AS TO THE ADMISSIBILITY OF

 

Application No. 16424/90

by Antony and Margaret McMICHAEL

against the United Kingdom

 

      The European Commission of Human Rights sitting in private on 8 December 1992, the following members being present:

 

           MM.   C.A. NĜRGAARD, President

                 J.A. FROWEIN

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G. H. THUNE

           Sir   Basil HALL

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

 

                 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 11 October 1989 by Antony and Margaret McMichael against the United Kingdom and registered on 10 April 1990 under file No. 16424/90;

 

      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 May 1991 and the observations in reply submitted by the applicant on 5 August 1991 and 25 September 1991;

 

-     the oral submissions of the parties at the hearing held on 8 December 1992;

 

      Having deliberated;

 

      Decides as follows:

 

THE FACTS

 

      The applicants, who are now husband man and wife, are British citizens born in 1938 and 1954 respectively and resident in Glasgow.

The facts as submitted by the parties may be summarised as follows.

 

      The second applicant gave birth to a son A. on 29 November 1987. The first applicant, who was living with the second applicant, was later named as the father on the birth certificate.

 

      The second applicant had a history of recurrent mental illness. She was first ill in or about 1973 and was admitted to psychiatric hospital on a number of occasions.  There was a recurrence of her illness shortly after A.'s birth.  As a result, the Social Services of Strathclyde Regional Council ("the Council") took A. into care on 11 December 1987 under a Place of Safety Order.

 

      On 17 December 1987, the case was brought before a Children's Hearing.  The second applicant was present.

 

      The ground of referral to the Children's Hearing was -  "that a lack of parental care is likely to cause him unnecessary suffering or seriously to impair his health or development"- Section 32 (2)(c) of the Social Work (Scotland) Act 1968 ("the 1968 Act").

 

      The statement of facts given in support of the ground of referral stated inter alia:

 

      (1)  That <the above named> A. ... was born on 29 November 1987 (as far as can be ascertained), and presently is in the Special Baby Care Unit of the Southern General Hospital, Glasgow...

 

      (2)  that the <second applicant> suffers from a major psychiatric illness.

 

      (3)  that the <second applicant> refuses to take medication to stabilise her condition when not an in-patient at psychiatric hospital.

 

      (4)  that the <second applicant> has required to be admitted to psychiatric hospital on emergency basis under the Mental Health (Scotland) Act 1984 on <5 June 1986, 5 December 1986 and 31 December 1986>.

 

      (5)  that due to her psychiatric condition the <second applicant> is unlikely to be able to care adequately for the child."

 

      At the hearing on 17 December 1987 the ground of referral and statement of facts were put to the second applicant.  She denied the ground of referral.  The Children's Hearing accordingly instructed the Reporter to apply to the Sheriff for a finding on whether the ground of referral was established.

 

      The Children's Hearing on 17 December 1987 also issued a warrant for continued interim detention of A. in a place of safety pending determination of the merits of the case.  Subsequent warrants for continued detention were granted by a further Children's Hearing on 5 January 1988 and by the Sheriff Court at Glasgow on 21 January 1988.

 

      On 23 December 1987, A. was discharged from hospital and taken to foster parents. The second applicant discharged herself from hospital.  Arrangements were made for her to be taken 3 times a week for access visits to A. at the foster home, under the supervision of the Council.

 

      It was decided by the Council at this stage that the first applicant should not be included in the access arrangements.  The principal reason for this was that at this time the second applicant still denied that the first applicant was the father.  Other reasons were his aggressive and threatening attitude and his refusal to give information about his background.

 

      The second applicant complained about the placement in Greenock and inadequacy of access arrangements.  At first she accepted the exclusion of the first applicant, but she and the first applicant subsequently complained about it. The second applicant failed to appear for four of the access visits between 31 December 1987 and 18 January 1988.

 

      On 21 January 1988 the Reporter's application for a finding on the grounds of referral was heard in the Glasgow Sheriff Court.  The second applicant was present and represented.  The first applicant was also present.  Evidence was heard from medical, nursery and social work witnesses and the first and second applicants both gave evidence. At the conclusion of the hearing the Sheriff found the grounds of referral established.  He remitted the case to the Reporter for him to arrange a Children's Hearing to consider and determine the case.  The second applicant did not appeal to the Court of Session.

 

      On 27 January 1988, the Council held a child care review of the case, at a meeting at which the applicants were both present.  A consultant psychiatrist advised that the second applicant was seriously mentally ill and would not accept treatment.  It was decided that in view of this, access should be terminated, though this decision would be reviewed if the second applicant had treatment and her mental state improved.  The first applicant had also requested access at the meeting, claiming that he was A.'s father.  Access was refused since the second applicant maintained that he was not the father and in light of his aggressive and threatening attitude.

 

      In February 1988, the applicant was admitted to hospital where she remained until June 1988.

 

      On 4 February 1988, the Children's Hearing met to consider the case.  The second applicant attended, with the first applicant as her representative.  The Panel had a number of documents before it, including a report on the child compiled on 28 January 1988 reviewing the history of the case and proposing that A. continue to reside in the foster home.  These documents were not produced to the applicants but the Chairman informed them of their substance.

 

      At the conclusion of the hearing it was decided that it would not be appropriate in the interests of A. to commit him to the care of the applicants and made a supervision requirement under Section 44 (1) a of the 1968 Act placing A. under the supervision of the Council subject to the condition that he reside with the foster parents.  The decision was based, inter alia, on the mental health of both applicants and the aggressive and hostile nature of both applicants.  This decision did not make any provision as to access.  In such circumstances the presumption is that parents get reasonable access subject to Section 20 (1) of the 1968 Act which empowers a local authority to deny access where necessary for the child's welfare.

 

      The second applicant lodged an appeal, which was due to be heard at the Sheriff Court on 29 February 1988.  The second applicant attended court, with two nurses, apparently heavily sedated.  Following discussion, the Sheriff asked if the second applicant would prefer to ask for a review by a Children's Hearing of the supervision requirement rather than pursue her appeal.  The second applicant agreed.

 

      A review was held by the Council on 27 April 1988 and was attended by both applicants.  In view of the second applicant's improved mental state it was decided to allow the second applicant supervised access visits.  By this time, the second applicant had agreed that the first applicant was A's father and on 18 February 1988, the first applicant's name had been added to the birth certificate.

This did not give the first applicant any parental rights.  At the review, the Council decided not to grant him access until he gave them information about his background which he had so far refused to do.

 

      On 24 August 1988, the first applicant's solicitors applied to the Scottish Legal Aid Board for legal aid for an action in the Court of Session to obtain custody or access.  The Board refused legal aid on the ground that the action was incompetent since the Court of Session had no power to lift the supervision requirement and would not intervene in access disputes.  Counsel then advised the first applicant that this decision was correct but that the best method of obtaining access would be to get the Children's Hearing to review the supervision requirement.

 

      On 20 September 1988, the Council held a further review. They had held meetings with the first applicant to obtain background information and made inquiries with his doctor and the police.  It was decided at the review to allow both applicants access of 3 visits per week at a Special Centre and give the applicants assistance in learning parenting skills.  It was also intended that there should be access for one 24 hour period.  This intensive access was to last for 3 months after which an assessment would be made.

 

      On 13 October 1988, the Children's Hearing held a review of the supervision requirement.  The second applicant was present and the first applicant was present, as her representative.  It had before it a report dated 20  September 1988 updating information on A. and outlining the proposed access arrangements.  This report was not disclosed to the applicant's though the Chairman informed them of its substance.  The applicants had submitted a statement alleging inter alia that they had never had an opportunity to show that they could care for A.

 

      After the hearing, it was decided to continue the supervision requirement and to approve the access proposals.  The Hearing considered that only time would show if rehabilitation was a viable prospect and that the second applicant's mental health should be closely monitored.

 

      The second applicant did not appeal to the Sheriff Court.

 

      The access period lasted from 4 October 1988 to 19 December 1988, during which the applicants had approximately 23 access visits. The social workers did not consider the visits to be a success.  In reports dated 22 November 1988 by a health visitor and 23 November 1988 by a doctor, it was stated that the applicants frequently argued before A. and displayed aggression to the staff, with the result that they were excluded from two child care centres.

 

      On 19 December 1988, a child care review was held, at which the applicants were present.  It was decided to terminate access visits in view of concern about the long-term effects on A. and the fact that no obvious progress had been made in the applicants' ability to care for A.  The Council also decided to investigate the option of freeing A. for adoption.  The applicants appealed internally to the District Manager of Social Services, who confirmed the decision by letter of 28 December 1988.

 

      Following the second applicant's application, the Children's Hearing carried out a review on 20 June 1989.  The second applicant was present with the first applicant as her representative.  A report dated 28 June 1989 was before the Hearing further updating the case. It described the access period and reported that A. was happy and developing well and that prospective adopters were being sought.

 

      The applicants applied for access to be re-established.  The Hearing considered that there was a conflict of interest between the counsel and the second applicant, and probably between parent and child and decided that a safeguarder should be applied to represent the child's interests.

 

      The Safeguarder, appointed by the Hearing, interviewed, inter alia, the applicants, the social workers, the foster-parents and the police.  His report of 18 August 1989 stated, inter alia, that A. was being adequately cared for by the foster parents and that it was desirable that the second applicant should obtain a doctor's opinion on her mental state.

 

      The adjourned Children's Hearing reconvened on 5 September 1989. The applicants were present and the second applicant represented by a solicitor.  The Safeguarder's report and other documents before the Hearing were not disclosed to the applicants, but the Chairman informed them of the substance.  The Safeguarder attended the hearing and confirmed his view that A.'s best interests would be served by his remaining in care.  The Hearing concluded that the supervision requirement should continue and that there was nothing in what they had heard to convince them that they should grant access.  They did not take up the suggestion of obtaining an independent psychiatric report on the second applicant.

 

      The second applicant appealed to the Sheriff Court on the grounds:

 

      (a) that they had not been informed of the substance of the documents produced at the hearing,

     

      (b) that the refusal of access was based on inadequate information, in particular the lack of up to date information as to the second applicant's mental health and

     

     

      (c) that an adjournment for the purpose of obtaining a psychiatric report had been refused.

     

 

      Ground (a) was apparently not pursued at the appeal, which took place on 4 October 1989.  The Sheriff decided that it would have been appropriate to obtain a psychiatric report and remitted the case to the Children's Hearing.

 

      A psychiatric report dated 29 September 1989 had been produced at the request of the second applicant's solicitors.  This report indicated that the second applicant suffered from a recurrent mental illness but that this was in remission and if it recurred it could respond satisfactorily to treatment as in the past.  He considered access should be re-established and that A. should eventually be returned to the applicants.

 

      A Children's Hearing to consider the report was to be convened on 9 January 1990 but neither applicant attended or was represented, the Hearing being informed that the second applicant had been declared insane and admitted to hospital.  A further Hearing was held on 18 January 1990. Neither applicant attended or was represented.  The Hearing concluded that the second applicant was not well enough to have access to A. and that they could not see any future for A. with her.

A condition was added to the supervision requirement that there be no access by the second applicant.  The second applicant did not appeal.

 

      On 1 February 1990, the Council lodged with the Sheriff Court a petition for freeing A. for adoption.

 

      The applicants were married on 24 April 1990.  The first applicant thereby obtained parental rights in respect of A.

 

      The petition was heard between 18 June 1990 and 27 July 1990. The applicants refused to give their consent to adoption.  They were present at the hearing and the second applicant represented by a solicitor.  The documentary evidence before the Court had been disclosed to the applicants.  Witnesses were heard and the applicants given the opportunity to cross-examine them and lead their own evidence.

 

      On 12 August 1990 the applicant was re-admitted to hospital. On 14 October 1990 the Sheriff decided that the applicants were withholding their consent unreasonably.  He decided to dispense with their consent and granted the order freeing A. for adoption.

 

      "In my view, there is no escaping from the conclusion that both these parents are withholding their agreement unreasonably.  They are withholding their agreement because they are not parents who have begun to demonstrate their capacity to have custody.  [The second applicant] suffers from a grave mental illness which may at any time, unless appropriate medical treatment is taken, incapacitate her from looking after, not only a child, but herself.  Even when her illness is not to the degree at which hospitalisation is required, she has been demonstrated as incapable of the most elementary physical and emotional capacities in parenting.  The one capacity she does have, I accept, is the desire to be a parent, to have the child, but the accomplishment of that ambition is, I fear, demonstrated to be beyond her.  The incapacity of the father to behave normally as a parent to the child is established by the evidence of Mrs. K. and Mrs. M., whose testimonies support the findings in fact I have made relating to what happened on the access visits.  The child, now nearly three, has in fact, as an infant, rejected both his parents ...

      The [applicants] are objecting to the child being freed for adoption in order, and only in order, that they can have custody of him.  Such a conclusion can only be viewed with the utmost misgiving for the future of this child.  He is presently reared in a house by foster parents who have enabled him to withstand the traumas of these access visits by the [Respondents].  It would be wholly contrary to his welfare for this present state which is one of uncertainty, to be prolonged and the possibility of his parents having his custody contemplated.  Neither his mother, nor [the first applicant], are interested in the welfare of the child.  They are incapable of distinguishing between the child's interests and their having possession of him.  A reasonable parent would give great weight to the welfare of the child.  The welfare of this child clearly does not lie with his being with his parents, and their opposition to the present application is, in my view, unreasonable.  Any objective view of their attitude and of their conduct, in my view, discloses its unreasonableness.  Mrs. K., whose experience as a Health Visitor is extensive and impressive, and whose experience of the

[applicants] in the course of this case was considerable and whose testimony I accept, gave her opinion of [the first applicant] at the end of the penultimate paragraph of her report produced and of the risks she feared to the child if he was involved with him.  Standing such a censure from such a source, which I accept as valid, his present attitude, viewed objectively, can, in my view, only be regarded as unreasonable ..."

 

      In December 1990 the applicants lodged an appeal to the Court of Session.  They applied for legal aid and appear to have been granted legal aid for the purposes of obtaining counsel's opinion.  Counsel advised that an appeal had no prospect of success and legal aid was not extended.  The applicants continued their appeal representing themselves.

 

      Their appeal was dismissed by the Court of Session on 1 November 1991. The Court held that the Sheriff was justified in concluding that because of the mental health of the second applicant and the first and second applicants' lack of understanding how properly to care for a child, it would have been contrary to the best interests of A. to return him to the applicants' custody.

 

 

      Relevant Domestic Law and Practice

 

      Rights of parents

 

      Under Scots law, the nature of the rights enjoyed by parents in relation to their children is governed by the common law.  In respect of girls under 12 and boys under 14, parents enjoy inter alia,

 

      (1) the right of tutory which can be described as the right to administer the child's property and to act legally on behalf of the child;

     

    

      (2) the right of custody, which can be described as the right of the parent to have the child living with him or her, or otherwise to negotiate the child's residence and to control the child's upbringing;

          

 

      (3)  the right to access

 

      The persons who may exercise parental rights are governed by the Law Reform (Parent and Child) (Scotland) Act 1986 ("the 1986 Act").

 

      Section 2 (1) provides:

 

      Subject to sections 3 and 4 of this Act-

 

      (a) a child's mother shall have parental rights whether or not she is or has been married to the child's father;

     

 

      (b) a child's father shall have parental rights only if he is married to the child's mother or was married to her at the time of the child's conception or subsequently.

           

 

      Under Section 3, any person claiming an interest may make an application to the court for an order relating to parental rights and where it is in the interests of the child the court may make such an order.  A father of a child born out of wedlock may obtain parental rights under this procedure by applying either to the Court of Session or the local Sheriff Court.

 

      Compulsory Measures of Care

 

      The rules regarding compulsory measures of care in respect of children are set out in Part III of the Social Work (Scotland) Act 1968 ("the 1968 Act") supplemented by subordinate legislation.

 

      Under Section 20 of the 1968 Act, the local authority has a general responsibility for promoting social welfare in its area.  It has the duty to inquire into and tell the Reporter of cases of children who may need compulsory measures of care.

 

      The Reporter is appointed under Section 36 of the 1968 Act by the local authority.  Though employed by the local authority, he is expected to exercise his judgment independently and is separate from the local authority's social work department.  He may not be removed from office without the consent of the Secretary of State.  His duties include deciding whether a case should be referred to the Children's Hearing and arranging such hearings when they are necessary.

 

      Children's Hearings

 

      Children's Hearings are the sittings of members of the children's panel which decide whether a child requires compulsory measures of care and if so, they may order such measures. Pursuant to Section 34 of the 1968 Act, a Children's Hearing consists of a chairman and 2 other members drawn from the children's panel constituted under Section 33 of the 1968 Act.

 

      Section 33 and Schedule 3 provide for constitution of the children's panel.  The Secretary of State appoints a children's panel for each local authority area. appropriate.  The members hold office for such period as the Secretary of State specifies, but may be removed by him at any time.

 

      The Children's Hearing may only consider the case of a child where it has been referred to them by the Reporter and where certain "grounds of referral" are established, either by agreement with the child and his parent or by a court decision.

 

      The grounds of referral

 

      The Children's Hearing may only consider a case and decide if compulsory measures of care are appropriate where one of the "grounds of referral applies to the child, either by being accepted by the child and his parent or by being established by a decision of the Sheriff. The grounds as set out in Section 32 of the 1968 Act, include -

 

      (c) lack of parental care is likely to cause him unnecessary suffering or seriously to impair his health or development;

           

 

      Thus, in the absence of agreement, a decision by a judge on the grounds of referral after hearing appropriate evidence, is essential before the Children's Hearing can consider the case.

 

      A parent has the right to attend at all stages of a Children's Hearing.  "Parent" excludes the father of a child born out of wedlock but includes a person who has been granted parental rights under Section 3 of the 1986 Act.  A parent may be represented, by any person of their choice. Where the Chairman of the Children's Hearing considers that there is a conflict of interest between child and parent, he has the power to appoint a person known as a safeguarder to represent the child.

 

      Procedure

 

      The Reporter is under a duty to notify the parents of a child of a Children's Hearing giving at least 7 days' notice.  He also must provide before the first hearing a statement of the grounds of referral.

 

      At the first Children's Hearing, they must ascertain if the grounds of referral are accepted by the child and his parent.  If they accept, the hearing may proceed.  If not, they must direct the Reporter to apply to the Sheriff Court for a decision as to whether the grounds are established.  Such application must be made within 7 days and heard within 28 days of that application.  The parents may appear as parties and be represented.  Following a hearing, the Sheriff may either discharge the referral or where he is satisfied that the grounds are established, remit the case to the Reporter.  The Reporter, pursuant to S. 42(6) of the 1968 Act arranges for consideration and determination of the case by the Children's Hearing.

 

      At this stage, the Children's Hearing must consider what arrangements would be in the best interests of the child (Section 43 of the 1968 Act).

 

      They may, inter alia,

 

      (1)  decide no further action is required  and discharge the referral

     

      (2)  adjourn pending further investigations, including directing that a child attend a clinic or hospital;

     

      (3)  make a suspension requirement under Section 44, requiring the child to submit to supervision in accordance with such conditions as they may impose or to reside in a named establishment.

           

 

      Before the conclusion of the hearing the chairman must inform the child, parent or parents, safeguarder if any and representatives if attending the hearing of the decision of the Children's Hearing the reasons for the decision the right of the child or parent to appeal to the Sheriff against the decision and the right of the child and parent to receive a statement in writing of the reasons for the decision.

Such a written statement must then be given if requested.  Any parent, child or safeguarder who did not attend must be notified in writing of the decision, the right to receive a statement of reasons and the right to appeal.  (Children's Hearing, Rules 19(4) and 20).

 

      The mode of operation of a Children's Hearing is intended to differ from that of a court.  The Children's Hearing is intended to determine what is in the child's best interest.  Its aim is to achieve this by informal discussion, not by an adversarial procedure.

Nevertheless, the child and his parent, and any safeguarder appointed to look after the child's interests, must be fully involved in the discussion.

 

      Reports and documents considered at the Children's Hearing

 

      The Children's Hearings are required to consider all the information so supplied (Children's Hearings rules, Rule 19(2)(a). Apart from the statement of grounds of referral this information (reports, documents etc.) is not usually supplied to the child or his parents, but the chairman is required at the hearing to inform the child and his parents of their substance if it appears to him that this is material to the manner in which the case should be disposed of and

that its disclosure would not be detrimental to the interests of the child (Children's Hearing Rules, Rule 19(3) ).

 

      Supervision requirements

 

      Supervision requirements are the orders of the Children's Hearing imposing compulsory measures of care.  They may be of 2 kinds.

 

      (a) Requirements to submit to supervision in accordance with such conditions as the Children's Hearing may impose.

      (Section 44(1) (a) of the 1986 Act).  The conditions may include for example conditions requiring the child to reside in a particular place other than a residential establishment or with particular persons.

 

      (b)  Requirements to reside in a named residential establishment and to be subject to such conditions as the Children's Hearing may impose.  (Section 44(1)(b) of the 1968 Act).

 

 

      The effect of supervision requirements has been clarified in court decisions, in particular the decisions of the Court of Session in the cases of Aitken v. Aitken 1978 SC 297, Dewar v Strathclyde Regional Council 1984 SC 102 and Kennedy v. A 1986 SLT 358.  A supervision requirement makes the local authority responsible for the care of the child in accordance with the requirement and give them the necessary powers to exercise this responsibility.  It does not, however, formally vest in them any parental rights of custody and does not take away parental rights. Those rights are subject to the supervisory requirements and so far as inconsistent with those requirements they cannot be exercised. Thus the right of custody cannot be exercised where a supervision requirement has required a child to live in foster care.  The Court of Session has indicated in the case of Aitken v. Aitken that while such a supervision requirement subsists it would be possible for them to award a person custody of the child, but this award would have effect subject to the supervision requirement and the person could not exercise actual custody while the supervision

requirement subsisted.

 

      As regards access, the Children's Hearing are entitled to attach conditions as to access when making or continuing a supervision requirement.  This was made clear in the case of Kennedy v. A.  In the absence of any express condition as to access, the parents will be given reasonable access.  However, it is competent for a local authority to terminate access where that is appropriate in pursuance of their duty under Section 20 of the 1968 Act.

 

      The Court of Session have made it clear in the case of Dewar v. Strathclyde Regional Council, that the courts will not adjudicate on questions of access between the parents and the local authority.  If a parent is dissatisfied with the decision of a local authority as to access, the Court of Session have indicated that it is appropriate for him to apply to the Children's Hearing to regulate the matter by attaching a condition as to access to the supervision requirement.

 

      A parent has the right to request a review of a supervision requirement every 6 months after the last review (Section 48 (4) of the 1968 Act) and can use this right to obtaining a ruling on access.

 

      Duration and review of supervision requirements

 

      The 1968 Act prescribes that a child should not continue to be subject to a supervision requirement for any longer than is necessary for his interest.  The requirement must be reviewed by a Children's Hearing -

 

      (a) at any time if the local authority consider that it should cease to have effect or be varied;

     

      (b) within one year, otherwise it will cease automatically to have effect;

     

      (c) at the request of the child or his parent, after the expiry of these periods.-

     

 

           (i)   3 months from imposition of the requirement;

 

           (ii)  3 months from any variation of the requirement of review;

          

 

           (iii) 6 months from any other review.

 

      The Reporter must make the necessary arrangements for such revision hearings.  On review the Children's Hearing may terminate, continue or vary the requirement.  (Section 47 (1) and 48 of the 1968 Act).

 

      Appeal against decision of a Children's Hearing

 

      Within 3 weeks of a decision of a Children's Hearing a child or parent or both may appeal against it to the Sheriff (Section 49(1) of the 1968 Act).  This applies to all decisions.

 

      The Reporter has the duty to ensure that all reports and statements available to the Children's Hearing along with reports of the proceedings of the Children's Hearing and their reasons for their decisions are lodged with the clerk to the Sheriff Court.  These documents are not made available to the parents as a matter of practice.

 

      The appeal is heard in chambers.  The Sheriff must first hear the appellant or his representative and any safeguarder appointed.  Where an irregularity in the conduct of the case is alleged, then unless the facts are admitted by the Reporter, the Sheriff must hear evidence tendered by or on behalf of the appellant and Reporter as to the irregularity.

 

      The Sheriff will then proceed to question, if he thinks fit, the Reporter and the authors or compilers of any reports and statements before him.  He can call for further reports and statements where he thinks this may help him. The child and parents and safeguarder are normally entitled to be present throughout.

 

      The Sheriff looks at the merits of the case.  Where he decides the appeal has failed, he confirms the decision of the Children's Hearing.  Where he is satisfied that the decision is not justified in all the circumstances of the case, he may remit the case to the Children's Hearing for consideration or discharge the child from any further proceedings arising from those grounds of referral (Section 49(5) of the 1986 Act).

 

Adoption procedure

 

      The legislation governing adoption procedure is the Adoption (Scotland) Act 1978 ("the 1978 Act").

 

      Under the 1978 Act, an order declaring the child free for adoption may be made by the Court of Session or Sheriff Court.

 

      Before making the order the court must be satisfied as regards each parent or guardian of the child that either -

 

      (a) he or she freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order;  or

     

      (b) his or her agreement to making the adoption order should be dispensed with on one of the grounds specified in Section 16(2) of the 1978 Act.

           

 

      There are a number of grounds for dispensing with the parents' or guardians' consent.  These include the ground that the parent or guardian is withholding his agreement unreasonably.

 

      For the purposes of the 1978 Act the natural father of a child born out of wedlock would not be a "parent' except where he has subsequently married the mother or has a parental rights order in his favour.

 

      The effect of an order freeing the child for adoption is to vest parental rights and duties in the adoption agency and to extinguish existing parental rights.

 

      An order of the Sheriff Court freeing a child for adoption is subject to appeal to the Court of Session.  On such an appeal the Court of Session can decide on the merits of the action.  The Court of Session will normally proceed on the basis of the Sheriff's findings of fact but is not obliged to do so.  It may where appropriate take evidence itself or remit the case to the Sheriff with instructions as to how he should proceed.

 

COMPLAINTS

 

      The applicants complain that they have been deprived of the care and custody of their son A. and thereby of their right to found a family. The complain that they have not had a fair hearing before the Children's Hearing and that they have not had access to confidential reports and other documents submitted to the Hearing. They complain of being deprived of access to A. and of the freeing of A. for adoption.

 

       The first applicant also complains that as a natural father he had no legal rights to custody of A. or to participate in the custody or adoption proceedings and that he was discriminated against in this respect.

 

      The applicants do not invoke any particular provision of the Convention.

 

PROCEEDINGS BEFORE THE COMMISSION

 

      The application was introduced on 11 October 1989 and registered on 10 April 1990.

 

      On 3 December 1990 the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application.

It decided not to refer the case to a Chamber.

 

      The Government's observations were submitted on 16 May 1991 after two extensions in the time-limit and the applicant's observations in reply were submitted on 5 August 1991 and 25 September 1991.

 

      On 7 April 1992, the Commission decided to hold an oral hearing.

 

      On 23 July 1992, the Commission granted the applicants legal aid.

 

      At the oral hearing, which was held on 8 December 1992, the parties were represented as follows:

 

      For the Government:

 

 

      Ms. D. Brookes             Agent

      Mr. T. Dawson, QC          Solicitor General for Scotland

                                 Counsel

      Mr. D. Ogg, Advocate       Counsel

      Mr. J.W. Sinclair          Adviser

      Mr. J.L. Jamieson          Adviser

 

 

      For the applicant:

 

 

      Mr. Peter McCann           Solicitor

      Mrs. McCann                Assistant

 

      Mr. and Mrs. McMichael, the applicants, were also present.

 

 

THE LAW

 

1.    The applicants complain that they have been deprived of the care and custody of their son A.  They also complain of the termination of access and the freeing of A. for adoption.

 

      The Commission has examined these complaints under Article 8 (Art. 8) of the Convention, which provides as follows:

 

      "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 Commission finds, in accordance with its well-established case-law, that the decisions refusing custody, terminating access and freeing their son A. for adoption constituted an interference with the applicants' right to respect for their family life within the meaning of the above provision (see e.g. Eur. Court. H.R., W. v. the United Kingdom Judgment of 8 July 1987, Series A no. 121, p. 27 para. 59).

The Commission must therefore examine whether this interference was justified under Article 8 para. 2 (Art. 8-2) of the Convention, namely whether it is "in accordance with law", pursues one or more of the legitimate aims enumerated in Article 8 para. 2 (Art. 8-2) and whether it is "necessary in a democratic society" for one or more of those aims.

 

      The Commission recalls that the compulsory measures of care were taken under the provisions of the Social Work (Scotland) Act 1968 and the freeing for adoption order granted by the Sheriff Court pursuant to the provisions of the Adoption (Scotland) Act 1978.  The Commission notes that the decisions were taken as being in the best interests of A., having regard, inter alia, to the difficulties posed by the second applicant's health.  In these circumstances, the Commission finds that these decisions were "in accordance with the law" and for the legitimate aim of protecting A.'s health and rights.

 

      The question remains whether the decisions were "necessary" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

The case-law of the Commission and the Court establishes that the notion of necessity implies that the interference corresponds to a pressing social need and that it is proportionate to the aim pursued. Further, in determining whether an interference is necessary the Commission and the Court will take into account that a margin of appreciation is left to the Contracting States, which are in principle in a better position to make an initial assessment of the necessity of a given interference.  It is not the Commission's task to take the place of the competent national courts and make a fresh examination of all the facts and evidence in the case.  The Commission's task is to examine whether the reasons adduced to justify the interference at issue are "relevant and sufficient" (Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, p. 32, para. 68).

 

      The Commission has accordingly examined the reasons given for the decisions.

 

      The Commission recalls that the decisions depriving the applicants of the care and custody of A. were taken in light of the facts, established before the Sheriff Court, that the second applicant suffered from a major psychiatric illness and was as a result unable to care adequately for A.  The Commission recalls that the decisions of the Children Hearing regarding the applicants' access to A. were made following a 3 month period of intensive access during which concern arose as to the effect on A. and it appeared that the applicants had made no progress in their ability to care for. A.  The second applicant also had a recurrence of ill-health during this period and was admitted to hospital.  As regards the decision to free A. for adoption, the Commission notes the judgment of the Sheriff given as 14 October 1992 where he found that the applicants had failed to demonstrate the capacity for parenting and that, in light of the evidence, it would be wholly contrary to A.'s welfare for him to be returned to them.

 

      The Commission finds that the above reasons were "relevant and sufficient" for the decisions in question and were based on a thorough and careful investigation of the case.

 

      The Commission concludes, bearing in mind the margin of appreciation accorded to the domestic authorities, that the interference in the present case was justified under Article 8 para. 2 (Art. 8-2) of the Convention as being "necessary in a democratic society" for the protection of health and for the protection of the rights of others.

 

      It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

 

2.    The applicants also complain that they were unable to see the confidential reports and documents submitted to the Children's Hearings.  The first applicant further complains that as a natural father (prior to his marriage to the second applicant) he had no legal rights to custody of A. or to participate in the care proceedings and that he was discriminated against in these respects.

 

      The Commission has examined these complains under Article 6, 8 and 14 (Art. 6, 8, 14) of the Convention.

 

      Article 6 (Art. 6) provides, as relevant:

 

      "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) [see above].

 

      Article 14 (Art. 14) provides:

 

      "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

     

 

      The Commission considers that these complaints raise serious question of fact and law which are of such complexity that their determination should depend on an examination on the merits.  It follows that the complaints cannot be dismissed as 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 INADMISSIBLE the applicants' complaints relating to the taking of A. into care, the termination of access to A. and  freeing of A. for adoption;

 

 

      DECLARES ADMISSIBLE the remainder of the application, without prejudging the merits.

 

 

Secretary to the Commission                 President of the Commission

 

 

 (H.C. KRÜGER)                               (C.A. NĜRGAARD)

 

 

McMichael v. United Kingdom

 

 

Europadomstolen