CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 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. 23715/94                       by S.P., D.P., and A.T.                       against the United Kingdom        The European Commission of Human Rights sitting in private   on 20 May 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              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 3 September   1993 by S.P., D.P., and A.T. against the United Kingdom and registered on 18 March 1994 under file No. 23715/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      16 February 1995 and 21 September 1995 and the observations in      reply submitted by the applicant on 7 June 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicants, two brothers and their half-brother, are British citizens born in 1983, 1984 and 1988 and are resident in Herefordshire. They are represented before the Commission by Mr. Luke Clements, a solicitor practising in Hereford.        The facts as submitted by the parties may be summarised as follows.   a.    Particular circumstances of the case        The first applicant S.P., the second applicant D.P. and their step-sister M. were made wards of court on 7 July 1986 on grounds, inter alia, that M. had been abused by her step father (S.P.'s and D.P.'s father).   R., the applicants' mother was implicated as having been present during abuse. S.P and D.P. were placed with foster parents, Mr. and Mrs. O.        The two brothers remained with   Mr. and Mrs. O. for 15 months and a strong bond of affection grew up between them.        On 1 October 1987, the brothers were returned to live with their mother R. who was living with another man, T. On 8 August 1988, A.T. (the third applicant) was born, his parents being R. and T.        The relationship between R. and T. was violent. In November 1989, R. was admitted to hospital following an attack by T. In April 1991, R. sought refuge with the children in a home for battered women.        Concern arose in the home as to the degree of neglect of the children. On 3 August 1991 the children were found at night on their own outside a pub. On 5 August 1991, R. was evicted from the home and the children taken into care by Hereford and Worcester County Council ("the Council"). They were placed with temporary foster parents.        On 6 November 1991, an interim care and control order was granted by the High Court to the Council and a psychiatric assessment ordered concerning possible rehabilitation with the mother. The assessment commenced on 17 January 1992.        On 12 February 1992, a directions appointment was heard by the Court but adjourned with the appointment of Ms. Proctor as guardian ad litem.        The psychiatric assessment was completed and received by the Social Services Department in May 1992.        The intention of the Council at this time was that the children should remain in permanent care and be returned to live with Mr. and Mrs. O., their first foster parents. The children, particularly A.T., were however becoming increasingly attached to their current foster parents as time passed.        Ms. Proctor received her instructions on 31 March 1992 and she indicated that her report could be prepared within 4 months. It was filed on 14 July 1992.        Ms. Proctor became concerned about the need to secure separate representation of the children in the proceedings. While her view was that it would not be safe to return the children to the mother, she was aware that the brothers were expressing a preference for that course. By letter dated 16 April 1992, Mr. Clements, a solicitor member of the Children's Panel, requested the Council to seek an appointments direction before the Court to secure legal representation of the children. The Council did not approach the Court until 24 June 1992. On 5 August 1992, in view of the continuing delay, Mr. Clements wrote to the Council stating it was no longer in the children's interests to receive separate representation if that would entail further delay.        In August 1992, R. ceased attending access visits with the children.        On 14 October 1992, the principal provisions of the Children Act 1991 came into force. This had the effect that children who were wards of court automatically were placed in the care of the local authority and the wardship discharged. Since the matter concerning the applicants had not been concluded by a full hearing prior to this date, the High Court proceeded on 6 October 1992 to de-ward the children on an undertaking by the Council to commence care proceedings under section 31 of the Children Act 1989. The High Court judge Mr. Justice Thorpe directed that the final hearing take place before himself on the first available date after 1 January 1993 and that Ms. Proctor file a supplementary report if necessary before 18 December 1992.        Mr. Clements was at this stage appointed solicitor to represent the children in the proceedings. By 15 December 1992, it became clear that the case had not been listed for hearing. Mr. Clements wrote to the Court expressing his concern that the listing office did not have the file and that it was imperative for the welfare of the children that they move to a permanent placement as soon as possible.        By letter of 23 December 1992, Mr. Clements again expressed his concern to the Court at the delay, given that the children had been 16 months with short term foster parents and were forming attachments that would have to be broken. At an appointment with the District Judge held the same day, the judge agreed that it was a case of inexcusable delay. He had no power to   list the case himself but stated that he would arrange to have the file sent to Mr. Justice Thorpe in London in the hope that he would arrange for a listing.        During January 1993 it became apparent that due to a structural anomaly there was no-one with apparent power to list the case (the Court in Worcester was seized with the case but it was to be heard in the Birmingham High Court who apparently were not in the position to list it).        On Mr. Clements contacting the Worcester County Court listing officer in February 1993 it became apparent that the file was lost in London and there was no-one available to list the case.        On 8 March 1993, a directions appointment was obtained before a High Court judge. R. did not attend. The judge accepted that the case had been allowed to drift along through the fault of the court but noted that there was no available court time for a hearing in the foreseeable future. He made an interim care order with a view to making a final care order to be drawn up on 19 March 1993 unless R. applied to the court for a hearing. Since R. did not so apply, the final care order was drawn up and came into effect on 19 March 1993.        Following the order, the children were placed by the Council with Mr. and Mrs O., who had maintained contact with them.        By letter dated 9 May 1995 to Mr. Clements, Mrs. O. stated, inter alia:        "I have no doubt that the uncertainty for the boys during the      time they were waiting for the move to us must have caused them      a great deal of worry. On the one hand they were seeing more of      us and having to get used to the idea of living with us and yet      not having any idea of when it would happen or even why no-one      could tell them why this was the case. They must have wondered      whether we were going to change our minds and how to behave to      please us enough so that we wouldn't do so. For children who are      used to being let down, I am sure that this must have been a fear      - a fear of looking forward to something that would perhaps never      happen.        <S.P.> is a great worrier who tries almost too hard to please.      He was certainly very concerned at all the changes...        The time they spent at the temporary carer foster home influenced      them quite strongly and they certainly changed quite a lot during      this time. We had to get used to them, as they were not the same      children we knew when they lived with us before and they had to      adapt to quite a different lifestyle which at times has been      difficult.        <A.T.> during this time was bonding to the temporary foster      mother, and then found himself not only with yet another family,      but also within one week having to start school. This was too      much for any child to cope with, though he did quite well to      begin with. After a few months, he became very difficult and      still is a great problem. He is having session with a consultant      psychologist and I hope he will be able to help with <A.T.'s>      behavioural problems. These are greatly, though not exclusively      directed at me which seems to suggest that although he wants to      become attached to a mother figure, all his past experience tells      him that this will end in rejection and loss and therefore is      something to be avoided. I do feel that if he had spent more time      at home with me before starting school we would now have a better      relationship...        Both <Mr. O.> and myself are pleased that this complaint <the      application to the Commission> is being made because of the      additional difficulties caused by the long delay. <S.P.> is aware      of these proceedings and is happy about them but the other two      boys I feel would not understand sufficiently to discuss with      them..."     b.   Relevant domestic law and practice        Section 41(1) of the Children Act 1989 provides:        "for the purpose of any specified proceedings, the Court shall      appoint a Guardian Ad Litem for the child concerned unless      satisfied that it is not necessary to do so in order to safeguard      his interests."        Rule 4.11 (2) of the Family Proceedings Rules 1991 provides:        "the Guardian Ad Litem shall...instruct the solicitor      representing the child on all matters relevant to the interests      of the child, including possibilities for appeal, arising in the      course of the proceedings."   COMPLAINTS        The applicants complain of the length of the wardship and care proceedings. They submit that the proceedings which determined their civil rights and obligations were not complicated and that the delays were imputable to the structural problems in the court system and the failure of the Council to expedite matters in the early stages. They submit that the delay affected their right to family life in that they were required to spend a prolonged period with temporary foster parents and suffered distress and uncertainty as to their future. S.P., for example, feared that he might be returned to a home where T. lived and once their mother stopped contact in August 1992 the two older boys exhibited a desperate need for assurance as to their future. D.P. was considered by Ms. Proctor to have suffered particular distress due   to the change because of his conflicting attachment   to his initial foster parents, temporary foster parents and his mother. A.T., the youngest, with the lapse of time entered the age (over 3) when attachments   are less readily engaged and he was required to change home and   family and start full time school at the same moment. A.T. had made strong attachment to the temporary foster parents and is reported to be settling with Mr. and Mrs. O. with some difficulty.        The applicants invoke Articles 6 and 8 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 3 September 1993 and registered on 18 March 1994.        On 12 October 1994, the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were received on 16 February 1995, after an extension of the time-limit fixed for that purpose.   The applicant's submissions in reply were received on 7 June 1995, also after an extension of the time-limit.   The Government submitted further observations on 21 September 1995.        On 11 April 1995, the Commission granted the applicants legal aid.     THE LAW        The applicants complain of the delay in the care proceedings which concerned their placement with their longterm foster parents.   Article 25 (Art. 25) of the Convention: validity of the application        The application has been introduced on behalf of the children by Mr. Clements, the solicitor who represented them in the child care proceedings, supported by a letter of authority by the guardian ad litem appointed by the court   to safeguard the interests of the children in the domestic proceedings.        The Government contest the validity of this exercise. They submit, inter alia, that the guardian is appointed by the court for the purposes of those proceedings only and that her role ended when the proceedings ended on 19 March 1993 with the coming into force of the final care order. Neither the solicitor nor the guardian can in their view claim any continuing right to represent the children after the end of these proceedings. If, for whatever reason, the children were to be the subject of new proceedings, the court would not necessarily appoint the same solicitor or guardian to represent them. The children could be represented before the Commission by either their mother or the local authority: Article 25 (Art. 25) cannot permit that a person without parental responsibility under United Kingdom law be able to bring an application in respect of a child where another person disagrees with the inaction of the person with parental responsiblity. The Government further dispute that Mr. Clements can rely on any indications of support made by the foster parents and one of the children 20 months after the application was introduced as a valid basis of authority to act.        The applicants' representatives argue that Article 25 (Art. 25) should be given an effective construction   in order to give children practical protection. There is authority to present the application on two possible bases. Firstly, under domestic law the guardian ad litem has competence to instruct legal representatives in respect of appeals arising in the course of proceedings affecting the children,   which it is submitted must include the making of an application to the Commission. Alternatively, Mr. Clements is acting directly in the capacity of solicitor for the children and reference is made to a letter of agreement from the children's foster parents which indicates that the older child (aged 12) supports the application.        The Commission notes the Government's argument that the competence of the guardian ad litem and solicitor to represent the children is limited under domestic law to the course of those proceedings in respect of which they have been appointed. Representation before the Convention organs however is not solely governed by considerations of domestic procedural standing. Whether or not Mr. Clements may validly represent the applicant children before the Commission will depend on examination of a number of relevant factors.        The Commission would emphasise first of all that the involvement of children is a special feature which attracts considerations not necessarily applicable where adult applicants are concerned. It observes that there has been a growing recognition of the vulnerability of children and the need to provide them with specific protection of their interests eg. the UN Convention on the Rights of the Child and the European Convention on the Exercise of Children's Rights recently opened for signature. The Commission and Court have consistently underlined that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive,   be interpreted and applied so as to make its safeguards practical and effective (eg. Eur. Court H.R. Loizidou judgment of   23 March 1995, Series A no. 310, p. 26-27 paras. 70-72). In the context of Article 25 (Art. 25),   the position of children qualifies for careful consideration: children must generally rely on other persons to present their claims and represent their interests and may not be of an age or capacity to authorise steps to be taken on their behalf in any real sense. The Commission considers that a restrictive or technical approach in this area is to be avoided.        The Commission has examined whether other or more appropriate representation exists or is available, the nature of the links between Mr. Clements and the children, the object and scope of the application introduced on their behalf and whether there are any conflicts of interest.        As regards the first element, the Commission recalls that the Government submit that the children should be represented in any application either by their natural mother or by the local authority, both of whom share parental responsibility. On a practical level however, it accepts the submission of the applicants' representatives that these options are not open to the applicants. The mother is apparently disinterested   and the local authority is the subject of criticism in the application. There is therefore no alternative source of representation in the present case which would render Mr. Clements's assumption of the role inappropriate or unnecessary.        The Commission notes that Mr. Clements acted in the child care proceedings as the solicitor appointed by the independent Guardian Ad Litem to protect the children's interests. The object of this application is limited to complaints that the proceedings in which he participated on behalf of the children did not comply procedurally with the requirements of the Convention. It is not sought to bring into issue any aspect of the substantive decisions reached as regards the children's welfare or as to the current exercise of the local authority's supervisory responsibility. The Commission has not identified any possible conflict of interest with the applicants in recognising Mr. Clements' competence to pursue these complaints before it, given that their scope is limited to procedural matters in which he was the duly authorised legal representative on the domestic level. The Commission has not attached significant weight to the expressions of support communicated by the foster parents, on their own behalf and in the name of S.P. who is twelve years old. These do not constitute authority to act in any formal sense. While S.P. may be of an age and understanding such that his views could be relevant to the existence or not of a valid application brought in his name, the Commission does not consider that in the circumstances of this case it is necessary or desirable to require or expect more than an informal indication of this kind.        The Commission concludes that the application introduced on behalf of the applicants constitutes a valid exercise of the right of individual petition guaranteed under Article 25 (Art.2 5) of   the Convention.   Substantive complaints        The applicants invoke Articles 6 para. 1 and 8 (Art. 6-1, 8) of the Convention which provide:                    Article 6 (Art. 6) of the Convention        "1.    In the determination of his civil rights and obligations or      of any criminal charge against him, everyone is entitled to a      fair and public hearing within a reasonable time by an      independent and impartial tribunal established by law."                    Article 8 (Art. 8) of the Convention        "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 Government submit that the applicants' complaints concerning the delay in the proceedings are incompatible ratione materiae with the provisions of the Convention since children cannot claim any right in English law to be cared for by a specific person. Accordingly, the care proceedings relating to the children did not determine any of their civil rights or obligations. In their view, the previous cases under Article 6 para. 1 (Art. 6-1) principally concerned parental rights under domestic law.        The Government have made no submissions as regards the applicants' complaints that the delay in the care proceedings violated their right to respect for their family life. They reserve the right to make further submissions on the merits.        The applicants contend that the Government's submission that children's rights are not determined in child care proceedings is a very narrow and technical construction   of the concept of civil rights which is inconsistent with protection of children's interests under domestic law, the Convention and the UN Convention on the Rights of the Child.    They submit that having regard to the importance of what was at stake for them, the lack of complexity of the case and the failure to give any explanation for failure to hear the case earlier the delays which occurred exceeded a reasonable time.        The applicants emphasise the adverse impact suffered by them due to the delay, the uncertainty and worry as to their future, which they submit interfered unjustifiably with their right to respect for their family life.        The Commission has had regard to the submissions of the parties. It finds that the application raises serious issues the determination of which should depend on examination of the merits. The applicants' complaints cannot therefore be declared 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, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits.   Secretary to the Commission             President of the Commission         (H.C. KRÜGER)                             (S. TRECHSEL)