CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 20609/92                       by Peter WILLS                       against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 13 October 1993, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  G.B. REFFI                  B. CONFORTI                  N. BRATZA              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 20 May 1992 by Peter Wills against the United Kingdom and registered on 11 September 1992 under file No. 20609/92;         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       4 May 1993 and the observations in reply submitted by the       applicant on 26 June 1993;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a British citizen born in 1936 and resident in Weymouth. The facts as submitted by the parties may be summarised as follows.         The applicant married his present wife in 1988, his first wife, the mother of his two sons having died.         On 5 March 1988, the girlfriend (later the wife)   of the applicant's younger son gave birth to twins J. and N..         In April 1988, J. suffered a broken arm. In the subsequent criminal proceedings for grievous bodily harm without intent, the applicant's son pleaded guilty and was put on probation for one year.         At a case conference held on 5 May 1988, the social services of the local authority decided to keep the family together and to provide support services.         On 1 October   1988, N. was taken to hospital by her mother and found to have suffered a skull fracture.         On 6 October 1988, both parents were arrested. On 7 October 1988, Place of Safety Orders were obtained in respect of the children.         On 13 October 1988, an interim care order was made in favour of the local authority and the twins were placed with short term foster parents.       On 30 January 1989, the parents, ie the applicant's son and his girlfriend, were married.         A full care order was made on 13 February 1989.         In April 1989, the Area Manager decided that the twins should be placed for adoption and that the parents' access be reduced to two hours every six weeks.         On 12 June 1989, the parents appeared in the Crown Court. The mother pleaded guilty to neglect contrary to section 1 of the Children and Young Person's Act 1933. The father pleaded not guilty and was subsequently convicted of the same offence and sentenced to six months' imprisonment plus   six months for breach of the probation order. The mother was placed on probation for two years.         On 2 August 1989, there was a meeting of the Adoption Panel at which the decision to place the twins for adoption was confirmed. The County Solicitor informed the meeting that the applicant's solicitor had informed him that the applicant considered that he and his wife had not been adequately considered or assessed as alternative carers for the twins. As a result, on 16 August 1989, the Panel decided not to implement the adoption procedure until an assessment of the paternal grandparents had been carried out.           An undated report was produced by a social services team manager after six visits over a period of three months. The social worker had been impressed by the grandparents, in particular, the applicant who had shown sustained and sincere interest in the twins from the beginning. She found them co-operative, strongly motivated and willing to work with the social services. She mentioned the obvious problems arising from the applicant's age (he was 54) and his wife's disability (she had lost an arm) but commented that the applicant and his wife had thought through the difficulties and would, inter alia, have someone in the home to assist the applicant's wife.         The report was the subject of discussion at a planning meeting held on 18 January 1990 by the social services. It was decided to stay the adoption until consideration had been given to the other alternatives of placing them with the paternal grandparents   or with the natural parents. They approached a medical expert, Dr. Bentovin, who submitted an initial report in March 1990 in which he did not support placement with the grandparents but criticised the drift and delay on the part of the local authority. There was a further report in May 1990 following a meeting with the natural parents in which he expressed doubt that the twins could be safely rehabilitated with their parents.         The applicant's son's appeal against conviction was dismissed. The local authority wrote to Dr. Bentovin proposing that the twins be placed with their mother while the father served his sentence after which the father could be given defined access with a view to eventual rehabilitation. The doctor responded by pointing out that further delay in finding a permanent placement was not in the twin's interests but gave limited support to the assessment of the mother.          On 13 July 1990, there was a meeting to discuss the case attended by the professionals involved in the case. It decided that rehabilitation with the mother begin immediately at a family centre.         On 28 August 1990, the twins' foster parents moved and the twins had to be placed with substitute foster parents, Mr. and Mrs. P..   Mrs. P. stated that during her care of the children the grandparents would visit alone and take the twins out for the day.   She found no problems with these visits and was very aware of the love and bonding between the twins and their grandparents.         The rehabilitation programme however did not meet with acceptance by the Director and/ or Deputy Director of the Social Services who directed the Child Protection Officer to report on the proposals. In her report of 24 October 1990, she concluded that in view of the serious injuries suffered by N. there were insufficient reasons to support deviation from the original plan of placing the twins permanently elsewhere. Her recommendation of proceeding with the adoption was ratified by the Director on   29 October 1990. Consequently, the parents and grandparents were informed in December that rehabilitation was no longer planned and an application was made for a freeing for adoption order.         On 7 March 1991, the twins were introduced to prospective adopters.         On 23 March 1991, the parents issued an application seeking a discharge of the care orders. In light of this, the solicitors acting for the grandparents requested that the local authority deferred their intention of handing over the twins to the adopters on 1 April 1991.         On 3 April 1991, the local authority placed the twins with the prospective adopters.         Throughout the placement of the twins in care the applicant enjoyed access visits. While the twins were in foster homes, he and his wife took them out one day per month unsupervised. After their placement with the prospective adopters, the applicant and his wife had access once every six weeks at the same time as the parents.         Pursuant to the coming into force of the Children Act 1991, the parents' application to discharge the care orders was transferred to the High Court combined with the application by the local authority to terminate access by the parents and the paternal grandparents. In these proceedings the applicant and his wife were parties and represented.         The guardian ad litem did not support the parents' application and was opposed to face to face contact at the present time, favouring indirect contact with both parents and paternal grandparents. She commented that the case had been mismanaged by the social services who had allowed the case to drift along. While she thought the twins had to a certain extent been protected from the resulting uncertainty she stated that the parents had had a terrible time neither being helped towards rehabilitation nor supported in severing their links.         In his judgment of 18 December 1991, the judge commented that:              "In this case the <local authority> accepts that            unacceptable and avoidable delay occurred between August            1989 and November 1990, a period of fifteen months and that            the cause of that delay was a failure to ... `grasp the            nettle'..."         He did not find the parents' accounts of the injuries credible and noted that whatever their cause they failed on both occasions to obtain prompt medical help. He found the decision of the local authority finally to pursue the adoption without deferral was made bona fides but commented that it had undoubtedly prejudiced the parents since in the eight months with the prospective adopters the twins had made dramatic developmental progress and were happy and secure. As a result, he found that he had no alternative but to find that the welfare of the children required that they remain with the prospective adopters. He accordingly refused to discharge the care orders.         As regarded access, he noted that the parents and grandparents had been opposed to the prospective adoption and there was a risk that access could diminish the twins' sense of attachment to their new home. He agreed therefore with the guardian ad litem's proposal of indirect contact which would leave the door open and ordered indirect contact, namely, the exchange of photographs and cards on at least two occasions per annum.     COMPLAINTS         The applicant complains that he has been deprived of a normal family life in that his bond with his grandchildren has been interfered with. The applicant complains in particular of the length of time taken by the local authority to deal with the case of his twin grandchildren during which time they were given false hope of rehabilitation of the twins with the parents. He complains that the local authority failed to give proper consideration to the question of rehabilitation with himself and his wife.         The applicant also complains that the local authority are failing to comply with the order of the judge as to indirect access.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 20 May 1992 and registered on 11 September 1992.         On 2 December 1992, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.         The Government's observations were submitted on 4 May 1993 after two extensions in the time-limit and the applicant's observations in reply were   submitted on 26 June 1993.       THE LAW         The applicant complains that his relationship with his grandchilden has been interfered by the local authority. The children were in the care of the local authority and have now been placed for adoption. The applicant complains of several aspects of the local authority's handling of the case, in particular the delay and an alleged failure properly to carry out an assessment of himself and his wife as alternative carers.         The   Commission has examined the applicant's complaints under 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 Commission notes first of all that the Government acknowledge that the applicant's relationship with his grandchildren falls within the scope of "family life" as protected by the first paragraph of the above provision and that the effect of the local authority's actions in placing the children for adoption with the resulting termination of direct contact constitutes an interference   with his right to respect for that family life.         The question arises whether this interference was 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.         In this respect, the applicant has complained of three aspects of the case - the delay in the overall procedure which was the subject of criticism by the judge and the guardian ad litem, the alleged failure to assess himself and his wife as alternative carers and failure of the local authority to comply with the court order on indirect access.         As regards the delay, the Government submit that the proceedings before the court in the initial   care proceedings and in the application for discharge were not subject to unreasonable delay. The fifteen months referred to by the judge were necessary to produce an assessment of both the applicant and the parents and was correspondingly in their interests. As regards the assessment, they point out that a social worker did compile a report on the applicant and his wife which was submitted to the social services for discussion but that this was overtaken by events, namely, the investigation into rehabilitation with the parents which the applicant himself supported.         The Commission has considered the submissions of the parties. It finds that the complaints raise serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits.   It follows that the complaints cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring them inadmissible has been established.           For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE without prejudging the       merits.   Secretary to the First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                      (A. WEITZEL)