CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 avril 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 }                            Application No. 19579/92                       by the B. family                       against the United Kingdom         The European Commission of Human Rights sitting in private on 2 April 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  F. ERMACORA                  G. SPERDUTI                  E. BUSUTTIL                  G. JÖRUNDSSON                  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                  M. NOWICKI              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 23 December 1991 by the B. family against the United Kingdom and registered on 4 March 1992 under file No. 19579/92;         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       19 November 1992 and the letter in reply submitted by the       applicants on 26 January 1993;         Having deliberated;         Decides as follows:   THE FACTS         The first and second applicants, who are married, were born in 1943 and 1942 respectively.   They have three children, W. (the third applicant) born on 2 January 1978, E. (the fourth applicant) born on 19 January 1980 and S. (the fifth applicant) born on 5 October 1982. They are all British citizens and resident in South Ronaldsay, Orkney.         The applicants are represented before the Commission by Mr. David Lyons, a solicitor.         The facts as submitted by the parties may be summarised as follows.         The first and second applicants went to live on South Ronaldsay in the Orkney Islands in 1976.   Background to the case         Among the other families living on South Ronaldsay at all material times was a family named W., which included 15 children.   In or about 1987 some of these children were discovered to have been sexually abused by their father. In 1988 he was convicted of sexual offences against the children and sentenced to 7 years' imprisonment.         Following the placement in care of the W. children by social workers employed by Orkney Islands Council (the local authority having statutory responsibility for the welfare of children), the   children were repeatedly questioned by a police officer and by officials of the Royal Scottish Society for the Prevention of Cruelty to Children (RSSPCC), a child protection agency employed by local authorities dealing with inter alia the sexual abuse of children.   The questioning suffered from a number of serious shortcomings, which are discussed in a report dated 27 September 1991 by V. P. Mellor, Consultant Clinical Psychologist, Head of the Department of Clinical Psychology and Director of the Jubilee Centre for Child Abuse at Booth Hall Children's Hospital, Manchester.   These included the use of leading questions, telling one child what another had said, indoctrinating or influencing the children, and questioning the children over-frequently and for excessive periods of time.         After prolonged questioning, three of the abused W. children told stories with certain common features.   They involved besides the W. family a number of other adults and children who lived on South Ronaldsay.   The stories depicted these persons as taking part in open- air ceremonies at which the children had sexual connection with the adults. The persons named by one or more of the children included members of four families resident nearby and the local priest.         The adults involved in the questioning (i.e. the police officer and the RSSPCC officials) and the social worker at Orkney Islands Council to whom the results were reported (Sue Millar) appear never to have doubted the reliability of those statements, or to have considered that further evidence was necessary before any action was taken.         By 14 February 1991 a decision appears to have been taken by Orkney Islands Council to remove the M., T., H. and B. children from their homes. The placements were to be for a period of 3 months.   The sexes of some of the children were not known.         By 26 February 1991 it had been decided that, after removal from their homes, the children should all be separated from each other. This was to facilitate "disclosure" (i.e. confession that abuse had occurred) and prevent "shut-down" (the converse of disclosure).   The theory of disclosure operates on the assumption that the child has been abused and that it will be therapeutic for the child to admit this. For the same reason, it was decided that all access to the children by parents or siblings should be excluded and that the children should not be allowed any of their personal belongings including toys.   These were considered to be "inhibitors", i.e. they would inhibit "disclosure".   The execution of the Place of Safety Orders         At about 9.30 a.m. on 26 February 1991 orders (known as "Place of Safety Orders") were obtained by the Social Work Department from the Sheriff at Kirkwall (the local judge) in respect of each of the nine children.   The families were not notified of the applications for the orders and had no opportunity to make representations at the hearing before the Sheriff.   The orders were granted under Section 37 (2) of the Social Work (Scotland) Act 1968.   Each order was in identical terms, and granted "authority to Orkney Islands Council with assistance as necessary to take to detain at a place of safety the above mentioned child".         At 7.00 p.m. on 27 February 1991, about 8 police officers and social workers arrived at the house and told the second applicant that they had a warrant to take the children away. The children were then driven away.   They were not allowed to take anything with them except the clothes they were wearing.         As far as the second applicant can recall, no attempt was made to explain to her or the children the nature and implications of a Place of Safety Order, or the purpose, timescale or procedure involved in the children's removal or the arrangements thereafter.         During the period that followed, the second applicant's letters (and all others intended for the children) were given to the Social Work Department for onward transmission.   The letters were not in fact delivered to the children.   Other items, such as writing paper, handkerchiefs, perfume, Easter eggs, the children's own mugs and teddy bears, were also sent by the second applicant for the children. They were also stopped by the RSSPCC.         The second applicant requested access to the children, but was told by the Social Work Department that that was impossible.   Proceedings before the Children's Hearings and the Sheriff         By letter dated 4 March 1991 the Acting Reporter, Mr. Sloan, wrote to each of the parents in respect of each of the nine children. The letters were in almost identical terms and advised the parents that Children's Hearings had been arranged for 5 March 1991 (the last day legally permitted). Each hearing was scheduled to last 15 minutes (except those in respect of the B. children, where 10 minutes was allowed for each hearing).         On 5 March 1991, prior to the Children's Hearing of which the parents had been notified, hearings were held in respect of P. and T. H., at which decisions were taken identical to those already taken in respect of the other children.         Shortly before the first hearing the families were given a form relating to each child, accompanied by the grounds of referral and a leaflet explaining the Children's Hearings system.    The grounds of referral stated that, inter alia, the children were exposed to moral danger and had been exposed as a participant and/or observer to acts of lewd, indecent or libidinous practices, including sexual intercourse, which acts took place during the hours of darkness and included the use of ritualistic music, dancing and dress.         At the hearing involving the applicants, the Chairman of the Children's Hearing read out the grounds of referral.   The second applicant was asked whether she accepted the grounds of referral.   She stated that she did not.   There was no discussion of the allegations or of any evidence substantiating them.   No report of any description was produced or referred to.         The Hearing decided to dispense with the children's presence, to issue warrants requiring the children to be detained for a further 21 days (the maximum period permissible:   Section 37 (4) of the 1968 Act). They further decided to direct Mr. Sloan to apply to the Sheriff for a finding as to whether the grounds of referral were established, in accordance with Section 42(2)(c) of the 1968 Act.         The parents were advised of their right of appeal under Section 49(1) of the 1968 Act, and an appeal hearing was arranged for the following day.         On 5 March 1991, following the hearings, applications were made by Mr. Sloan to the Sheriff in respect of each of the children, in accordance with Section 42(2)(c) of the 1968 Act.         On 6 March 1991 the parents' appeals were heard by the Sheriff Principal for the area.   One of the points taken in the appeal was that, by dispensing with the presence of the children, the Hearing had deprived themselves of the benefit of the children's views on the allegations, and on whether they wished to return home.         The Sheriff Principal held that the decision on 5 March to dispense with the attendance of the children was a proper exercise of discretion which should not be disturbed and that the hearing had material on which they could properly come to a decision that the issue of a warrant under Section 37(4) was necessary in the interests of the children. He refused the appeal.   He appointed junior counsel to act as curators ad litem to the children.         On 13 March 1991 the decision to refuse all parties access to their children was confirmed by the agencies involved.         Shortly before the Children's Hearings on 25 March 1991 the parents were informed that medical examinations of the children had been carried out which did not reveal any evidence that sexual abuse had occurred.         At the hearings on 25 March 1991, the second applicant was accompanied by the solicitor and by her counsel, who was stopped when she submitted that the medical evidence did not support the allegations of sexual abuse, and that the children should be returned.   She was ordered not to make such submissions.           At each hearing the Children's Hearing decided to renew the warrant to detain the child in question for a further 21 days, being the maximum legally permissible (Section 37(5) of the 1968 Act).   A cursory report as to the welfare of the children was referred to at the Hearing, which neither the parents nor their legal advisers were allowed to see.         On 3 April 1991 the hearing on evidence began before Sheriff Kelbie with a consideration of procedural aspects of the case, i.e. the failure to involve the children in the proceedings.         On 4 April 1991 he issued a judgment holding that the proceedings were vitiated by the failure to involve the children as they were entitled to be involved in terms of the 1968 Act (Sloan v B., 1991 SLT 530, 534).   He accordingly dismissed the applications made under Section 42, adding that, if he had known how the children were being treated, he would have allowed their appeals on 29 March 1991.         The Sheriff went on to comment on the documentary productions, including the tapes and transcripts of interviews with the children. In relation to the allegations supposed to have been made by the three W. children, on the basis of which the nine children had been detained, and the "disclosure" made by some of those children, he said:         "I am conscious that I have not heard a proof in this case but       I think that in the interests of the children in this case I must       express a view on these matters.   It may well be that what was       going on with the first three children [the W. children] was a       form of therapy.   I am not competent to judge that.   What I am       clear about is that it was no way to get at the truth objectively       and that the statements by the children could not be said to be       spontaneous.   The answers clearly demonstrated they had been       subjected to or witnessed sexual abuse, but there was no doubting       that that had happened within their own family.         Of particular concern is the fact that the disclosures in       question were first made at interviews in February for which       there are no tapes or full transcripts.   The statements of the       children are given without any indication of the questions which       elicited them.   Standing the manner of questioning in the other       transcripts, however, there would be great difficulty in       assessing how reliable the statements are.         So far as the other children are concerned, two of them certainly       did say things which bore a marked similarity to certain things       said by the first three, but that was with the active       encouragement of those conducting the interviews who were clearly       determined to get a particular response.   The manner of       interviewing them and the first three children amounted to       repeated coaching of a kind which could not only have made the       record of the interviews of doubtful value but may well have       tainted anything they said in court.   In any event, the two       latter children said absolutely nothing to show that they had       experienced or seen any sexual abuse, ritual or otherwise.   One       of them said categorically that it had never happened to her and       she had never seen it happen to anyone else and from what she       said it was clear that what she was describing was something she       had discussed with one of the first three children at an earlier       date.         Whatever the truth of the matter, putting what the first three       children have said at its highest, I am in no doubt that the       risks to the welfare of these nine children in returning them to       their parents are far outweighed by the certain damage being done       by their continued detention and the sooner they are returned to       their parents the better.   And if the reporter is still minded       to take this matter further I hope he will give very serious       consideration in relation to each child separately, just what is       the nature and quality of the evidence he relies on and the       manner in which it was obtained, and perhaps also to the wealth       of contrary evidence before he does so."         In relation to the evidence, the Sheriff stated that he had considered most of the documentary productions in the case and, in particular, had read all the transcripts of interviews with the children and listened to the tapes of the crucial interviews:         "I have also become aware that, on the basis of the warrants to       detain in a place of safety, the nine children subject to these       applications have been held without any contact with any of their       families or friends and, far from being kept in a place of       safety, have been repeatedly taken to another place altogether       to be subjected to what could only be described as cross       examinations designed to break them down and admit to being       abused.   While, no doubt, children taken to a place of safety       could be visited there and asked to say what happened to them,       there is in my view no lawful authority for what took place here,       and I was very glad to hear counsel for the reporter say that       when she realised that that was happening she advised that it       should stop ... what preceded her intervention was, however, yet       another example of failure to regard the children as persons       possessed of rights."         Mr. Sloan appealed against Sheriff Kelbie's decision to the Court of Session under Section 50 of the 1968 Act.         The children were returned to Orkney at about 7.00 pm on 4 April 1991.   They had been in detention for 37 days.         The appeal to the Court of Session was heard on 3, 4, 5, 6, and 7 June 1991.   On 12 June 1991 the Court issued its decision, sustaining the appeal.   The Court held that the Sheriff should not have dismissed the application on procedural grounds, but should have heard evidence. The case was remitted, to be heard by a different Sheriff.         The Court observed that Section 40 (2) which allows the presence of the children to be dispensed with "is a provision which has obvious importance in those cases of child abuse where a child has been severely injured or is so disturbed or distressed by what had happened or may for any reason be exposed to risk or harm if his attendance were to be insisted on."   Interpreting the words "without prejudice" in Section 40 (2) as meaning effectively "without prejudice to the interests of the child so far as Section 41 (2) is intended to protect these interests", the Court held that the child's presence could properly be dispensed with under Section 40 (2) in cases where its attendance for the purposes of Section 41 (2) would be a "mere formality" (Sloan v B., 1991 SLT 530).           By letter dated 24 June 1991 Mr. Sloan notified the parents of the nine children that he was abandoning the applications made by him under Section 42 of the 1968 Act, in accordance with Rule 7 of the Social Work (Sheriff Court Procedure) Rules 1971.         By interlocutory decision dated 25 June 1991 the Sheriff dismissed the applications in respect of each child.         Following a Case Conference on 15 July 1991 the children's names were removed form the Child Protection Register.   Relevant domestic law and practice         Under Section 33 of the Social Work (Scotland) Act 1968 (the 1968 Act) as amended   a "Children's Panel" is required to be set up for the area of every local authority, including Orkney Islands Council.   The children's panel are appointed by the Secretary of State for Scotland, on the basis of names and advice submitted to him by a Children's Panel Advisory Committee formed by the local authority (1968 Act, Schedule 3).   There are no prescribed qualifications for panel membership. Children's Hearings are a tribunal consisting of three members of the children's panel (Section 34 (2) of the 1968 Act).         Children's Hearings have jurisdiction in relation to "children". The expression is defined by Section 30 of the 1968 Act as meaning children under 16, and certain children aged between 16 and 18.         Children's Hearings have jurisdiction over such children where they "may be in need of compulsory measures of care" (Sections 32(1) and 34(1) of the 1968 Act), i.e. where one or more of the conditions mentioned in Section 32 (2) of the 1968 Act are satisfied.   Those conditions include that the child is exposed to moral danger, or has been the victim of sexual or physical abuse, or is a member of the same household as a child who has been the victim of sexual or physical abuse, or is a member of the same household as a person who has committed an offence of sexual or physical abuse against a child.         Appeal lies to the Sheriff in respect of any decisions made by a Hearing.   COMPLAINTS         Article 3 of the Convention         The applicants submit that the treatment of the children and their parents amounted to treatment which was both "inhuman" and "degrading" within the meaning of Article 3.   The applicants refer in this context especially to the holding of each child in total isolation from family and friends, and to his or her subjection to repeated and lengthy interrogation which, however well-intentioned, was of such a character as to be "quite abusive to the children concerned" (Mellor Report) and "designed to break them down" (Sloan v B. above).   It is, the applicants submit, difficult to conceive of more inhuman behaviour towards children, in a democratic society, than was suffered by the children in the present case.         Article 5 of the Convention         The applicants submit that in the present case the children were deprived of their liberty; they were detained against their will.         The procedure by means of which the children were deprived of their liberty was laid down by domestic law.   That domestic law was not, it is submitted, in conformity with the Convention, in that it did not respect the rights of the children under Articles 6 or 8. Accordingly, it is submitted that the deprivation of liberty was not in conformity with Article 5 of the Convention.         It is further submitted that the children's rights under Article 5 para. 4 were also violated.   Neither they, nor their parents on their behalf, had any effective opportunity to take proceedings by which the lawfulness of their detention (in anything more than a formal sense) could be speedily determined.         Article 6 of the Convention         The applicants submit that Article 6 is applicable to the children's hearing and the proceedings before the Sheriff and to the Case Conferences.         The rights of the parents under Article 6 para. 1 were, it is submitted, infringed inter alia by the fact that they did not have equal access to the relevant documents and other information, including the transcripts of the children's interviews and medical examinations. Also no opportunity was allowed, until the stage of the hearing on evidence before the Sheriff for the refutation of the allegations. That hearing occurred after the children had been in detention for more than 5 weeks.   That was not a "reasonable time" in the context of young children being detained and refused all contact with their families.           The rights of the children under Article 6 para. 1 were, it is submitted, violated in addition in the following respects:   (1)    They were not notified of the hearings.   (2)    They were not given any opportunity to be present or to be       represented at the hearings prior to the hearing on evidence       before the Sheriff.   (3)    They were prevented from having access to a lawyer.         Article 8 of the Convention         The applicants submit that the actings of the various public agencies involved in the present case constituted interferences with their right to respect for their private and family life, their home and their correspondence.         It is submitted that the rights of the parents and the children under Article 8 were infringed in the present case in the following respects:   (1)    There was no adequate evidence to justify the removal of the       children from their homes.   (2)    The taking of the children from their beds, and the invasion of       the home at that hour, was in any event not proportionate to the       aim pursued.     (3)    Neither the parents nor the children were at any stage involved       in the decision-making process to a degree which, having regard       to the serious nature of the decisions to be taken, was       sufficient to provide them with the requisite protection of their       interests.   (4)    The prevention of all contact by the parents with the children       was not proportionate to the aims pursued.   Supervised access       could have been considered.   Telephone calls or tape-recorded       messages could have been permitted.   (5)    The prevention of all contact between the children was not       proportionate to the aim pursued.   (6)    The prevention of all contact by the children with siblings,       family, friends and others was not proportionate to the aim       pursued.   (7)    The refusal of all information as to the whereabouts of the       children and the medical treatment and other treatment given to       them was not proportionate to the aim pursued.   (8)    The compulsory medical examinations constituted an interference       with the right to respect for private life and also with the       right to respect for family life.   (9)    The prohibition of all correspondence, even that from the       children to the parents, was plainly not proportionate to the aim       pursued.   (10)   The use of the surveillance devices during questioning infringed       the children's right to privacy.   (11)   The refusal to allow the children to have personal possessions       was not proportionate to the aim pursued.   (12)   The subjection of the children to frequent and lengthy       interrogation was not proportionate to the aim pursued.   (13)   None of the actings complained of was in accordance with the law.           Article 13 of the Convention         In the circumstances of the present case, the applicants submit that it may be unnecessary to examine Article 13, depending on the decision taken in relation to Article 6.         In the event, however, that it is necessary to examine Article 13, it is submitted that the facts which constitute violations of Article 6 in addition constitute violations of Article 13.           Article 2 of Protocol No. 1 to the Convention         The rights of the parents and children under Article 2 of the First Protocol were, it is submitted, infringed.   The children were deprived of education throughout the entire period of their detention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on   23 December 1991 and registered on 4 March 1992.         On 22 May 1992, the Commission decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the application.         The Government's observations were submitted on 19 November 1992 after two extensions in the time-limit.         On   11 December 1992, the Commission decided to grant legal aid to the applicants.         By letter dated 26 January 1993, the applicants informed the Commission's Secretariat that following counsel's advice they intended to commence proceedings in the Scottish courts and therefore withdrew the present application.   REASONS FOR THE DECISION         In light of the applicants' expressed intention to withdraw, the Commission finds that they no longer intend to pursue their application.   The Commission further considers that respect for Human Rights as defined in the Convention does not require it to continue the examination of the application.         It follows that the application may be struck off the list of cases pursuant to Article 30 para. 1 (a) of the Convention.         For these reasons, the Commission unanimously           DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.   Secretary to the Commission             President of the Commission           (H.C. KRÜGER)                          (C.A. NØRGAARD)