CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 décembre 2004

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Casadevall , President ,   Sir   Nicolas Bratza ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   J. Borrego Borrego ,   Mr   J. Šikuta, judges , and Mr M. O'Boyle , Section Registrar , Having regard to the above application lodged on 2 May 2003, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:               THE FACTS The applicant is a British citizen born in 1957 and resident in Plymouth. He is represented before the Court by Ms H. Herns, a solicitor practising in Plymouth. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant cohabited with S. (the “mother”), who had two children from other relationships: AD born in 1985 and A. born in 1993. A.'s father had died and the applicant always treated her as if she was his natural child. He and the mother had two children together: N. born in 1994 and Z. born in 1998. The family had a long history of social work involvement from 1995. These concerns centred on the mother's mental health (she was diagnosed as having a bipolar disorder), the chaotic, disorganised state of the home; the parents' inability adequately to provide consistent care in light of these factors; and the parents' inability to co-operate with professionals. Initial intervention In October 1995, Emergency Protection Orders were granted at a time when the mother was admitted to a psychiatric hospital. All three children went to stay with a relative and then A. and N. were moved to foster care. Devon County Council (“DCC”) carried out various assessments, including obtaining a consultant psychiatrist's opinion and the children were returned home. At the beginning of 1996, the applicant was sent to prison for offences of dishonesty and possession of amphetamines and served 12 months of a two year sentence. On 6 August 1996, DCC obtained Supervision Orders in respect of the children. The situation was unsettled and difficult with the mother failing to co-operate and the family changing address several times. In March 1997 the mother was admitted to a psychiatric hospital for a month. On her discharge, A. and N. came home while AD remained with her grandmother. In May 1997, DCC renewed the Supervision Orders. In August 1997, Cornwall County Council (“CCC”) became involved as the family was now resident in Cornwall. The applicant was then released from prison and returned home. On 17 October 1997, the Supervision Orders in respect of the children were further extended. On 23 January 1998, CCC obtained Interim Care Orders in respect of A. and N. An extremely lengthy assessment of the parents was carried out, including expert reports from Dr McGaw, Consultant Clinical Psychologist, Dr Redding, Consultant Child and Family Psychiatrist and Dr Hand, Consultant Psychiatrist on behalf of the mother. While the three experts did not consider it was appropriate to remove the children from the parents, it was found that A. was an emotionally and behaviourally damaged child, caught up in her mother's delusions and both A. and N. were suffering from developmental delay. In September 1998, Z. was born. The Care Plan and Final Care Order In March 1999, the hearing on the final care order application took place. On the first day, after considerable discussion, the parties reached agreement. “Amended Threshold Criteria” were admitted by the parents as providing the necessary basis in domestic law for implementing care measures to protect the children from harm. The Care Plan was also amended. It included a Contingency Plan indicating that the local authority would assess the applicant as sole carer if the mother became unavailable to parent the children. In the section “Arrangements for ending placement” it was added that “save in emergency the children would not be moved until a Core Group Meeting had been convened”. A considerable package of support was included in the plan: social workers to visit the family twice weekly to work on parenting issues and support children; family aide to visit weekly to take out A. and N.; community psychiatric nurse to visit twice weekly; local authority to assist with transport to school; N.'s referral to speech therapy to be followed up; A. to be offered therapy at a children's home; N. to be offered direct work with social worker as part of family therapy; health visitor to visit weekly and Core Group meetings to take place at six weeks intervals to review situation and adjust programme of support as necessary. The applicant alleges that this promised support was not in fact available, or that it became unavailable as time passed. On 8 March 1999, Care Orders were made in respect of all three children. The hearing was not contested as the Care Plan now provided for the children to stay at home. A Parental Responsibility Order to the applicant was made in respect of N. and Z. on recommendation of Dr Redding as he was “... the more containing parent”. Three months later, the family returned to Plymouth in Devon. There followed a disturbed period during which the family lived in temporary accommodation. The children were twice removed into foster care, on both occasions when the mother was being detained for assessment under the Mental Health Act. On 18 October 1999, the family moved into a permanent address. On 4 November 1999, the children returned home. A period of stability followed as acknowledged in the local authority reviews. In September 2000, the mother gave birth to a stillborn child, G. In November 2000, at the local authority review, it was reported that the children were doing well at school with 100% attendance and while the applicant's wish for the care order to be discharged was not appropriate at that time, it was to be given “serious consideration ... if the current, recent level of progress particularly in respect of the children's education is maintained.” In January 2001, the mother was admitted to a psychiatric unit for a short period after an incident in which she had taken amphetamines, allegedly, injected by the applicant. In March 2001, the local authority review noted no health or school attendance concerns for the children. A new social worker was to be nominated to look into the possible discharge of the care orders. On 9 July 2001, the mother and children were recorded as being provided with emergency bed and breakfast following a domestic violence incident. Ms S. was appointed as the family social worker on 3 August 2001. There had been none for the previous six months. On 4 September 2001, Ms S. first visited the family. The mother was presenting as “manic” that day and accused the applicant of sexual abuse of Z. After investigation, it was accepted that these allegations were groundless. However in the applicant's view the local authority continued to believe that the children were at risk of sexual abuse. On 20 September 2001, at a review, Ms S. stated that she could not support the parents' request to discharge the Care Orders. She took up the concern whether it was safe to leave the children in their parents' care any longer. Her concern was based on the state of the family home and the mother's mental health. The parents' case was that Ms S. overstated the problems. On 8 November 2001, the children were removed. No Core Group meeting took place prior to removal as had been set out in the Care Plan. The mother, who was ill, and the applicant, who was struggling to cope, did not disagree that the situation justified temporary respite care. The freeing for adoption application and procedures On 29 November 2001, there was a Planning Meeting. Ms S.'s report concluded that the local authority had to consider the long term needs of the children in the context of long term care. The parents separated temporarily at this time. They were permitted contact which did not go well. The mother was ill and caused the children anxiety and while the applicant handled contact well, he was unable to distance the children from the effects of the mother's illness. Contact visits were also not regularly attended. On 8 January 2002, a Permanency Planning Meeting was held by the local authority to which the parents were deliberately not invited. This omission had already been found to breach Article 8 in a previous case involving the local authority and subsequently found by the domestic court to breach the parents' rights in this case. At this meeting, the plan for adoption of the three children was made. On 20 March 2002, the mother applied to discharge the Care Orders. The applicant later made the same application. On 17 April 2002, the Adoption Panel recommended adoption as being in the children's best interests. On 13 May 2002, CCC made an application to the court for authority to refuse contact between the children and parents. On 17 May 2002, Mrs B. was appointed guardian of the children. She had been involved in the previous proceedings and knew the family well. On 23 May 2002, the court made an order permitting refusal of contact between the mother and the children, based on her disruptive influence during periods of illness. The same day, Mrs B.'s appointment as guardian was terminated as, apparently, CAFCASS (Children and Family Court Advisory Support Service) wanted to appoint a guardian from within the administrative area concerned (Cornwall). On 29 May 2002, Mr H. was appointed. He was not able at any stage to see the children with either parent. He was to be absent for the final three days of the hearing. Dr Gay, the Consultant Child Psychiatrist appointed by the court to report on the emotional needs and attachment of the children, was also not able to see the children with their parents. As a result, Mrs B. was called to give evidence by the applicant at the final hearing. In August 2002, the applicant's contact was terminated after CCC made a further application to refuse contact, based on the fact that the applicant had taken a letter from the mother to N. This application was adjourned by the court to be dealt with at the final hearing which was brought forward to October 2002. No contact was allowed meanwhile. On 24 September 2002, the applicant made application under the Human Rights Act 1998 seeking orders to direct CCC to return the children home under the Care Order. This was adjourned to the final hearing. On 27 September 2002, the case was transferred to the High Court. CCC made application for orders to free the children for adoption if the parents' applications to discharge the care orders failed. It claimed that it had found prospective adopters approved by the Adoption Panel on 1 May 2002. On 29 November 2002, after an eight day hearing, the High Court dismissed the application for discharge of the Care Orders, dismissed the applicant's application under the Human Rights Act 1998 and granted CCC authority to terminate contact with the applicant. It also granted the applications to free the children for adoption. CCC had produced the Schedule II report, only after the parents' counsel had finished their closing submissions. The judge refused to disclose to counsel an anonymised version of the completed section on the adoptive parents which was seen by himself and the guardian only. The guardian had previously refrained from giving approval to the freeing application but did so after reading the full text of the report. The judge found inter alia : “I am quite satisfied that it was necessary for Cornwall to act as they did. It is true that the children were not facing life-threatening danger but it was clearly time for the children to be moved from a chaotic home situation, where their needs were not being met, while an assessment took place. ... I am quite satisfied that initially Cornwall's plan was to provide respite care. [Ms   A.] was subjected to a good deal of criticism that the local authority moved almost immediately to the present care plan, namely adoption, but I do not accept this. True it is that in [her] report to the planning meeting she concluded by saying that '... the local authority must consider the long term needs of the children in the context of a placement outside the family' but this was no more than a glimpse of the obvious if the parents did not change. The local authority are also criticised for not implementing the care plan as envisaged; there had been no core group meetings for some time, there had been no core group meeting prior to removal and [the applicant] was not assessed as a sole carer, again prior to removal. The short answer to that is that I am quite satisfied that the local authority were entitled in all the circumstances to treat the situation which confronted them on 7.11.01 as an emergency requiring prompt and decisive action. Moreover since it was an emergency and since the father had ... refused to cooperate with [Ms A.] the situation did not admit of any further assessment at that stage. ... I do accept that there had been no core group meetings organised. This was Cornwall's responsibility and they clearly and lamentably failed to comply with that part of the plan. This is part of a wider failure in my judgment to manage these care orders in a way that safeguarded the best interests of the children. ... The next stage in the planning process was LAC review meeting held on 13.12.01. This was the first such meeting the parents had attended for some time. Numerous concerns were expressed about the children; the state of N.'s teeth; A.'s confusion ... described in fact as a 'very sad and confused little person'; N.'s continued incontinence and soiling; Z.s lack of boundaries and delayed speech. It is right to balance that picture with the positives: Z. is described by the foster carers as a happy contented child, N. had settled well in school and the 3 children were described as a close family unit ... At some point during a recess in this review meeting [AD] is described by [Ms   A.] as sharing her ... concern that the children should not return to their mother, she apparently went on to describe how [the applicant] would inject her mother with amphetamines... I understand that [AD] has since retracted or denied that she ever said this, but I am however quite satisfied that [AD] did say that to [Ms A.]. The conclusion of the review was that 'the children should be looked after outside the family on a permanent basis which will need to be agreed by a permanence planning meeting'. Such a meeting was held by Cornwall on 8.1.02. The parents were deliberately and as a matter of policy not invited ... I am quite satisfied that the parents were wrongly not invited to the meeting ... I find that in failing to invite them the parents were excluded from the decision-making process (looked at as a whole) and [this] was in breach of their Art. 6 and Art. 8 rights. It is of course another matter whether I should in those circumstances accede to the father's application and provide him with the remedies he seeks ... ... In the light of all the evidence I have heard I have reached the clear and firm conclusion that these children cannot return to the care of their parents or either of them ... I am in no doubt that what these children need is a permanent stable and caring home with parents who can meet their needs, not just for a number of months interspersed with breakdown and trauma, but permanently for the rest of their childhoods. ... if any of these children were to return to the parents' care they would ... almost certainly suffer significant emotional harm. The parents simply cannot be relied upon to provide consistent good enough parenting on a long term basis. Each ... for different reasons lacks the necessary insight into how their behaviour could affect the children. I have no confidence that the parents can deliver such good enough parenting even with the most intensive support package round them. The risk is far too high that the mother will suffer further relapses in her mental health or abuse amphetamines ... The father even disputes that the children have suffered any emotional or physical neglect over the years which in my judgment betrays an appalling lack of insight ... I reach the same conclusion so far as the father's application for sole care is concerned. There are almost more problems with this ... I do not accept that they would separate. They are not separate now ... But even if it happened and the mother lived elsewhere the potential for disruption from her is enormous... and the likelihood of him being able to provide consistent good enough parenting for these 3 children ... is remote. He has never done it in the past for any length of time and I simply do not accept that he could do it in the future and in reaching that conclusion I am mindful of the father's inconsistencies over contact and his failure to address the concerns about the home by the time of the guardian's first visit. I reject [the] submission that the father has not been properly assessed; I have referred to [Ms A.'s] assessment and ... that of Dr Gay but in addition a hearing such as has taken place before me is in my judgment an assessment of every possibility. ... the remedies sought by the parents would in my judgment be most unjust to the children and completely inappropriate. In my judgment Cornwall was right to change the care plans for these children because the situation had clearly been reached by November 2001 where it was no longer in their best interests to remain in their parents' care. I approve the new care plans - in my judgment adoption is far the best way of achieving permanence for them. No professional in this case favoured long term fostering ... I am well aware that such a plan is an interference with the Art. 8 rights of the parents and I am mindful of Cornwall's duty to make a serious sustained effort to facilitate family reunification, however in my judgment Cornwall's duty must be viewed over a much longer time scale than simply since November 2001; furthermore it seems to me on all the evidence I have heard that to make such efforts to facilitate family reunification after November 2001 could well have violated the children's Art. 8 rights. ... I am quite satisfied that if the children are to thrive in an adoptive home they cannot have ongoing direct contact to the parents. There are just too many risks here all identified clearly by the evidence; the danger is that contact to the parents might not only be disruptive and traumatic in itself ... but also it might served to undermine the children's ability to thrive and have confidence in their adoptive home. Indirect contact is another matter ... I leave all that to Cornwall to arrange in the best interests of the children ... I turn now to the freeing application and I am in no doubt ... that adoption is overwhelmingly and urgently in the best interests of all 3 children; as Dr Gay said they need to be kept together and in a secure and stable placement. A. and N. as damaged children will clearly benefit from skilled and sensitive parenting; I am quite satisfied moreover that A. is desperate for such a home and does not want to return to all the uncertainties and inconsistencies of care that she experienced with her parents. ... such a placement can for all 3 children best be provided by adoption. The alternative possibility that of long term fostering is in my judgment a very poor second best. It cannot necessarily provide permanence and the children would remain in the care system ...” The judge refused leave to appeal. On 2 December 2002, the applicant applied to the Court of Appeal for permission to appeal. Permission was refused. After an oral hearing on 5 December 2002, the renewed application was refused. On 9 December 2002, the mother made an application for goodbye contact, refused by the High Court on 18 December 2002. CCC however assured the parents that arrangements would be made for a video to be made of the parents for the children and vice versa. No videos were prepared or received. The parents were told that the children were introduced to the prospective adopters on 7 December 2002 and placed in the adoptive home on 20 December 2002. On 18 December 2002, the applicant and the mother separated. Subsequent events On 5 March 2003 CCC informed the applicant that the placement broke down on 15 January 2003. The children were transferred to new foster carers. On 25 March 2003, CCC informed the applicant that they were pursuing another adoptive placement. On 24 April 2003, the CCC held a “Looked After Children” review to which neither the applicant nor the mother were invited. On 20 June 2003, a case consultation concerning the children was held. A social worker had now been allocated to them as from 10 June. The meeting identified the foster placement as stable and the children well placed. The children had however been making complaints in particular about the foster carers arguing a lot. On 8 May 2003, the applicant made an application to the High Court invoking the inherent jurisdiction. The children automatically became wards of court. On 18 June 2003, the High Court judge discharged the wardship and adjourned the application for contact. The parents were later directed to apply for permission to apply for contact in independently constituted proceedings. On 8 July 2003, the High Court granted permission to the guardian to apply for a parenting assessment of the applicant and the mother to be undertaken by an independent social worker, Ms T. The CCC opposed this measure. On 26 August 2003, the applicant applied for permission to apply for contact. On 24 September 2003, Ms T. reported to the court, recommending contact between the children and both parents. She noted that the children expressed a desire for contact with their birth family and considered that the parents had genuinely separated. She disclosed that the children's names had been changed and expressed grave concerns as to the effect on their identity and self-esteem and the fact that they were now placed in a position of having to use two names. She expressed particular concern at the use of the name of a sibling, G., that had died stillborn in September 2000. It appears that the children's first names were changed one day after their placement with the prospective adopters. The applicant applied for discovery of the files held by CCC as adoption agency but this was adjourned and finally refused on 5 March 2004 although discovery of the social work running records were ordered. On 10 November 2003, the applicant was granted permission to apply for contact. On 1 December 2003, the applicant issued an application to revoke the freeing orders, as one year had now expired from the date the orders were made and such application was now possible. By statement dated 8 December 2003, the manager of the adoption unit gave some explanation of the breakdown of the adoption placement, referring to the serious illness of a close relative of the adoptive father, difficulties in coping with the children's behaviour and sibling rivalry, that the prospective adoptive father indicated that he did not feel their home felt like their own any more, that both felt that they had taken on more than they had anticipated and in particular that the prospective adoptive father expressed the view that he could see no future with the children. On 12 December 2003, the court ordered direct contact to take place on three occasions. The applicant was granted permission to apply for residence orders. On 17 December 2003, the first contact visit took place, the first since the summer of 2002. On 19 December 2003, social workers interviewed the current foster carers with a view to possible adoption. It was proposed that they be assessed as prospective adopters and if approved that the children be officially placed with them. However, on 12 January 2004, the foster carers separated. This was disclosed through the children's interviews with the consultant psychiatrist instructed to prepare a report for the court proceedings which was issued on 20 January 2004. On 16 February 2004, the applicant issued an application for a residence order. On 5 March 2004, the High Court ordered five further sessions of contact and limited discovery. On 25 May 2004, the CCC issued their care plan which recommended rehabilitation to the applicant after an assessment at a short term residential establishment run by the CCC known as the “Bungalow”. On 8 June 2004, the High Court judge ruled on outstanding applications. The orders freeing for adoption were revoked by consent; an interim care order was made in favour of CCC with a care plan that the applicant and the children attend the Bungalow for a period of 4-6 weeks before full rehabilitation, returning to the applicant's home before the school term commenced. There was to be a review by the Court in December 2004. The judge based his judgment on the change of circumstances since November 2002 and the present consensus of the experts and professionals in favour of a return of the children to the care of the applicant, with contact for the mother. The notes of the judgment stated inter alia : “The Father, I agree, is an impressive man and his commitment to the children is unswerving. He was not deflected from his determination to resume care, even from the time the three freeing orders were made. I have a profound respect for him, and his love is without question and I make no criticism of him whatsoever.” The applicant has made a claim for damages before the domestic courts for separation from the children which he states that he will pursue if and when the children return home. B.     Relevant domestic aw and practice Care orders Under section 31 of the Children Act 1989 (“the 1989 Act”), on the application of any local authority or authorised person, the court may make an order placing the child in the care of a designated local authority (“a care order”). The preconditions under section 31(2) are that the court must be satisfied that the child is suffering, or likely to suffer, significant harm; and that the harm is attributable to the care given, or likely to be given, not being what it would be reasonable to expect a parent to give. There is no power under the Act for a care order to be made on terms, or accompanied by directions, whether in accordance with a care plan or otherwise. A care plan may be discharged (section 39(1)) or substituted by a supervision order (section 39(4)). An interim care order may be made under section 38(1) which lasts for eight weeks initially and if renewed for four weeks. According to Lord Nicholls in Re: S; Re: W (cited below), the scope for the granting of interim care orders is as a temporary “holding” measure where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to the planning and deciding the future. An interim care order is not a means of exercising a supervisory role over the local authority's implementation of its care plan but gives the court sufficient flexibility to defer making a final order until satisfied that the way ahead is no longer obscured by an uncertainty that is neither inevitable nor chronic. In deciding whether to make a care order, the court must have before it the details of the local authority's proposed care plan. This is to be put on a statutory footing by new legislation. Section 121 of the Adoption and Children Act 2002 “the 2002 Act” will insert a new section 31A in the Act requiring a care plan to be prepared by the local authority for the purposes of any application which may result in the making of an order. According to the Government, this was expected to come into force in September 2004. Once a care order has been made, a court retains jurisdiction over two aspects: (1)             under section 34, the local authority must allow the child reasonable contact with his parents and the court can adjudicate on any dispute as to what is reasonable contact or to vary or discharge any contact order; (2)             the court may entertain an application by the local authority, parent or child, to discharge the care order or substitute some other order for example, a supervision order.   As concerns the ability to challenge the failure of a local authority to fulfil the terms of a care plan, the House of Lords ruled on the issue in its judgment of 14 March 2002 ( Re S (Minors) Care Order: Implementation of Care Plan) and Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 1 FLR 815; hereinafter “ Re S; Re W ”). The headnote of the reported case summarised the judgment as follows: “(1)     Parliament had set out its clear intention in the Children Act 1989 that once a care order had been made, the responsibility for the child's care thereafter lay with the authority, not with the courts, and the courts were not empowered to intervene. The division of responsibility was a cardinal principle of the Act. The introduction of a system which gave the court a supervisory role following the making of a care order went beyond the bounds of the court's judicial jurisdiction because it involved a substantial departure from one of the cardinal principles of the Act. Section 3 of the Human Rights Act 1998 required primary legislation to be read and given effect in a way compatible with Convention rights, so far as was possible, but the judicial innovation of starred milestones passed well beyond the boundary of interpretation and would constitute amendment. The starring system could not be seen as a mere judicial remedy for victims of actual or proposed unlawful conduct by local authorities entrusted with the care of children, justified by ss 7 and 8 of the 1998 Act, as the proposed system would impose obligations on authorities in circumstances where there had been no finding of unlawful conduct and, indeed, no breach or proposed breach of the Convention ... (2)     The Children Act 1989 was not itself incompatible with or inconsistent with Art.   8 of the Convention. Infringement of the right to respect for family and private life was only likely to arise if a local authority failed properly to discharge its responsibilities under the Children Act 1989; those responsibilities were not themselves an infringement of rights under Art. 8. It might be that there was a failure to provide an effective remedy against local authority infringements of rights under Art 8, as while parents would have an effective remedy in the judicial review process or through proceedings under s 7 of the Human Rights Act 1998, in practice a child with no parent to act for them might not always have such a remedy, but that was not in itself an infringement of Art. 8. Under the Convention, failure to provide an effective remedy for infringement of a Convention right was an infringement of Art.   13, but Art. 13 was not a Convention right under the Human Rights Act 1998. Therefore, legislation which failed to provide an effective remedy for infringement of Art. 8 was not, for that reason, incompatible with a Convention right within the meaning of the Human Rights Act 1998 ... (3)     Circumstances might perhaps arise in which English law relating to some decisions by local authorities concerning care of children would not satisfy the requirements of Art. 6(1) ... The failure to provide access to a court as guaranteed by Art. 6(1) meant that English law might be incompatible with Art. 6(1), but the absence of such a provision from a particular statute did not mean that the statute itself was incompatible with Art. 6(1). The absence in the Children Act 1989 of effective machinery for protecting the civil rights of young children with no parent or guardian was a statutory lacuna, not a statutory incompatibility. The inability of parents or children to challenge in court care decisions, however fundamental, made by a local authority while a care order was in force, was a different matter. Judicial review apart, the opportunity to challenge such decisions in court would be in conflict with the scheme of the 1989 Act. The issue of whether in this respect the Children Act 1989 was incompatible did not arise in this case, as the parties concerned had not lacked a court forum in which to express their concern at the lack of progress ... (4)     Interim care orders were not intended to be used as a means by which the court might continue to exercise a supervisory role over the local authority in cases in which it was in the best interests of a child that a care order should be made. Problems had arisen about how far courts should go in attempting to resolve the uncertainties within care plans before making a care order. Where an uncertainty needed to be resolved before the court could decide whether it was in the best interests of the child to make a care order at all, the court should finally dispose of the matter only when the material facts were as clearly known as could be hoped. Some uncertainties relating to the details of the care plan were suitable for immediate resolution, in whole or in part, by the court in the course of disposing of the care order application; other uncertainties could and should be resolved before the court proceeded, during a limited period of 'planned and purposeful' delay. Frequently the uncertainties involved in a care plan could only be worked out after the making of an order. Despite all the inevitable uncertainties, when deciding to make a care order the court should normally have before it a care plan which was sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child in the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, would vary from case to case, but if the parents and the child's guardian were to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific. The court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of over-zealous investigation into matters which were the responsibility of the local authority.” Representation of children in care proceedings Section 41 of the 1989 Act provides for the appointment by the court of a “Children's guardian” (an officer of the Children and Family Court Advisory and Support Service “CAFCASS”) for the purposes of specified proceedings for example, applications for the making or discharge of care and supervision orders. CAFCASS's primary function is to safeguard and promote the welfare of children. When the court rules on an application, the guardian's role comes to end. There is no statutory provision for guardians to have a role outside active court proceedings. Section 118 of the 2002 Act provides for the appointment by the local authority of an “independent reviewing officer” (“IRO”). The IRO is independent of the line management involved in the child's case and his/her role is to participate in statutory reviews, monitoring the authority's functions and referring the case to CAFCASS if appropriate. Referral allows a Children's guardian to take any necessary action through the courts by acting for the child either in proceedings for judicial review or free-standing claims under the Human Rights Act 1998 (“HRA”). The IRO may also refer a child to a solicitor directly if legal assistance is considered more appropriate. Challenging the making and implementation of a care order An aggrieved party may appeal the making of a care order to the court on the basis that it was not justified in the circumstances, for example, that the order breaches the Article 8 rights of the parents or children (section 7(1)(b) of the HRA). Representations to the local authority may also be made by parents and children at the statutory reviews which take place after four weeks, three months and then every six months after the care order. The local authority is required to seek the views of all relevant parties. The local authority must also make available a complaints procedure, involving the participation of at least one person independent of the local authority (section 26 of the 1989 Act). Complaint may also be made to the Local Government Ombudsman if any interested party is unhappy about the discharge by a local authority of its functions under the Act. The Ombudsman can investigate complaints of maladministration (such as bias, neglect, incompetence, arbitrariness) and issue recommendations as to the steps which the authority should take to remedy the injustice to the person aggrieved (see the Local Government Act 1974). Applications may be made to the courts under the 1989 Act concerning contact arrangements or discharge of the care order. Any decision of a local authority in relation to a child in its care may be subject to judicial review in the Administrative Court. Judicial review does not provide an appeal on the merits of a decision. Grounds of challenge include illegality, irrationality, impropriety, material error of fact, acting for an improper purpose, failure to take into account relevant considerations, or taking into account irrelevant considerations. Judicial review proceedings may also include a complaint of breach of Convention rights, pursuant to section 7(1) of the HRA. The HRA also confers a free-standing right of complaint in the ordinary courts where it is alleged that a local authority has breached Convention rights in its decision-making in relation to a child in its care.   COMPLAINTS The applicant complained under Articles 6, 8 and 13 of the Convention. 1. The applicant submitted that the way in which care orders were “unreviewable” by the courts was in breach of Article 6 and/or Article 8 and/or Article 13 of the Convention, in that both parents and children were left without access to court to determine substantial disputes which arose on fundamental issues both on the making of the care order and thereafter as to the manner of its exercise. The nature of the care order was that it did not determine any practical issue in the life of the child, leaving everything, including where the child lived, at the discretion of the local authority. Possible recourse to court, and the available judicial protection, was then limited. Parents might apply to discharge the care order but this was almost impossible in the immediate aftermath of the order and would present difficulties where the parent and child had been separated for any length of time. The most that parents were likely to be able to show was the need for a staged rehabilitation of the child yet the structure of domestic legislation meant that if the local authority was not behind such a plan it could not be imposed upon it. Applications under the Human Rights Act 1998 allowed relief or remedy for a past breach of human rights but could not themselves determine the future of the child. The absence of any legal safeguards ensuring the best interests of the child and continuation of the relationship with parents in that context also raised issues under Article 8. 2. The applicant complained that the freeing for adoption procedure was unfair as the parents had no sufficient or effective access to information and evidence concerning the prospective adopters and the role of the guardian, intended to safeguard the interests of the children, was ineffective (for example, the guardian acquainted with the family was replaced by one who never observed the children and parents together, who failed to pursue an assessment of the children's relationship with the parents and the applicant's ability to parent alone and who approved the freeing for adoption even though he was not allowed to meet the prospective adopters and was shown details only at the last moment). The freeing orders also infringed Articles 6 and 8 by denying the applicant effective access to court following the breakdown of the children's placement. He was unable to be involved in the decision-making process in relation to the future of the children who were left in a state of limbo and this was a disproportionate and unnecessary interference in family life. 3. In addition to these structural and procedural flaws, the applicant submitted that the taking into care of the children and the permanent separation were not, on the facts of the case, justified by an overriding requirement in the children's interests and therefore in conformity with Article 8 of the Convention. In particular, there was no sufficient decision-making process, no time was taken to explore other options, the local authority failed to provide the family with promised support, the family had been coping adequately with evidence from the children's school that they did not stand out as unusual, deprived or unhappy and the standard of care was assessed at the material time of removal by a social worker of only two years' post qualification experience. The Care Plan had recognised that the family needed support to parent the children but the State nonetheless proceeded to adopt the children when it should have kept them at home and provided support. 4. The applicant added a complaint in his observations in reply, having discovered that the children's names were changed after they were placed with prospective adopters. He complained that this constituted an interference with the right to respect for family life of the children and of the applicant (at least for N. and Z. whose names he chose). THE LAW The applicant complains under Articles 6, 8 and 13 of the Convention about the non-enforceability of care plans, the taking into care of the children and their placement for adoption. Article 6 § 1 provides as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 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.” Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.     Issues under Article 34 of the Convention The Government noted that the applicant appeared to complain about breaches of the mother's rights at various places in his submissions and submitted that he was not entitled to do so. Insofar as he referred in his own complaints to the failure of the CCC concerning the failure of the CCC to invite him to the meeting on 8 January 2002 at which it decided to pursue the adoption of the children, they contended that he could no longer claim to be a victim in light of the High Court judgment. The Court observes that the mother has not been identified as an applicant in the present application and that no letter of authority has been lodged entitling anyone else to represent her. The applicant in his submissions has clarified that he does not intend to make any complaints on her behalf. As regards the exclusion from the meeting on 6 January 2002, the applicant also accepted that the domestic authorities had acknowledged the breach of his human rights and that in this limited respect he was not a “victim” for the purposes of the Convention. Accordingly, the scope of the examination of this application excludes the position of the mother and the failure of the local authority to allow the applicant to participate in the meeting of 6 January 2002. B.     Issues under Article 35 § 1 of the Convention 1.     The Government's submissions The Government submitted that significant parts of the application were inadmissible for failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention. Firstly, they submitted that insofar as the applicant has complained that there had been insufficient judicial control of the CCC's decision-making under the care orders, this had not been pursued in his notice of appeal to the Court of Appeal or in his oral argument. Secondly, they claimed that he had not complained during the proceedings about insufficient access to information concerning the prospective adopters and had in fact argued that the CCC had failed to comply with its obligations under the Adoption Rules to disclose information to the court and to the guardian, a failure which was remedied before the trial ended. It was only at the very end of the trial that he made an application for the information to be disclosed to him and even then he did not voice any challenge to the disclosure provisions