 (Art. 8).   51.    The question remains whether the interference was "necessary".   52.    The case-law of the Commission and the Court establishes that the notion of necessity implies that the interference corresponded to a pressing social need and that it is proportionate to the aim pursued. Further, in determining whether an interference in necessary in a democratic society, the Commission and the Court will take into account that a margin of appreciation is left to the Contracting States, which are in principle in a better position to make an initial assessment of the necessity of the given interference (see e.g. Eur. Court H.R., W. v. United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27, para. 60).   53.    In this context, the Commission and the Court have established that there are implied procedural requirements. In the case of parents, what 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)."       (W. v. United Kingdom judgment, loc. cit. p. 29, para. 64).   54.    The present applicant is the uncle, not the parent, of the child in care and regard must be had to the difference in the nature of this relationship. The applicant's relationship as an uncle will not require the same level of involvement. The Commission therefore examined whether the decision-making process in this case provided the applicant with the requisite protection of his interest in light of the nature of his relationship with C.   55.    The Commission recalls that the applicant has complained in this respect of his inability to bring the matter of access before the court.   It notes that since the entry into force in October 1991 of the Children Act 1989, a procedure for applying to a court in matters of access generally has been implemented and that the applicant has made use of it. This application however is concerned only with the situation prevailing prior to that date.   56.    The Commission considers that the procedural requirements implicit in Article 8 para. 2 (Art. 8-2) cannot be interpreted as automatically necessitating access to a court.   In a case concerning the termination of access by grandparents to grandchildren in care, the Commission found that the decision-making procedure, which did not afford the possibility of access to court, nonetheless provided the grandparents with sufficient protection of their interest, since "the views of the <applicants> were taken into account and they were able to make representations on several occasions in order to obtain a review of the situation" (No. 12402/86 loc. cit at p. 237).   57.    In the present case, the local authority discussed the matter of access with the applicant on 21 June 1989 prior to a meeting and that he was consequently allowed one access visit.   The decision to terminate access was made at a case conference to which he was not invited and without prior invitation of his views.   The Commission accepts that necessarily the local authority gave greater emphasis to the involvement of C.'s mother in the decision-making process. However, it appears that the local authority, and the NSPCC who were acting on their behalf, took the view early, if not immediately, in the case that the refusal of M. and her family to acknowledge that abuse had occurred was a bar to any form of rehabilitation.   No consideration appears to have been given to any possible compromise solution. In light of this fundamental conflict between the local authority and C.'s family, including the applicant, there was little or no scope for any meaningful dialogue.   The available consultation process was thereby rendered nugatory.   58.    The Commission considers it unnecessary to decide whether a court alone could provide the necessary forum or mechanism for obtaining an objective and meaningful review of the applicant's requests as to access and his complaints as to the approach taken by those acting on behalf of the local authority. It finds that the absence of such a forum or mechanism in the present case discloses a fundamental shortcoming since the applicant as a result was not involved in the decision-making procedure to the degree sufficient to provide him with the requisite protection of his interest. Consequently, the interference   complained of cannot be regarded as "necessary" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   CONCLUSION   59.    The Commission concludes, by 14 votes to 4, that there has been a violation of Article 8 (Art. 8) of the Convention.   Secretary to the Commission             President of the Commission         (H.C. Krüger)                            (C.A. Nørgaard)      DISSENTING OPINION BY MM. FROWEIN, WEITZEL, DANELIUS AND MARTINEZ         The applicant complains of having been refused access to his nephew and of having been unable to have the question of access determined by a court.         We accept that "family life" within the meaning of Article 8 of the Convention may exist not only between parents and children but also between more distant relatives such as uncle and nephew.   However, the requirements of Article 8 must, generally speaking, be considered to be less far-reaching in regard to such family relationships.         Although there seems to have been a close emotional relationship between the applicant and his nephew during the latter's early childhood, we cannot find that the local authority acted in breach of Article 8, when deciding, after the nephew had been placed with foster-parents, no longer to grant the applicant access to him.   We note in this regard that, at least during part of the period concerned, preparations were made for the nephew's adoption and that the nephew himself wished to be adopted.         The European Court of Human Rights has pointed out that Article 8 of the Convention also has a procedural aspect: when a child is in care, the parents shall be involved in the decision-making process to a degree sufficient to provide them with the requisite protection of their interests (Eur. Court judgments of 8 July 1987, W. v. the United Kingdom, Series A no. 121, p. 29, para. 64; B. v. the United Kingdom, Series A no. 121, p. 73, para. 64, and R. v. the United Kingdom, Series A no. 121, p. 118, para. 68).         We consider, however, that these procedural rights protected by Article 8 cannot be the same insofar as more distant relatives are concerned.   In this respect, the domestic authorities must have a wider discretion, when deciding whether or to what extent it is appropriate to involve such relatives in the decision-making process.   In the present case it appears that the local authority was in touch with the applicant on 21 June 1989 to discuss the question of access with him. Moreover, the county court judge found, on 27 February 1992, that the applicant's nephew had declared that he did not wish to see the applicant.   Having regard to all these circumstances, we do not consider that the local authority violated its obligations under Article 8 or that the procedure as such, as applied in the present case, was in breach of that Article.         For these reasons we conclude that Article 8 has not been violated in the present case.                                 Appendix I                         HISTORY OF THE PROCEEDINGS   Date                              Item ________________________________________________________________   05.10.89          Introduction of the application   14.05.90          Registration of the application   Examination of admissibility   07.09.90          Commission's decision to invite the parties to submit                  observations on the admissibility and merits   17.09.91          Government's observations   18.10.91          Commission's grant of legal aid   06.12.91          Applicant's reply   15.05.92          Commission's decision to declare the application                  admissible   Examination of the merits   15.05.92          Commission's deliberations   03.7.92           Applicant's observations   04.7.92           Consideration of the state of proceedings   17.10.92          Consideration of the state of proceedings   16.12.92          Government's observations on the merits   09.02.93          Commission's deliberations on the merits, final votes                  and adoption of the Report