CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 26729/95                        by Helen Stockford                        against the United Kingdom          The European Commission of Human Rights (Second Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, 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 17 March 1995 by Helen Stockford against the United Kingdom and registered on 17 March 1995 under file No. 26729/95;        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 can be summarised as follows:        The applicant is a British citizen, born in 1969 and resident in Southmead, Bristol.   a.    Particular circumstances of the case        The applicant gave birth to a son, ("J"), on 4 April 1992.   She also has another son ("K"), born on 26 May 1989.    For the first 21 months of his life J was brought up by the applicant and the applicant's mother, Mrs. L, in whose house they all lived.        Between July 1992 and January 1994, the applicant brought J to Southmead hospital on numerous occasions (during certain periods, every three to four days) claiming that J had been having fits during which his lips would turn blue and he would shake.   On 6 April 1993 J was diagnosed as epileptic and prescribed CPZ, starting at 50 mg per day to be increased to 100 mg.        Between August and November 1993 J was admitted to hospital on five occasions and the applicant reported a total of 13 fits, three blackouts and possible faints on four or five occasions, none of which were observed in hospital.   On many of these occasions he had symptoms of vomiting, ataxia and drowsiness.   On 21 October 1993, the CPZ level in J's blood was found to be higher than it should have been.        On 18 December 1993 the applicant reported screaming fits and head banging.   J was seen by Dr. S.   He carried out neurological tests that proved negative.        On 6 January 1994 the applicant brought J into casualty, but there were no beds and J was therefore discharged.   On 7 January J was brought back to casualty and discharged the next day. On 9 January J was readmitted, then again on 10 January and he remained in hospital until 13 January 1994 when he was again discharged.   On 13 January the applicant called an ambulance, the note from which indicates that either a post-epileptic seizure state or the effects of an overdose of CPZ were witnessed.   J remained in hospital until the morning of 21 January when he was discharged having had an MRI scan the previous day that was normal.   J was readmitted on the evening of the same day having suffered another fit.   A blood sample was taken at 21.45 hours that showed blood levels of CPZ at the very top of the therapeutic range. J remained in hospital.   Dr. S, who had been treating J since December 1993, believed that J had suffered the effects of an overdose of CPZ.        On 27 January 1994, while J was in hospital, Avon County Council ("the Council") obtained an emergency protection order which prevented the applicant from taking J out of hospital.   On 4 February 1994, an interim care order was obtained by the Council and, on discharge from hospital, J was entrusted by the Council to foster parents.   It appears that J did not suffer another fit until 12 months after having been taken into care.        The Council sought and obtained the emergency protection order and the interim care order on the grounds that Dr. S. believed that the applicant had, on two occasions, intentionally given J overdoses of the medication that had been prescribed for his epilepsy.        Subsequent to the interim care order, the Council sought expert advice on the psychological state of the applicant from Dr. B in order to decide whether J needed to be kept in care such that a permanent care order should be applied for.   Dr. B saw the applicant on several occasions and submitted three reports.   He found that the applicant was likely to be suffering from Munchhausen by proxy, a syndrome whereby a mother imagines or actually causes illness in her child.        On 4 July 1994 a social worker filed a report recommending that a full care order be made to enable the Department to plan for a permanent adoptive family for J and on 18 July 1994 the applicant's solicitor, acting without the applicant's consent, agreed to the making of a care order.   On 20 July 1994 the applicant sought advice from new solicitors who filed an application to set aside the care order.        On 3 November 1994 the application to set aside the care order came before Judge C in the Bristol County Court.   Judge C agreed to set aside the care order and to re-fix the hearing as regards the granting of a care order under section 31 of the Children Act 1989 for 30 January 1995.        On 20 January 1995 the applicant married Mr. Stockford, J's natural father.        The hearing started on 30 January 1995 and lasted eight days. There were 441 pages of written statements and reports and 529 pages of hospital and nursing records before the court.   The court heard evidence on behalf of the Council from Dr. S, consultant Community Paediatrician, the health visitor, two nurses who had treated J, the social worker in charge of J's case and J's two foster carers.    The court also heard witnesses of the court: Dr. T, consultant Paediatric Neurologist, Dr. B, consultant psychiatrist (both of whom were originally engaged by the applicant's solicitors to be the applicant's expert witnesses) as well as witnesses for the applicant: two friends, her sister, an ambulance driver and Dr. F, consultant neurologist. Further evidence was heard from Mrs. L (the applicant's mother) and Mr. Stockford in support of their applications for care of J. Finally the guardian ad litem gave evidence. On 17 February 1995 a long and detailed judgment (47 pages) was given.        The Council argued that J had suffered and was likely to suffer significant physical harm if a care order was not made. It alleged that the applicant had caused the child to be admitted to hospital on numerous occasions either because she had exaggerated the symptoms that he was suffering or caused them by giving him overdoses of CPZ.   The applicant emphatically denied that she had exaggerated any of J's symptoms or that she had overdosed the child.   Judge C considered that she had to decide the following issues:        1.     Had the applicant fabricated or exaggerated J's symptoms ?      2.     Had the applicant overdosed J with CPZ on at least two            occasions ?      3.     If, to some extent, 1. is proved, and certainly 2. is            proved, is J suffering from significant harm ?   If he is,            is he likely so to suffer if he is returned to live with            mother ?      4.     If the criteria are satisfied should there be a care order            or a supervision order ?        Prior to the hearing Dr. T, originally the expert witness for the applicant, and Dr. S, the doctor who cared for J from December 1993 to February 1994 and acted as expert witness for the Council, agreed on the following points:        1.     that the applicant suffers from epilepsy with some pseudo-      seizures,      2.     that J may have suffered some epileptic seizures, the      description of the attacks depending on the applicant, Mrs. L,      members of family and their friends,      3.     that the symptoms of ataxia, drowsiness and vomiting are      classic symptoms of CPZ intoxication,      4.     that the records show probable overdosing on 21 October      1993 and 21 January 1994, the results of the ambulatory EEG on      26 January 1994 are consistent with overdosing of CPZ,      5.     that it is unlikely that if J had suffered fits of the      frequency and severity described by the applicant, his recovery      would have been immediate,      6.     that J had remained free of seizures for 12 months.        Evidence from Dr. T   was that he did not have any doubt that the child was intoxicated with CPZ on occasions and that it seemed to him that that intoxication must have been deliberate.        The Judge came to the following conclusions:        1.     That the applicant had exaggerated J's symptoms but that      she probably did this because she actually saw them as worse than      they in fact were.        2.     That the applicant did overdose J on at least the two      occasions alleged and that there was an inference, though   not      nearly so strong, of overdosing on other occasions in view of the      symptoms suffered by J.   That the overdosing was probably done      consciously, particularly if the applicant felt happier to have      J in hospital.        3.     That evidence of significant harm was overwhelming, stays      in hospital being responsible for developmental delay and      interrupting a young child's life leading to instability and the      tests and scans being distressing procedures for a small child.      Further, that the risk of future harm if J was returned to the      applicant was too great, taking into account the fact that J had      had tantrums and head banging fits for which the applicant must      to some extent be held responsible and that he was coming up to      a crucial age when he must finally be settled or his whole life      would be affected.        The Judge therefore made a full care order with leave to the Council to terminate, at its discretion, direct contact between J and his mother, father and grandmother, subsequent to which J would be placed for adoption whereupon direct contact with the natural family would cease.   She stated that it was in the child's best interests for J to cease seeing his natural family, including Mrs. L, because such contact would be likely to destabilise the adoption placement.        On 28 February 1995 junior counsel advised the applicant that the chances of a successful appeal were minimal as there was a great deal of uncontested medical evidence against her and the Judge had applied the law correctly.   On 21 February 1995 Mrs. L received advice to the same effect from her counsel.        On 28 February 1995 the applicant received a letter from the Council that visits by the applicant should be once per week for the first month then once per fortnight until the hearing of the application for J to be freed for adoption.   Mr. Stockford should have contact once a month.        Since April 1995 it appears that J has had two short seizures while in the care of foster parents. Dr. T and Dr. S have both been asked to comment on whether these seizures throw any doubt on their previous conclusions.   Dr. S did not consider the two episodes since April to alter his opinion that J could not have had seizures approaching the frequency and severity as originally described by the applicant.        On 19 September 1995 the Bristol Court ordered that the permission of the applicant for the purposes of the adoption of J be dispensed with and on 20 September made a freeing order in favour of the Council, whereby J was "freed" for the purposes of adoption.   b.    Relevant domestic law and practice        A care order is applied for and made under section 31 of the Children Act 1989 which provides, so far as relevant:        (1)    On the application of any local authority or      authorised person, the court may make an order-      (a)    placing the child with respect to whom the application      is made in the care of a designated local authority; or      (b)....        (2)    A Court may only make a care order or supervision      order if it is satisfied-      (a) that the child is suffering, or is likely to suffer,      significant harm; and      (b)    that harm, or likelihood of harm, is attributable to-         (i)       the care given to the child or likely to be      given to him if the order were not made, not being what it      would be reasonable to expect a parent to give to him; or         (ii)      the child's being beyond parental control.        (9)    "harm" means ill-treatment or the impairment of health      or development;            "development" means physical, intellectual, emotional,      social or behavioural development;            "health" means physical, intellectual, emotional,      social or behavioural development;            "ill-treatment" includes sexual abuse and forms of      ill-treatment which are not physical.        (10)   Where the question of whether harm suffered by a child      is significant turns on the child's health or development,      his health or development shall be compared with that which      could reasonably be expected of a similar child."   COMPLAINTS        The applicant claims that her child J has been wrongly taken out of her care and wrongly put up for adoption. She asserts strongly that she would never have harmed her child and claims that the high level of CPZ in J's blood on 21 October 1993 was due to confusion between Southmead hospital and her General Practitioner over the medication to be prescribed to her son.        She claims that on 21 January   1994 the level of CPZ in J's blood was taken by a doctor ("A") who had left the country at the time of the trial and was not therefore cross-examined. She asserts that this doctor took the CPZ levels after J was given his CPZ, not before as claimed in his statement.   She claims that when J was put into care on 26 January 1994, she was deeply shocked at the allegation that she had overdosed him as she would never have harmed her children and went to see Dr. A.   She claims Dr. A said that the high levels of CPZ on 21 October 1993 could be accounted for by the hospital since there had been a mix up over J's medication.   The applicant complains about the fact that Dr. A and the nurses involved on 21 January 1994 were not called as witnesses at the hearing on 30 January 1995.        The applicant further complains that the trial Judge only took into consideration the medical side of the case and did not consider her witnesses and in particular the evidence of her sister who was in hospital with the applicant on 21 January 1995.        She claims that because legal aid has been refused she cannot appeal again the decision.   THE LAW        The applicant complains about the taking into care of her son. Although she does not specifically invoke any of the articles of the Convention, the Commission considers that the applicant's complaints must be considered under Article 8 (Art. 8) of the Convention.        Article 8 (Art. 8) provides as relevant:        "1.    Everyone has the right to respect for his ... 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 finds that the taking of the applicant's child into care interfered with the applicant's right to respect for her family life as ensured by Article 8 para. 1 (Art. 8-1) of the Convention.   It is therefore necessary to examine whether this interference was justified under Article 8 para. 2 (Art. 8-2), for which three conditions must be satisfied: the interference must be "in accordance with the law", it must pursue one or more of the legitimate aims enumerated in paragraph 2 of Article 8 (Art. 8-2) and it must be "necessary in a democratic society" to achieve any one of those legitimate aims (Eur. Court H. R. Olsson judgment of 24 March 1988, Series A no. 130, p. 29, para. 59, referring to Eur. Court H. R. W. v. UK judgment of 8 July 1987, Series A no. 121, p. 27, para. 59).        There is no indication in the application, nor is any claim made, that the interference was not "in accordance with the law".   The Judge found that the criteria laid down in section 31 of the Children Act 1989 were fulfilled, namely that J suffered serious harm and that there was a significant risk that J would suffer harm in the future if returned to the care of the applicant. In these circumstances, the Commission finds that the decision in question was taken "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.        The Commission is furthermore of the opinion that the interference had a legitimate aim under Article 8 para. 2 (Art. 8-2) namely the interests of the child and as such must be regarded as effected 'for the protection of health or morals' and 'for the protection of the rights and freedoms of others' within the meaning of Article 8 para. 2 (Art. 8-2).        It remains to be determined whether the interference was "necessary in a democratic society" in the interests of the child. According to the established case-law of the European Court of Human Rights, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.   In determining whether an interference is "necessary in a democratic society", the Commission furthermore has to take into account the margin of appreciation left to the Contracting States, which are in principle in a better position to make an initial assessment of the necessity of a given interference (see eg. above mentioned Olsson judgment, para. 67). The Commission would observe in this context 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 in the case.        The Convention organs retain nonetheless a supervisory jurisdiction which is not limited to ascertaining whether a respondent State has exercised its discretion reasonably, carefully and in good faith.   It must determine whether the reasons adduced to justify the interference at issue are "relevant and sufficient" (see above mentioned Olsson judgment, para. 68).   A decision to take a child into care must be supported by sufficiently sound and weighty considerations since such a decision is a serious interference with the right protected under Article 8 para. 1 (Art. 8-1).   In order to determine whether in the present case the reasons can be considered   "relevant and sufficient" for the purposes of Article 8 (Art. 8), the Commission has had regard to the basis on which the court reached its decision.           The Commission notes the enormous amount of evidence before the court, the thorough and detailed consideration of that evidence in the course of an eight day hearing, including rigorous cross-examination of the witnesses for the Council and the court by leading counsel representing the applicant and the fact that expert witnesses originally intended to represent the applicant actually gave evidence that did not support her case. In particular it recalls the substantially agreed medical evidence of Dr. S and Dr. T that the applicant had overdosed J on CPZ and exaggerated his symptoms, the psychiatric evidence of Dr. B. that the applicant was suffering from Munchhausen by proxy (the inducement of illness in one's child), the careful and detailed judgment of Judge C, and the clear advice by the applicant's counsel and Mrs. L's counsel that the weight of the medical evidence was against the applicant.        The Commission recalls that as a general rule it is for the national courts to assess the credibility of witnesses and the evidence before them.   The Commission notes that the Judge did not consider the applicant a credible witness and chose rather to believe the medical evidence given by Drs. S, T, and B, which was largely against the applicant. On this basis, the Judge concluded that to return J to the applicant would involve a significant risk to J's health.   In particular, she found that the evidence of J having suffered significant harm was overwhelming, stays in hospital being responsible for developmental delay, interrupting a young child's life leading to instability and tests and scans being distressing procedures for a small child.   Further, she considered that the risk of future harm if J was returned to the applicant was too great, taking into account the fact that J had had tantrums and head banging fits for which she considered the applicant must to some extent be held responsible and that he was coming up to a crucial age when he must finally be settled or his whole life would be affected.        In the light of the above, the Commission considers that the court had sufficient evidence before it to come to the conclusion that there was a significant risk that J would suffer harm if he were returned to the applicant such that the reasons for J's removal are "relevant and sufficient" for the purposes of Article 8 (Art. 8) of the Convention.        As regards whether there were adequate procedural safeguards to ensure respect for the applicant's family life, the Commission recalls that the applicant has alleged that the failure of the court to hear Dr. A, who had left the UK by the time of the trial, and the nurses who were present on 21 January 1994, materially affected the outcome of the case.        The Commission notes that there is no evidence that the applicant's counsel tried to call Dr. A or the two nurses.   Further, the Commission recalls that the decision to take the applicant's child into public care was arrived at following thorough investigation by the Social Services and an 8 day oral hearing before the County Court.   The applicant was present at the hearing and was represented by leading and junior counsel.   The applicant had the possibility of presenting any views which in her opinion would be decisive for the outcome of the case.        In the circumstances, the Commission is of the opinion that the procedure applied has provided the applicant with the requisite protection of her interests (see above mentioned W. v. UK judgment, para. 62-63). The Commission accordingly finds that, bearing in mind the margin of appreciation accorded to the domestic authorities, the interference in the present case was justified under the terms of Article 8 para. 2 (Art. 8-2) of the Convention as being "necessary in a democratic society for the protection of health and for the protection of rights of others.        As to the applicant's complaint that she could not appeal against the judge's decision to grant a care order because she was refused legal aid, the Commission notes that she received a full hearing at first instance, where she was represented by leading and junior counsel and was able to raise any matters that she considered to be of importance and that she received legal advice from her counsel that there was little or no chance of successfully appealing the decision. In these circumstances, the Commission does not consider that a refusal to grant legal aid for an appeal against the decision of the County Court constituted a lack of respect for her family life under Article 8 (Art. 8) of the Convention.        Insofar as the refusal to grant legal aid to appeal the decision of the County Court might be considered under Article 6 (Art. 6) of the Convention, the Commission recalls that in civil matters.   Further, refusal of legal aid on grounds of no reasonable prospect of success is generally not incompatible with the provisions of the Convention (see eg. No. 9353/81 dec. 11.5.83 D.R. 33 p. 133). In light of the factors outlined above, the Commission finds no indication that the applicant was denied effective access to court in the determination of any of her civil rights as a result of the refusal of legal aid.        The Commission therefore considers the applicant's complaints fail to disclose a violation of the provisions of the Convention and the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber        (M.-T SCHOEPFER)                            (H. DANELIUS)