CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.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. 36937/97                       by Mary MALLARD                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 February 1997 by Mary MALLARD against the United Kingdom and registered on 18 July 1997 under file No. 36937/97;        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 1963 and currently resident in Poole, Dorset. She is unrepresented.        The facts as submitted by the applicant can be summarised as follows   A.    Particular circumstances of the case        The applicant is the mother of 3 boys: J, born in 1989; D, born in 1991 and A, born in 1993. J has a different father to D and A. The applicant has never been married and neither father has ever had parental responsibility.        Social services became involved with the family in 1989 because of the applicant's severe drinking problems. She is an alcoholic and was identified as being an excellent mother when sober but unable to protect the children from harm when drunk. After J's birth in 1989 the applicant was found drunk in public places on several occasions. Due to concern for J's well-being care proceedings were initiated and J was removed from the applicant's care. The applicant then agreed to counselling and treatment for her drinking and after improvement was shown J was returned to her care in Spring 1990 subject to a two year supervision order.        Further serious drink related incidents occurred in 1992 and 1993. Care proceedings were initiated in 1993 resulting in the children being subject to interim care orders. The children remained at home with the applicant with considerable assistance from the local authority. A, the youngest child, was made the subject of an interim care order immediately after his birth in 1993. The applicant again agreed to treatment which appeared to be very successful. The guardian ad litem was therefore able to recommend supervision orders for all three children and these were made in late 1993.        Further problems were experienced in late 1994 leading the children to be taken into foster care in December 1994 subject to interim care orders. The children have remained in foster care since December 1994 and have had 18 different foster placements. Full care orders were made in favour of Dorset County Council in March 1995 which the guardian ad litem supported and which the applicant did not oppose. However, she did oppose the care plan for adoption. A couple was under assessment in 1995 as prospective adopters of the children but this assessment was terminated apparently because of the applicant's objections.        The applicant has attempted to overcome her drinking problems on several occasions. In 1990 she attended the "Hannah project" where she did not drink. However, after leaving the project she relapsed into drinking within a month, leading J to be taken from her care. In September 1994 she attended the Sedman unit but suffered three relapses into drinking.        The application for a freeing order was initially heard by the Bournemouth county court in August 1995 when it was adjourned pending reports on the applicant's progress with addiction therapy and investigation into the causes of her alcoholism. In his report dated 14 August 1995 the guardian ad litem felt that if there was no clinical reason, like pre-menstrual syndrome, for the applicant's condition then he would have to recommend that the children's best interests lay with a permanent substitute family.        The applicant attended treatment at Broadway Lodge from August 1995 until October 1995. Her discharge reports were encouraging. She also enjoyed structured contact with each child. By February 1996, as noted by the guardian ad litem in his report of 12 February 1996, it appears that the local authority were hopeful about the future and even considered withdrawing the application for a freeing order. However, it appears that in the same month the applicant had a relapse which she said was caused by an alleged anal rape carried out on her by her employer in early February 1996. The applicant states that she was open with social services about her relapse.        The final hearing took place in August 1996 in Bournemouth county court before Her Honour Judge McKinney where the applicant was represented. A transcript of the judgment is included in the application papers but is undated. The court considered the history of the applicant's drinking problems which was marked by periods of sobriety followed by relapses and attention seeking behaviour. However, the applicant and her parents stated that the applicant was working hard to overcome her drinking problems. There were also psychiatric reports from two consultant doctors before the court, which reviewed the history of relapses by the applicant but made reference to signs of some positive changes, including the applicant's recognition that she is an alcoholic and requires treatment.        In his fifth report dated 26 June 1996 the guardian ad litem said that, in light of the complex and conflicting evidence in respect of whether or not the applicant had reverted to drinking, he was unable to give a clear view as to whether or not the freeing order should be made. However, he did feel that a decision should be made about the children's future sooner rather than later. Additionally, he stated that the court's finding regarding the rape allegation would be of considerable importance.        In respect of the rape allegation the judge found that the appellant's evidence was confused. The rape was denied by the alleged perpetrator and the court found that the applicant's allegations were unfounded and an excuse for her relapse into drinking.        Judge McKinney found that the applicant was unable to put the children's needs first because of her alcoholism. The children were unsettled and although they loved their mother, needed the stability of adoption. J wished to stay with his mother as did D to a lesser extent. Judge McKinney found that adoption would be in the best interests of all three children and that, on an objective test, the applicant was withholding her consent unreasonably. The judge therefore made freeing orders on 23 August 1996 dispensing with the applicant's consent to adoption and giving leave to the local authority to terminate contact.        The applicant, acting in person, attempted to seek an extension of time to appeal the order of HHJ McKinney. Her application was refused by the Court of Appeal on 17 December 1996.        The children remain in short term foster care. The applicant states that she no longer drinks alcohol. She has contact with the children once every two months and claims that they wish to return to live with her. Ultimately she would like the children to be rehabilitated to her but is prepared for this to happen gradually.   B.    Relevant domestic law        Section 6 of the Adoption Act 1976 states:        "In reaching any decision relating to the adoption of a child a      court shall have regard to all the circumstances, first      consideration being given to the need to safeguard and promote      the welfare of the child throughout his childhood; and shall so      far as practicable ascertain the wishes and feelings of the child      regarding the decision and give due consideration to them, having      regard to his age and understanding."        Section 16 of the Adoption Act 1976 states:        "(1) An adoption order shall not be made unless -      ...            (b)    in the case of each parent or guardian of the child            the    court is satisfied that -            ...            (ii)   his agreement to the making of the adoption order            should be dispensed with on a ground specified in            subsection (2)        (2)    The grounds mentioned in subsection (1)(b)(ii) are that the            parent or guardian            ...            (b)    is withholding his consent unreasonably."        Section 20 of the Adoption Act 1976 states:        "(1)   The former parent, at any time more than 12 months after the            making of the order under section 18 when            (a)    no adoption order has been made in respect of the            child and            (b)    the child does not have his home with a person with            whom he has been placed for adoption              may apply to the court which made the order for a further            order revoking it on the ground that he wishes to resume            parental responsibility        (2)    While the application is pending the adoption agency having            parental responsibility shall not place the child for            adoption without the leave of the court        (3)    The revocation of an order under section 18("a section 18            order")operates            (a)    to extinguish the parental responsibility given to the                  adoption agency under the section 18 order              (b)    to give parental responsibility for the child to            (i)    the child's mother;            (ii)   and where the child's father and mother were married                  to each other at the time of his birth the father        (3)(A)       Subject to subsection (3)(c) the revocation does not            (a)    operate to revive            (i)    any order under the Children Act 1989 or            (ii)   any duty referred to in section 12(3)(b);            extinguished by the making of the section 18 order        (4)    Subject to subsection 5 if the application is dismissed on            the ground that to allow it would contravene the principle                  embodied in section 6            (a)    the former parent who made the application shall not                  be entitled to make any further application under                  subsection (1)in respect of the child and            (b)    the adoption agency is released from the duty of                  complying further with section 19(3) as respects that                  parent        (5)    Subsection (4)(a) shall not apply where the court which            dismissed the application gives leave to the former parent            to make a further application under subsection (1), but            such leave shall not be given unless it appears to the            court that because of a change in circumstances or for any            other reason it is proper to allow the application to be            made."        In re G (A Minor)(Adoption:Freeing order),[1995] 2AER 534, the House of Lords held that although the revocation of a freeing order gave the mother full and unfettered parental responsibility this could be allied with the provisions under the Children Act 1989 so that if the parent could not offer a home herself the welfare of the child could be protected by making the revocation conditional upon such consequential orders as were appropriate under the Children Act 1989 including a care order pursuant to section 31 Children Act 1989.     COMPLAINTS        The applicant invokes Article 8 of the Convention, complaining in particular that the local authority did not act in the best interests of the children and did not give sufficient weight to their views. She wishes to prevent the adoption of her children.     THE LAW        The applicant complains of decisions taken in respect of freeing her children for adoption. She invokes Article 8 (Art. 8) of the Convention, which provides that:        "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."        It is clear that the order freeing the applicant's children for adoption represents an interference with the applicant's right to family life as ensured by Article 8 para. 1 (Art. 8-1) of the Convention. The interference must therefore be considered within the ambit of Article 8 para. 2 (Art. 8-2) to ascertain whether or not the interference was "in accordance with the law", "necessary in a democratic society" and pursues the aims listed in paragraph 2 of Article 8 (Art. 8) (eg. Eur. Court HR, W. v. the United Kingdom judgment of 8 July 1987, Series A no. 130, para. 60).        There is no suggestion that the decision made by Her Honour Judge McKinney was not in accordance with the law. The judge applied the principles set out in section 6 of the Adoption Act 1976 and found that, bearing in mind their own wishes, adoption would be in the best interests of the children. Additionally, applying the objective test of reasonableness, as dictated by case law, the judge found that the applicant was withholding her consent unreasonably.        The Commission is also of the opinion having regard to the court's judgment that the interference had the legitimate aim required under Article 8 para. 2 (Art. 8-2), namely the interests of the children, and as such, may be regarded as having been effected for "the protection of health or morals" or for the "protection of the rights and freedoms of others".        In respect of whether or not the interference was necessary in a democratic society, the Commission recalls that each Contracting State must be permitted a margin of appreciation in determining whether or not a particular action is necessary (eg. Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, para. 67).        The Commission does, however, retain the jurisdiction to enquire as to whether the interference is based upon "sufficient and relevant reasons" (eg. Eur. Court HR, Olsson v. Sweden judgment, op. cit., para. 68). It is clear that the decision to remove the children from the care of their mother permanently was a difficult one to make. The reports of the guardian ad litem and two consultant psychiatrists reveal considerable sympathy towards the applicant's difficulties. Additionally, the local authority had worked assiduously with the applicant from 1989 onwards, providing several treatment programmes to deal with her alcoholism. However, despite the assistance given to the applicant and the sporadic improvements she made, the court felt that bearing in mind the history of the case, the applicant would be unable to sustain the improvement in the long term or prioritise the interests of the children.        The applicant has complained that the views of the children had not been listened to sufficiently. The Commission notes first, that the children were aged 7, 4 and 3 respectively when the freeing order was made and thus their views would inevitably carry less weight and secondly, that the guardian ad litem produced no fewer than five reports regarding the welfare of the children. In addition, it was accepted by all involved with the case that the children loved the applicant and would wish to live with her if she could provide a stable environment. However, the court concluded that she would be unable to provide such an environment.        The Commission has also considered whether the manner in which the court came to make the freeing order appears to reveal any evidence of unfairness or procedural irregularity (eg. Eur. Court HR, W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121 paras. 62-64). The applicant was represented throughout the hearing and was able to test the evidence brought against her. The applicant complains that the case was excessively focussed on herself rather than her children. However, the Commission notes that the central issue in the case was whether or not the applicant would be able to overcome her alcoholism sufficiently to provide a safe and secure home for her children. The reason for her relapse into drinking in February 1996, which the applicant attributed to a serious sexual assault, was of crucial importance, as was recognised, in particular, by the guardian ad litem. Consequently, there appears to be no evidence of procedural irregularity or unfairness in respect of the manner in which the court came to its decision.        In cases involving the removal of children from their natural parents, the Commission must examine carefully the authorities' attempts at rehabilitation, pursuant to the case of Johansen v. Norway, (Eur. Court HR, judgment of 7 August 1996, Reports 1996-III no. 13). In this instance it appears that very considerable attempts were made to keep the family intact. Social services had worked extensively with the family since 1989 with the aim of keeping the family together. Indeed, in his report of 12 February 1996, the guardian ad litem noted that the local authority believed that, at that stage, prior to the applicant's relapse into drinking prompted by the alleged sexual assault, there was scope for consideration of rehabilitation of the children with their mother. In his reports the guardian ad litem concluded that the local authority had done everything which it could do to encourage rehabilitation.        The Commission also notes that procedural safeguards are provided by the fact that the applicant now appears to be entitled to apply for a revocation of the care order pursuant to the case of re G (A Minor)(Adoption:Freeing order)[1995] 2AER 534. The applicant states that she is continuing to make progress in respect of her alcoholism and has maintained contact with her children. Given the lack of success in finding prospective adopters for three brothers, it would appear that the possibility of rehabilitation with the applicant remains open.        Consequently, the Commission finds that, bearing in mind the margin of appreciation afforded to Contracting States, the interference in this case may be regarded as necessary in a democratic society for the protection of rights of others, namely the children of the applicant. It therefore follows that the application must be regarded as manifestly ill-founded pursuant to Article 27 paragraph 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE           M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber