The appearance of fairness
Barbara Hewson, Dermot Casey and Nuala
Mole analyse the recent ECtHR ruling in P,
C & S v
the crucial importance of legal representation in care and freeing proceedings
the separation of a newborn child from its mother
the lessons for CAFCASS and the Family Division.
This article originally appeared in the New Law Journal, Vol 152 No.7044,
August 2002. Reproduced by permission of Reed Elsevier (UK) Limited trading
The European Court of Human Rights' recent ruling in P C & S v
The background was complex. The mother, P, was American. In 1992 her first marriage ended acrimoniously when her child, B, was seven. In 1995 F was charged with cruelty towards B and endangering his health, a felony offence. A Dr Schreier, an expert on "Munchausen syndrome by proxy" (induced illness syndrome), testified for the prosecution, though he had never met P or examined her. P was acquitted of the felony, but convicted of a misdemeanor and sentenced to three years' probation. A three-month jail term was suspended, after a court-appointed psychiatrist advised that jailing P would not further B's interests.
In 1997 P married C in
S, a baby girl, was born by emergency Caesarean early on
The domestic proceedings
When a child is freed for adoption, the birth parents forfeit their parental status. They can play no part in the choice of adopters or issues such as contact, without leave of the court (which is rarely granted). Freeing for adoption has been much criticised because it excludes the natural parents from the child's life before the child becomes a member of an adoptive family.
Both P and C had legal aid. They were separately represented, each by leading counsel. When the care proceedings began, C withdrew. After telling the judge, Mr Justice Wall, that P was requiring them to conduct her case unreasonably, P's legal team also withdrew. The judge refused P's application for an adjournment to instruct new lawyers, saying that S would be prejudiced by the delay. P therefore had to represent herself in a four-week hearing, while everyone else had counsel.
The court's assessment P and C complained to the European Court of Human Rights that their rights under Arts 6 and 8 of the Human Rights Convention had been infringed. They also complained on behalf of S, their daughter.
The court addressed Art 6 first. There is no express right under the Convention to legal representation in civil cases comparable to the right to counsel in criminal cases, which is explicitly guaranteed by Art 6(3)(c). The court noted Wall J's comment that, if P had a lawyer in the care proceedings, her case would have been conducted differently. It did not matter that the absence of a lawyer might make no difference to the actual outcome. In the court's words: "The complexity of the case, along with the importance of what was at stake and the highly emotive nature of the subject matter, lead this court to conclude that the principles of effective access to court and fairness required that P receive the assistance of a lawyer." As for the freeing application, the court considered that this also raised difficult points of law, and that P and C were not equipped to cope with it alone, especially so soon after the care order.
The court said that it was "draconian" to proceed so quickly with the freeing application. S was with experienced foster parents and there was no difficulty in finding a family to adopt her. Therefore, "the imposition of one year from birth as the deadline appears a somewhat inflexible and blanket approach, applied without particular consideration of the facts of this individual case". It went on:
"the court is nevertheless of the opinion that the procedures adopted not only gave the appearance of unfairness but prevented the applicants from putting forward their case in a proper and effective manner on the issues which were important to them. For example, the court notes mat the judge's decision to free S for adoption gave no explanation of why direct contact was not to be continued or why an open adoption with continued direct contact was not possible, matters which the applicants apparently did not realise could, or should, have been raised at that stage ... The court concludes mat the assistance of a lawyer during the hearing of these two applications which had such crucial consequences for the applicants' relationship with their daughter was an indispensable requirement"
As for removing S after birth, the court (like the Chamber and Grand Chamber in K and T v Finland, CC judgment 12 July 2001), found that there was a violation of Art 8 by the abrupt removal of S at birth from the hospital and thus from her mother, her father and her paternal family and her placement in a foster family many miles away. It found that the rights of the applicant parents had been violated by this measure (para 133). It said:
"the taking of a new-born baby into public care at the moment of its birth is an extremely harsh measure. There must be extraordinarily compelling reasons before a baby can be physically removed from its mother, against her will, immediately after birth as a consequence of a procedure in which neither she nor her partner has been involved (K and T v Finland (Application No 25702/94), [CC], ECHR 2001-W para 168)."
Such a step is "traumatic for the mother and places her own physical and mental health under a strain, and it deprives the new-born baby of close contact with its birth mother and ... of the advantages of breastfeeding." The court was struck by the absence of explanation why S could not have remained in hospital, under supervision. It noted that there was no suspicion of life-threatening conduct by P. Although it considered that it was legitimate to obtain an emergency protection order, the manner of its implementation was unnecessarily harsh, and violated Art 8.
Finally the court considered the procedural guarantees inherent in Art 8. Parents are entitled to be involved in the decision-making process when the State is embarking on child protection measures. In this case, the court considered it essential that the parents had legal representation. If the parents had such representation, the outcome for the whole family might have been affected.
The European Court of Human Rights did not seem concerned that neither P
nor C had any opportunity to challenge the making of the emergency child
protection order. It is doubtful whether any mechanism existed then in English
law whereby the parents, suspecting
It is striking that the