CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 décembre 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 }                          Application No. 23387/94                       by John CLARK                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 5 December 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                  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 2 September 1993 by John Clark against the United Kingdom and registered on 4 February 1994 under file No. 23387/94;        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 applicant is a British citizen born in 1952 and resident in Glasgow. He is represented before the Commission by Mr. John Arwel Huw Jones, a solicitor practising in Hereford. The facts as submitted by the applicant may be summarised as follows.        The applicant was married to D. on 10 November 1984. He had cohabited with D. prior to the marriage and a son N. had been born on 22 May 1984 before the marriage. A second child A. was born on 7 May 1985.        On 8 March 1987, D. left the matrimonial home leaving the children with the applicant. Decree nisi of divorce was granted on 23 March 1987. On 23 April 1987, D. obtained orders of ouster and non- molestation requiring the applicant to vacate the matrimonial home and to refrain from molesting or otherwise interfering with her. Custody of the children was granted to D. with reasonable access to the applicant.        The applicant attended access visits regularly. He applied for custody of the children on 19 October 1987.        From November 1987, the children were placed in the care of the local authority at D.'s request.        On 2 March 1989, the applicant's application for custody was heard before the County Court at the same time as an application by the local authority for a care order. The judge commented favourably on the applicant's commitment to his children and his ability to take care of them. However he accepted the view of the local authority that there was an unacceptable risk of further emotional damage to the children if returned to the applicant. He made a care order in favour of the local authority but commented that rehabilitation with the father did not appear to have been explored and that the local authority should not assume that an application for freeing for adoption would be a mere formality.        On 13 March 1989, a meeting was held by the local authority which identified three options: rehabilitation with the applicant, application for freeing for adoption or a long term foster placement with regular defined access to the applicant. However, in a subsequent meeting in November 1989,   the possibility of rehabilitation with the applicant was no longer considered. The three options were presented as being long term fostering with access by the applicant, closed adoption or open adoption with access by the applicant.        In a letter dated 3 November 1989, the local authority explained to the applicant that there were 2 options ie. long term foster care with a view to adoption or an application to free for adoption. Access was not mentioned. At a subsequent meeting, the applicant informed the local authority that he wished to pursue plans to have the children returned to his care.        At a meeting on 6 December 1989, the local authority decided rehabilitation with the applicant was not possible and that an application should be made to free the children for adoption. It was decided to reduce the applicant's access from once per week to one afternoon per month. The applicant was not informed that the meeting was to take place or that access would be discussed.        By a letter dated 12 December 1989 the local authority informed the applicant that access was to be reduced because of the decision against rehabilitating the children with him.        On 5 March 1990, the Adoption Panel recommended that applications be made to free the children for adoption. The applicant was not informed or consulted or given the opportunity to make representations prior to this decision.        On 10 April 1990, the applicant received a letter from the local authority informing him that the children were being introduced to prospective adopters and that his final access would take place on 27 April 1990.        On 20 April 1990, the children were placed with their prospective adopters Mr. and Mrs. X..        On 2 May 1990, the local authority issued freeing applications in the County Court with the request that the applicant's consent be dispensed with on the ground that it was being withheld unreasonably.        In her report dated 20 September 1990, the guardian ad litem expressed the view that an open adoption with access to the applicant would in principle meet the needs of the children and concluded with regret that such an arrangement would threaten the existing placement with Mr. and Mrs. X. While Mrs. X might be able to tolerate access if ordered, Mr. X could not.        On 18 January 1991, the County Court judge made an order freeing the children for adoption and dispensing with the applicant's consent. In his judgment, the judge expressed his view that the actions of the local authority were "to say the least regrettable" in that they proceeded with complete disregard to the expressed view of the court with regard to dispensing with consent. He saw no justification in the action of the local authority reducing the applicant's access while the children remained with their foster parents.   He noted also that the local authority had breached their code of practice in not consulting with the applicant before   taking the decision to terminate access completely. He found however that the security of the children rendered adoption desirable, having regard to the history and emotional upset to the children in the past. He commented that had the application been heard promptly, he would have refused to dispense with the father's consent considering that the access which had continued for so long, with such regularity was in the children's interests.        Since however the judge was satisfied that the placement would break down with disastrous results for the children if there was access (as Mr. X was totally opposed to such a possibility) and since another move of the children was unacceptable, he was driven to the conclusion that orders should be made dispensing with the applicant's consent.        The applicant appealed this decision by notice dated 31 January 1991 on the ground, inter alia, that the evidence of the prospective adopters had not been heard in court.        On 12 July 1991, the Court of Appeal upheld the appeal on the ground that where the attitude of the prospective adopters to access was crucial to the decision the judge could not determine properly the best interests of the children without them being heard before the court. It noted also the failure of the local authority to fulfil its duty under the applicable regulations to explain to the father the legal implications of and procedures concerning the freeing for adoption of the children and to provide him with written information about those matters which might have been material to the applicant's failure to apply promptly to reinstate access. It criticised the local authority's handling of the case as "inept and insensitive".        On 29 October 1991, the High Court heard the applicant's application for reinstatement of contact. In his judgment of 30 October 1991, the judge found that the applicant had not entirely given up his desire of having the children returned to him and he was satisfied, as found by the guardian ad litem, that access risked disrupting the children's security in their adoptive home to an unacceptable extent. He commented that the previous access had been beneficial to the children and that one had to reflect with some sadness on the guardian's view that a consequence of the decisions wrongly taken in 1990 had been to sacrifice the advantage to the children of their contact with their father in favour of the perceived advantage of a permanent placement with this particular family.        In August 1992, Mr. and Mrs. X. commenced adoption proceedings in respect of the children and on 17 March 1993, after another contested hearing, the County Court granted adoption orders in respect of both children with no condition as to contact.   COMPLAINTS        The applicant invoked Article 8 of the Convention. He submitted, inter alia, that the local authority failed to respect his family life by, inter alia, failing to consult him or offer him the opportunity to make representations before making decisions relating to his relationship to his children; failing to comply with the relevant regulations and wrongly reaching decisions concerning access and freeing for adoption. In particular he submitted that the local authority   should not have placed the children with adoptive parents who were opposed to access in circumstances where the passage of time would make it probable that the court would be obliged in the children's interests to refuse access and allow the adoption to proceed.        The applicant also invoked Article 6 para. 1 of the Convention. He complained of the fairness of the proceedings and of the delays which occurred, which resulted in orders being made freeing for adoption and refusing access which might otherwise not have been made.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 2 November 1993 and registered on 4 February 1994.        On 31 August 1994, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.        By letter dated 10 March 1995, the Government informed the Commission that it proposed settling the case on the basis of payment of a sum of ex gratia compensation and legal costs. Following negotiation between the parties, the applicant informed the Commission by letter dated 14 November 1995 that he had accepted the Government's offer of £7 000 pus legal costs.   REASONS FOR THE DECISION        The Commission notes that the applicant has accepted the Government's offer to settle the case and accordingly that he wishes to withdraw his application.        In these circumstances, the Commission finds that the applicant does not intend to pursue his application before the Commission since the matter has been resolved. 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 of the Convention.        For these reasons, the Commission, unanimously,        DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                           (C.L. ROZAKIS)