CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.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. 25054/94                       by E.D.                       against Ireland        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 1 March 1994 by E.D. against Ireland and registered on 1 September 1995 under file No. 25054/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The facts as submitted by the applicant may be summarised as follows.        The applicant is an Irish citizen, born in 1952 and has a contact address in Cork, Ireland. He is represented before the Commission by Niall Browne, a solicitor practising in Dublin.        The applicant is the father of two children, E and P, born on 11 August 1985 and 1 April 1987, respectively. He and the mother of the children are not married and do not live together but continue to be on good terms. Both are members of the travelling community.        On 6 October 1985 the mother took E from hospital in Dublin despite warnings as to E's frail health and the need for special feeding. On 7 October 1985 the mother was located with E on a street begging and homeless. E was reported as cold, hungry and bleeding. The mother refused to go to a mother and baby home but was willing to allow E to be admitted to hospital. On 8 October 1985 the Southern Health Board obtained a place of safety order in relation to E.        On 4 November 1985 the District Court adjourned a hearing, in relation to a care order in respect of E, because the father had attended the court intoxicated. On 5 November 1985 the District Court committed E to the care of the Southern Health Board under section 58 of the Childrens Act 1908. The applicant attended the hearing but was not represented. The mother did not attend any of these hearings. On 30 October 1985 E was placed in long term foster care with a married couple living in Cork who were not travellers.        In the period which followed neither the applicant nor the mother were in a position to seek the return of E and were content that E remain in foster care.        On 15 July 1987 P was committed to the care of the Eastern Health Board by order of the District Court under section 58 of the 1908 Act. P was also then placed in long term foster care with a married couple living in Dublin.        In or around 1991 the foster parents of E applied to the Adoption Board for an order for the adoption of E. The Adoption Board decided that, if the High Court made an order under section 3(1) of the Adoption Act 1988 ("the 1988 Act"), the Adoption Board would make the necessary adoption order. On 15 September 1992 the Southern Health Board therefore applied to the High Court for an order under section 3(1) of the 1988 Act which would authorise the Adoption Board to make an order for the adoption of E by his foster parents.        A social work report (which was completed in 1989 by the social worker dealing with this matter on behalf of the Southern Health Board and submitted to the High Court) chronicled the mother's ongoing alcohol problems and her involvement in prostitution from a young age. She was often homeless and she had a chronic glue sniffing problem. The applicant was also described as being violent and disturbed with a severe drinking problem. Both the applicant and the mother were reported as being in prison in September 1988. The same social worker recorded in a letter to the Adoption board dated June 1992 (which letter was also submitted to the High Court) that the natural parents had asked for a meeting between them and E on three occasions. The natural parents failed to attend two of these visits and the applicant was intoxicated during the other visit. That social worker reported that the applicant and the mother were intoxicated and incoherent during most of his meetings with them. It was also recorded in the latter social work report that photographs of the children had been sent to the applicant and the mother, that E and P had met on two occasions in 1991 and 1992 and that the respective foster parents had agreed to arrange about three meetings each year between E and P.        The case was heard by the High Court in July and October 1993. The applicant and the mother were represented at the hearing by a solicitor and two barristers and their legal costs were paid by the Southern Health Board, pursuant to an order of the High Court of 5 February 1993.        Oral evidence was given to the High Court by the applicant, the mother, social workers and a doctor as to, inter alia, the applicant's and the mother's past and current personal circumstances. The applicant had spent the greater part of the previous nine years (namely, the duration of his children's lives) in and out of charitable institutions for the homeless and had a chronic drinking problem (though he had joined Alcoholics Anonymous prior to the hearing). The mother had been admitted many times to an adult psychiatric institution and to another hospital, the latter relating specifically to her ongoing solvent addiction. She was, at the time of the hearing, serving another prison sentence. Evidence was also given as to the public support services made available to the applicant and the mother in relation to their problems over the past years.        The applicant and the mother objected to the proposed adoption on the grounds that family rights would cease permanently and E's name would be changed. E would lose his traveller identity, his right of access to his traveller heritage and contact with his brother. In addition, they would lose their right to educate their child in traveller culture, history and identity.        The decision of the court, allowing the application of the Adoption Board, was delivered on 5 November 1993. Mr. Justice Geoghegan, in delivering the judgment of the court, held as follows:        "The application is opposed by the natural parents on the grounds      that the adoptive parents are from the settled community, whereas      they the natural parents are from the travelling community. It      is submitted that the proposed adoption would damage the child      by depriving him of his true culture. Essentially there is no      other objection taken to the adoption.        Most importantly both natural parents acknowledge that neither      of them is capable within the foreseeable future of rearing the      child. Both suffer from severe alcoholism problems and in the      case of the natural mother, there is a further problem of solvent      abuse. The mother is currently serving a prison sentence. Each      parent however, when giving evidence in court has expressed the      hope that the child at an older age might be able to live with      them or either of them and enter fully into his cultural      heritage, being that of the travelling community.        Both natural parents are happy, that in the meantime the child      should remain with the foster parents but they do not want an      adoption. I am satisfied on the evidence which I have heard that      an application under section 3(1) of the 1988 Act has been      properly made by the Health Board. Before I can accede to it, I      must be satisfied as to the fulfilment of the requirements set      out in <section 3(1)>. In considering that issue I must follow      the guidelines of the Supreme Court .... In particular, I must      note and follow the view of the Supreme Court that "no mere      inadequacy of standard in the discharge of the parental duty      would in the opinion of the court suffice to establish" the proof      of failure in parental duty and that "the failure must arise for      physical or moral reasons" and not, for instance, economic      circumstances.        I am absolutely satisfied that all the requirements of the Act      ... are in fact fulfilled and I am equally satisfied that it is      in the best interests of the child that I make the Order sought.        I would like, however, to put on record the favourable impression      that I formed of both natural parents despite the addictions and      other problems afflicting them. The Court could not but be      impressed by <a doctor's> evidence as to the likeable nature of      the mother ... . But unfortunately she is hopelessly and      irretrievably addicted for the foreseeable future.        By the same token it was quite obvious that the father was an      intelligent and sensitive person, though for all intents and      purposes an incurable alcoholic. I entirely accept the      genuineness of his concern that the child should lose his culture      and I am satisfied that the father has made a study of the      language, folklore and culture of the travelling people. ...        I now turn to the adoptive parents. They are eminently suitable      to act as parents, ... I am satisfied that they have given love      and affection to the child while in their fosterage. There will      be no damage to the child whatsoever if an adoption order is      made. On the contrary any residual insecurity in the child by      reason of any fear that he might be removed from the foster      parents would be gone and the only parents which he knows will      become his permanent parents."        The Adoption Board subsequently made an adoption order in favour of E's foster parents.   COMPLAINTS   1.    The applicant complains under Article 8 of the Convention:        (a) mainly about the order of the High Court under the Adoption      Act 1988 which led to the non-consensual adoption of E by a non-      traveller family. He submits that that Act should have provided      a secure long term fostering option as an alternative to      adoption;        (b) that the efforts of the relevant Health Boards to reintegrate      the family were inadequate; and        (c) in relation to the fostering arrangements in respect of E and      P;   2.    The applicant also complains:        - under Article 10 of the Convention that the adoption violated      his right to impart information and ideas to E about the      traveller culture, heritage, language and way of life;        - under Article 11 of the Convention that the adoption of E      prevents E from associating as an equal with other members of the      travelling community into which he was born; and        - under Article 2 of Protocol 1 that the adoption of E violated      the applicant's right to educate his son in his traveller      heritage;   3.    In addition, the applicant complains under Article 14 of the Convention that the failure to attempt to match E's background to that of his adoptive parents demonstrated discrimination because in the consensual adoption process every effort is made to match the background of the child and the adoptive parents.   4.    Finally, the applicant complains under Article 13 of the Convention that the constitutional immunity of the Adoption Act 1988 meant that he had no effective domestic remedy.   THE LAW   1.    The applicant raises a number of complaints under Article 8 (Art. 8) of the Convention.   (a)   In the first place, the applicant complains about an unjustified interference with his private and family life. In particular, he complains about the adoption of his son, E, submitting that the High Court should have had a secure long term fostering option available to it for consideration.        The applicant submits that he has suffered as a result of the adoption. He claims, inter alia, that because E was adopted by a non- traveller family and has not retained his name, E has lost access to his traveller heritage, natural parents and background. The applicant has also lost his right to educate E in the traveller culture and heritage. The applicant further submits that with secure long term foster care E could have felt secure with the foster parents to whom he had grown attached and, on reaching adulthood or when the applicant had the resources (both personal and financial) to offer a home to E, E could have chosen which life he wished to lead. In addition, such an option would have meant continued contact visits between E and P. However, such visits are, according to the applicant, likely to cease pursuant to E's adoption and the brotherly bond that had developed between E and P will be lost.        Article 8 (Art. 8) of the Convention, insofar as is relevant, provides as follows:        "1. Everyone has the right to respect for his private and family      life ...        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 considers that the applicant's complaints in relation to his private life do not raise any issues separate to those considered below in the context of his family life.        As regards the applicant's complaints in relation to his family life, the Commission finds in accordance with its established case-law that the decision of the High Court of 5 November 1993 allowing the Adoption Board to make an adoption order in relation to E constitutes an interference with the applicant's right to respect for his family life as guaranteed in Article 8 para. 1 (Art. 8-1) of the Convention (cf., for example, Eur. Court H.R., Eriksson judgment of 22 June 1989, Series A no. 156, p. 27, 59).        It is then necessary to consider 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 set out in Article 8 para. 2 (Art. 8-2) and whether it is "necessary in a democratic society" for one or more of those reasons.        The Commission recalls that the applicant accepts that the High Court did not err in law and that the order of the High Court was taken in accordance with the Adoption Act 1988 ("the 1988 Act"). The Commission also considers it clear from the terms of the judgment of Mr. Justice Geoghegan that the decision of the High Court was taken in the best interests of the child. Accordingly, the Commission can conclude that the decision in question was taken "in accordance with law" and pursued the legitimate aims of protecting the child's health and rights.        As to whether the measure was necessary within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention, the case-law of the Convention organs 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. Furthermore, in determining whether an interference is necessary, the Convention organs 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 as to the necessity of a given measure (see eg. Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27, para. 59).        Moreover, in determining whether or not the decision allowing adoption was necessary, 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. The Commission's task is to examine whether the reasons adduced to justify the interference at issue are "relevant and sufficient" (see eg. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, p. 32, para. 68).        The Commission recalls the evidence before the High Court as to, inter alia, the natural parents' past and current circumstances, the impact an adoption order would have on their ability to pass on the traveller heritage to their child and as to their wish that the child remain in foster care in order to avoid this scenario. The conclusions of the High Court on the evidence are also recalled and, in particular, the Commission notes that despite the "favourable impression" made in court by the applicant and the mother, the court felt bound to conclude that the mother was hopelessly and irretrievably addicted for the foreseeable future and that the applicant was an incurable alcoholic in which circumstances neither was capable of rearing the child within the foreseeable future. Satisfied that all the requirements of section 3(1) of the 1988 Act had been met, that an adoption order would be in the best interests of the child and that the foster parents were "eminently suitable", the court made the order allowing for E's adoption.        The Commission is therefore satisfied that the order of the High Court pursuant to section 3(1) of the 1988 Act was not arbitrary or unreasonable and was supported by "relevant and sufficient" reasons.        As regards the applicant's specific submission that the consequences of an adoption were so extreme that a secure long term fostering option was required as an alternative, the Commission does not consider, in view of the margin of appreciation open to the Contracting States in this area, that the lack of such a statutory option rendered the court decision allowing for the adoption of E disproportionate and unnecessary within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. In any event, the Commission notes that the High Court could have refused the application in which case the child would have remained in de facto long term foster care with the same foster parents. Moreover, the Commission recalls the court's specific conclusion as to the benefit to the child of removing any "residual insecurity in the child by reason of the fear that he might be removed from the foster parents".        The Commission therefore finds, even assuming exhaustion of domestic remedies, that in the circumstances of the present case the interference was justified as being "necessary in a democratic society" for the protection of the health and rights of the children. Accordingly, the Commission concludes that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (b)   Secondly, the applicant complains about the lack of effort by the relevant Health Boards to re-integrate the children with the applicant and the mother (prior to the adoption application) or to help the applicant and the mother overcome their various problems in order to make such re-integration possible.        The Commission recalls that, while Article 8 (Art. 8) of the Convention imposes certain positive obligations on the State to act in a manner calculated to allow family ties to develop normally, it does not oblige the State to positively reestablish conditions of family life already damaged by the people concerned (cf., Eur. Court H.R., Marckx judgment of 13 June 1979, Series A no. 31, para. 310 and No. 6577/74, Dec. 19.12.74, D.R. 1, p. 91).        In this respect, the Commission notes the facilities and support services made available to the applicant and the mother by the authorities both in relation to their continued addictions and as regards contact with and information about their children. In contrast, the Commission recalls the parents' continued alcohol and solvent abuse, their failure to attend a number of pre-arranged contact visits with E, their respective conditions during meetings with the social worker from the Southern Health Board and their respective periods of imprisonment.        Accordingly, the Commission considers that, in the circumstances of this case, there has been no lack of respect for the applicant's family life. The Commission therefore concludes that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   (c)   Thirdly, the applicant also makes a number of complaints in relation to the fostering arrangements in respect of E and P. In particular, he complains, inter alia, about the initial placement of E with a non-traveller family and about the length of time E was left with that foster family. As a result E bonded with that family and a transfer to a travelling family was not an option by the time of the adoption proceedings before the High Court. The taking into care and subsequent fostering of E and P in different districts contributed to the break-up of the family.        The Commission notes that as regards E's initial placement, and even assuming that the applicant had no effective domestic remedy, his complaint in this respect is outside of the time limit set down by Article 26 (Art. 26) of the Convention. As regards E's subsequent care and P's placement and subsequent care, the Commission notes that the applicant did not make an application for guardianship pursuant to the Status of Children Act 1987 and, as such, did not exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention. Therefore the Commission must declare this complaint inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant also complains under Articles 10 and 11 (Art. 10, 11) of the Convention and under Article 2 of Protocol 1 (P1-2) that the adoption of E violated the applicant's right to impart information and ideas to E in relation to his traveller heritage, that E is precluded from associating as an equal with other members of the travelling community and that the applicant no longer has the right to educate E in his traveller heritage. However, in the circumstances of the present case, the Commission does not consider that these complaints of the applicant give rise to any issues separate to those considered above under Article 8 (Art. 8) of the Convention.   3.    The applicant further complains under Article 14 (Art. 14) of the Convention about a failure to attempt to match E's background to that of the adoptive parents. He submits that, in contrast, every effort is made to match the background of the child and the adoptive parents in a consensual adoption process.        The Commission notes that the applicant accepts that by the time of the adoption proceedings the child had already bonded with his foster parents and that there was therefore no reality in any suggestion that E should be moved to different parents. The question raised by this complaint is, therefore, whether the applicant took any steps to challenge E's initial committal to care or E's ongoing fostering at a time when it could have been reasonably said that E had not bonded with those foster parents. In view of the conclusions in these respects at paragraph 1(c) above, the Commission therefore considers that this complaint must also be declared inadmissible as out of time and on grounds of non-exhaustion of domestic remedies pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   4.    Finally, the applicant complains that the constitutional immunity of the 1988 Act meant that he had no effective domestic remedy in violation of Article 13 (Art. 13) of the Convention.        The Commission recalls that Article 13 (Art. 13) of the Convention does not go so far as to guarantee a remedy allowing a Contracting State's laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal norms (Eur. Court. H.R., James and Others judgment of 21 February 1986, Series A no. 98, p. 47, para. 85). Accordingly, the Commission finds this complaint manifestly ill-founded and inadmissible pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber          President of the First Chamber        (M. F. BUQUICCHIO)                      (C. L. ROZAKIS)