DECISION
AS TO
THE ADMISSIBILITY OF
Application no. 56547/00
by P., C. and S. against the
|
Hudoc reference |
|
|
REF00022740 |
|
Document type |
|
|
Decision |
|
Title |
|
|
P., C. AND S. v. THE UNITED KINGDOM |
|
Application number |
|
|
00056547/00 |
|
Date |
|
|
11/12/2001 |
|
Respondent |
|
|
United Kingdom |
|
Conclusion |
|
|
Admissible |
|
Keywords |
|
|
RESPECT FOR FAMILY LIFE ; CIVIL PROCEEDINGS ; ACCESS TO COURT ;
FAIR HEARING ; FOUND A FAMILY ; SIX MONTH PERIOD ; LOCUS STANDI ; EXHAUSTION
OF DOMESTIC REMEDIES |
The European Court of Human Rights (Second Section), sitting on
11 December 2001 as a Chamber composed of
Mr J.-P. Costa, President,
Mr A.B. Baka,
Sir Nicolas Bratza,
Mr Gaukur Jörundsson,
Mr L. Loucaides,
Mr C. Bîrsan,
Mr M. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 23 December
1999 and registered on 13 April 2000,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
P., born in 1958, is a citizen of the United States of
America; C., the husband of P., was born in 1962, and is a British citizen; S.,
their daughter was born in 1998 and is a British and American citizen. They are
all resident in the United Kingdom. They are represented before the Court by
Leigh, Day and Co., solicitors practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
In January 1976, P., then living in the United States of
America, gave birth to a son A. shortly before her eighteenth birthday. In
1980, P. married her first husband, with whom she bore a second son B. in
February 1985. In 1992, she and her husband separated. Both parents contested
custody of B.
Between December 1990 and January 1994, B. was referred to
his general practitioner for some 47 complaints.
In March-April 1993, B. was taken for examination to Stanford
Hospital for complaints of diarrhoea and fever. On 13 April 1994, a colonscopy
was conducted under general anaesthetic which made no abnormal findings. B. was
discharged home. P. continued to report that B. was suffering from persistent
vomiting and abdominal pain. He was examined twice at hospital that evening and
night and again on 14 April 1994. On each occasion he was found to be in a
normal condition. On 15 April, P. reported that B. had suffered 7-8 episodes of
vomiting. Her version of B.’s past history was noted as differing from the accounts
given to other doctors over this period and the hospital notes. B. was found to
be normal, had put on weight and was not dehydrated. On 16 April 1994, B. was
discharged home. P. reported from home that his diarrhoea continued. On 18
April 1994, B. was admitted to hospital. A laboratory stool test was positive
for the presence of phenolphthalein (a laxative). She told the doctor that “she
accidentally inadvertently gave him laxatives since sometimes she is too
tired.” The doctor was satisfied that P. had been responsible for laxative
poisoning and reported the matter.
On 18 April 1994, the Californian authorities took B. into
protective custody, alleging that P. was harming her son, then aged 9, by
administering laxatives to him inappropriately. He was suspected of being a
victim of induced illness abuse, the syndrome known variously as Munchausen
Syndrome by Proxy (“MSBP”), fabricated or induced illness, illness induction
syndrome or paediatric falsified condition. MSBP is a label sometimes used to describe
a form of psychiatric illness, mainly found in women, who seek attention for
themselves by inducing illness in their children or inventing accounts of
illness in their children, and by repeatedly presenting their children to the
medical authorities for investigation and treatment.
On 23 August 1994, the Californian court ordered that B. live
with his father. Following this placement, B. did not suffer from acute or
abnormal diarrhoea. At a hearing in September 1995, the court approved
supervised contact between P. and her son B., once a month for 2-4 hours for
the following three years. She was informed that if she wished increased
contact, it could be envisaged in a supervised, therapeutic context.
P. was charged with a felony offence under section 273A(a) of
the Californian Penal Code of cruelty towards and endangering B.’s health. It
was based on one episode of diarrhoea, which B. had suffered in hospital, and
the scientific analysis of his stools in which a laxative was found to be
present. P. maintained that she had never taken any deliberate action to hurt
her son. On 4 October 1995, after a five-week trial before a jury in the
Superior Court of California, she was convicted of a misdemeanour under section
273A(b), a lesser offence, and acquitted of the felony. On 17 November
1995, she was sentenced to three years’ probation and ordered to spend three
months in custody, which later was suspended. She was also ordered to enter and
complete a “psychological and psychiatric treatment programme”. P. did not
undertake any such programme however.
In December 1995, P. filed a petition for the return of B. to
her custody. Her application was dismissed, as was her appeal against this
decision. In April-May 1996, P. made further attempts to re-open the case.
On 5 May 1996, the Californian family court reduced contact
to once per month. Her appeal against this was dismissed.
During 1996, P. met her present husband C., a qualified social
worker who obtained a doctorate for research into stories of women wrongly
accused of MSBP.
In November 1996, in breach of the probation order, P. came
to live in the United Kingdom following C.’s proposal of marriage. P. and C.
were married in September 1997 in the United Kingdom. P. discovered shortly
afterwards that she was pregnant.
Rochdale Metropolitan Borough Council (“the local authority”)
was informed of the pregnancy by P.’s doctor and commenced an investigation.
After a child protection conference, on 2 March 1998, the
local authority decided that the unborn child should go on the ‘At Risk’
register under the category of risk from physical abuse.
On 7 May 1998, at 4.42 a.m., S. was born by caesarean
surgery. At 1 p.m., social workers arrived at the hospital. An emergency
child protection order was issued at 3.30 p.m. Before deciding to seek such an
order, the local authority had sought expert advice upon the risk to the unborn
baby. The advice came from experts in the United States of America who had
knowledge of the mother from the American proceedings and from an English
consultant psychiatrist who had read the relevant paperwork and met with the
parents for one and a half hours. The local authority then applied to the court
for a care order under the Children Act 1989.
P. and C. were allowed supervised contact with S. but not
permitted to meet the foster parents. The first visit occurred on 11 May 1998
and thereafter three times a week. P. and C. applied for more access and were supported
by the guardian ad litem appointed by the court to represent S. In June,
contact increased to four times a week. S. also had contact with her maternal
and paternal grandparents.
P. and C. developed an excellent relationship with their baby
daughter S. The notes made by the supervising officials were positive and
complimentary to P. and C.
On 31 July 1998, the timetable for the care proceedings was
set by directions given by a circuit judge and the final hearing date was fixed
for February 1999.
On 17-18 November 1998, the local authority informed P. and
C. of their intention to apply for a freeing order under the Adoption Act 1976.
On 7 December 1998, S. received a pre-adoption medical.
On 15 December 1998, the Fostering and Adoption Panel met to
discuss whether adoption was in the best interests of S. The local authority
experts’ opinion was that S. should not be returned to her natural parents. It
was therefore decided that the care plan should be for adoption.
On 16 December 1998, the local authority made an application
to free S. for adoption on the basis that the withholding of her natural
parents’ consent to adoption was unreasonable.
On 18 December 1998, a pre-trial review took place before Mr
Justice Wall.
On 6 January 1999, the local authority reviewed its positions
concerning S.’s future. The social workers determined that they could not
support the placement of S. with either of her parents or grandparents and that
the care plan would be for adoption. The minutes of the meeting stated:
“... However as this is a very
difficult and complex case it seems appropriate for the local authority to
express its view as it stands but indicate to the court that if the court feels
that there is an alternative other than adoption then it will reconsider its
Care Plan and, if necessary, file an amended Care Plan. If in addition, during
the course of evidence, for example from Dr Bentovim, it appears that there may
be an alternative option, for example if C indicates that he wishes to separate
from P and the evidence during the court proceedings indicates that there is a
prospect that he would be able to protect S in the future, then again
consideration would be given by the local authority as to whether or not to
amend the Care Plan.”
At a hearing, beginning on 2 February 1999 and ending on 1
March 1999, the High Court heard the local authority’s application for a care
order in respect of S. The local authority informed the judge that there were
nine families available and wanting to adopt S.. P. and C. were parties as were
S.’s paternal grandparents, while S. was represented by a professional guardian
ad litem, solicitors and both senior and junior counsel.
On the first day, Mr Justice Wall rejected the submission of
P.’s counsel that the court should exclude the whole of the American evidence
unless its authors could be made available for cross-examination.
On 4 February 1999, C. applied for leave to withdraw from the
proceedings, on the ground that he saw no prospect of success in persuading the
court to grant them the custody of S. and that the stress of the proceedings
was likely to lead to a breakdown in his health. On 5 February 1999, the judge
granted leave to withdraw. On the same date, P.’s legal representatives
(leading counsel and solicitors) withdrew from the case following consultations
with the Legal Aid Board, informing the judge that her legal aid had been
withdrawn. It was later stated by the judge that they had withdrawn as P. was
requiring them to conduct the case unreasonably.
P. asked for an adjournment until 9 February 1999 to obtain
documents from her solicitor. On 9 February 1999, before the first witness was
due to be called, P. asked for an adjournment in order to apply for the
reinstatement of her legal aid certificate. The judge refused the adjournment.
He held that he was satisfied that P. had a clear grasp of the voluminous
documentation and that she was an intelligent woman who was fully able to put
her case in a clear and coherent way. He was also satisfied that counsel for
the local authority and guardian ad litem would treat her fairly and
assist her as necessary. Also he considered that the outcome of the case was
going to hinge substantially on the mother’s cross-examination, an area of the
case in which the ability of lawyers to protect her was limited. Most
importantly however, he had regard to the prejudice which would be caused to S.
by a very lengthy adjournment which would substantially delay resolution of her
future. There was advice from the consultant psychiatrist in the case that a
decision as to S.’s long-term future needed to be made and implemented before
her first birthday.
As a result of this decision, P. conducted her own case,
assisted by a McKenzie friend, Mrs H. In his judgment, the judge later
commented that P. had been resourceful and skilful and received considerable
support from Mrs H. He had also given her considerable leeway in presenting
evidence without prior disclosure and in cross-examining witnesses. He
considered that her case had been fully heard and that the hearing had been
fair. He rejected the suggestion that had the mother been legally represented
the result would have been different.
On 8 March 1999, the judge made a care order. In reaching his
decision, he did not consider himself bound by the American conviction and
reached his own findings of fact on the available material, which included a
substantial volume of documents from America and expert reports. He concluded
beyond reasonable doubt that B.’s diarrhoea was caused by laxative abuse on the
part of his mother in the incident in issue in the criminal proceedings and on
a balance of probabilities that laxative abuse was the most likely cause of
B.’s diarrhoea on two further occasions.
“I am therefore in no doubt and so
find that [B] did suffer harm in the care of his mother. In my judgment that
harm was not limited to his physical health. I accept the argument of the local
authority that he also suffered serious psychological harm. ...”
As regarded S., while the judge accepted that P. had not put
S. at risk during her pregnancy and that the parents’ treatment of S. during
contact sessions had been exemplary, he found that P. suffered from a disorder
of personality and that such people were very difficult to treat and did not
change easily. He considered that P. was in a state of deep denial about what
had happened to her son B. and the potential risk that she posed to her
daughter S. He referred to the expert evidence “that to receive help P. would
need to accept that she remains a potentially dangerous person to S.” and “that
is impossible even to start where the mother is in denial to the extent that
this mother plainly is.” He found that C. was incapable of altering his
emotional perception of P. and would not accept that she was responsible for
harming her son B., though with a different woman as a partner he would have
been able to bring up and care for a child. He concluded that S.’s moral or
physical health would be endangered by leaving her with her parents.
On 15 March 1999, the same High Court judge heard the
application to free S. for adoption. According to the transcript of the
hearing, the respondents were named as P. and S. and it was noted that P. was
present. The final order of 15 March 1999 listed P., C. and S. as respondents.
According to the applicants, C. was present throughout and was specifically
asked in court if he consented to a freeing order being made, and C. indicated
that he was not.
At the commencement of the hearing, P. informed the court
that without legal representation she was significantly disadvantaged and was
being deprived of a proper opportunity to advance her case. The judge declined
to defer the proceedings, finding that she was capable of representing her
interests and that she would have been put on notice by her lawyers at an
earlier stage that the freeing application would follow the care order.
Balancing the parents’ interests against the need of S. to have her future
decided at the earliest possible opportunity, he considered S.’s interests
prevailed. On the issue of the freeing application, the judge concluded that
the parents were withholding their consent to adoption unreasonably as they
should have accepted in light of the previous proceedings that there was no
realistic prospect of the rehabilitation of S. to their care. He therefore
issued an order freeing S. for adoption. That permanently severed legal ties
between S. and her parents.
The judge refused P. leave to appeal against the order. She
renewed her application before the Court of Appeal. It was refused after a
hearing on 5 July 1999, where she and C. appeared in person. Though the
Court of Appeal noted that C. was not a party to the appeal, it referred to the
fact that C. had addressed the court at some length on the issues.
The last contact visit between P. and C. and their daughter
was on 21 July 1999.
On 2 September 1999, S. was placed for adoption with an
unknown couple.
On 13 October 1999, the local authority informed P. and C.
that S. had been placed with adopters. They requested their assistance in the
preparation of a “Life Story Book” for S. and stated that they wished to
establish indirect contact between them and S. via their letterbox scheme.
S. was adopted by an order made on 27 March 2000. P. and C.
were informed on 27 April 2000.
The adoption order made no provision for future direct
contact between S. and her parents. Any such contact was now at the discretion
of the adoptive parents. By letter dated 6 July 1999, the local authority
informed P. and C. that they could have limited indirect contact with S.,
namely, Christmas and birthday cards and presents (“letterbox contact”). They
sent a Christmas card and gift in December 1999 and a birthday card in May 2000.
By letter dated 17 November 2000, the local authority informed them that this
contact was to change at the request of the adopters to one letter from the
parents to the adopters once a year in July.
B. Relevant domestic law and practice
The Children Act 1989
Whenever a court determines any matter in relation to the
upbringing of a child, it must have regard to the provisions of the Children
Act 1989, section 1, which requires that the court’s paramount consideration
must be the welfare of the child.
The general duties of local authorities in relation to
children in their area “in need” are set out section 17 of the Act. The court
is empowered to make care orders or supervision orders where it is satisfied
that
(a) the child concerned is suffering, or is likely
to suffer, significant harm;
(b) the harm or likelihood of harm, is
attributable to the care given to the child, or likely to be given to him if
the order were not made; and
(c) that care is not what it would be reasonable
to expect a parent to give to him (section 31).
Where an application is made for a care order, the local
authority which is to take over the care of a child must set out the plan by
which it intends to meet the welfare needs of the child (including details of contact)
– the “care plan”. Government guidance at the time emphasised:
“Where a child is in the care of a
local authority, the Children Act 1989 places a duty on them to make all
reasonable efforts to rehabilitate the child with his or her family whenever
possible unless it is clear that the child can no longer live with his family
or that the local authority had sufficient evidence to suggest that further
attempts at rehabilitation are unlikely to succeed.” (LAC(98) 20 Appendix 4)
The courts’ approach is similar:
“The principle has to be that the
local authority works to support, and eventually to reunite, the family, unless
the risks are so high that the child’s welfare requires alternative family
care” (Lady Justice Hale in Re C and B (Children) (Care Orders: Future Harm)
[2000] 1 FLR 611)
The Adoption Act 1976
Adoption is the primary avenue in the United Kingdom by which
permanent alternative care is provided for children who cannot be brought up
within their own family. An adoption order, which is effectively, irrevocable,
gives parental responsibility to the adopters, extinguishes the pre-existing
parental responsibility and has the effect that the adopted child is treated in
law as if he or she were born as a child of the marriage of married adopters.
By virtue of section 16, an adoption order may not be made
unless the child is free for adoption, or both parents have consented or their
consent had been dispensed with on specified grounds.
Before a local authority can apply for an application to free
a child for adoption, the plan for eventual adoption must be placed before an
adoption panel. In the absence of parental consent, a local authority may apply
for a freeing for adoption order where the child is in the care of the local
authority. The test to be applied by the courts in determining whether or not
to dispense with parental consent includes the ground that the parent is
withholding agreement unreasonably (section 16(2)(b)). A recent judicial
approach to that test suggested that the judge should ask himself whether,
having regard to the evidence and applying the current values of society, the
advantages of adoption for the welfare of the child appeared sufficiently
strong to justify overriding the views and interests of the objecting parent (Re
C (A Minor) (Adoption: Parental Agreement: Contact) [1993] 2 FLR 260 –
Court of Appeal).
COMPLAINTS
1. The applicants, P. and C., complain under
Article 8 of the Convention of the law and practice applied to childcare and
adoption. They complain that the measures taken in this case deprived P. and C.
of any further family life with S. and were inconsistent with the aim of
reuniting them with their daughter.
They also complain, on behalf of themselves and their
daughter S., that no provision was made for continuing any form of direct
contact after the adoption took place and that indirect contact was
subsequently restricted to only one letter per year.
2. The applicants complain under Article 6 § 1 of
the Convention that P. and C. did not have access to court or a fair hearing in
respect of the freeing for adoption proceedings, where neither were legally
represented and where the judge refused an adjournment to find representation.
Complaint is also made in respect of the care proceedings, where P. was not
legally represented after 5 February 1999.
3. Under Article 12 of the Convention, the
applicants complain that the proceedings put immense strain on their marriage
and have prevented them from founding a family.
THE LAW
The applicants complain about the procedures followed in
respect of the taking into care and adoption of S. and about the lack of
provision of contact with her after adoption, invoking Articles 6, 8 and 12 of
the Convention.
Article 6 of the Convention 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 of the Convention
“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 ...
for the protection of health or morals, or for the protection of the rights and
freedoms of others.”
Article 12 of the Convention:
“Men and women of marriageable age
have the right to marry and to found a family, according to the national laws
governing the exercise of this right.”
A. The position of S. as applicant in the proceedings
before the Court
The parties’ submissions
The applicants, P. and C., have complained on behalf of their
daughter S. concerning the failure to make post-adoption provision for any form
of direct contact with her and the reduction in indirect contact.
The Government submit that these complaints have been submitted
more than six months after the adoption was completed on 27 March 2000. In any
event, they dispute that the applicants can claim to bring an application on
behalf of S. as they retained no residual parental authority over her and had
no standing domestically to represent S. Parental responsibility had been
transferred to the adoptive parents and they would be the appropriate
representatives of S. in any proceedings concerning her welfare. Similarly,
this case could be distinguished from the case of Scozzari and Giunta
v. Italy ([GC] nos. 39221/98 and 41963/98, ECHR 2000-VIII), where the
birth mother’s rights had only been temporarily suspended and was in dispute
with the local authority as to their compliance with the Convention regarding
her children in care. There was a clear conflict of interest between the
applicants and S., who was removed due to the risk of harm posed to her if left
in their care, and it cannot be said that S. would be deprived of effective
protection of her rights if the applicants were not able to bring complaints on
her behalf.
The applicants claim that their complaints on behalf of S.
were lodged within time on 25 September 2000. Further, it is necessary for them
to represent her in these proceedings as the adoptive parents would be out of
time themselves. Furthermore, there is a conflict of interest between S. and
the adoptive parents since, without the freeing order and subsequent adoption,
they would not have been able to adopt her. The local authority was also
closely implicated throughout in the measures which the applicants claim
infringed the rights of themselves and S. Nor was there a conflict of interest
between the applicants and S. on every issue. They had developed ties and their
contact sessions had been excellent. Separate from consideration of whether
they should have retained custody of S., is whether they should have been
allowed to maintain direct ties instead of severing their relationship
entirely. In the absence of any other person willing and ready to represent her
interests in that respect, they submit that as her birth parents they should be
able to do so.
The Court’s assessment
Concerning the six months rule
The Court notes that the complaints first introduced by the
applicants, P. and C., on 23 December 1999 related to their own claims under
Articles 6, 8 and 12 of the Convention. By letter of 25 September 2000, they
claimed that the failure to take measures to allow for contact after the
adoption infringed not only their rights under Article 8 but also those of S.
The Court recalls that the adoption order was made on 27
March 2000. This must be regarded as the final decision in relation to this
complaint for the purposes of Article 35 § 1 of the Convention. In these
circumstances, as the substance of the complaint was raised on 25 September
2000, it has been introduced within the six-month time limit imposed under that
provision.
Concerning P. and C.’s standing to
represent S. before the Court
The Court observes that following the adoption order of 27 March
2000 the legal parental ties have been severed between P. and C. and their
daughter S. This factor is not however decisive of whether P. and C. are able
to introduce complaints on behalf of S. Conditions governing the individual
applications under the Convention are not necessarily the same as national
criteria relating to locus standi. National rules in this respect may
serve purposes different from those contemplated by Article 34 and, while those
purposes may sometimes be analogous, they need not always be so (see, mutatis
mutandis, the Norris v. Ireland judgment of 26 October 1988, Series A no.
142, p. 15, § 31).
The Court re-iterates the principle that the object and
purpose of the Convention as an instrument for the protection of individual human
beings requires that its provisions, both procedural and substantive, be
interpreted and applied so as to render its safeguards both practical and
effective (see amongst other authorities, Loizidou v. Turkey judgment of 23
March 1995, Series A no. 310, pp. 26-27, §§ 70-72). As the Commission has
previously pointed out, the position of children under Article 34 (formerly
Article 25) qualifies for careful consideration, as children must generally
rely on other persons to present their claims and represent their interests,
and may not be of an age or capacity to authorise any steps to be taken on
their behalf in any real sense (no. 23715/94, S.P., D.P. and T. v. the United
Kingdom, decision of 20 May 1996, unpublished, Commission report of 11 April
1997, DR 89–A, p. 31). The Court agrees that a restrictive or technical
approach in this area is to be avoided.
In this case, the Government have pointed out that the
appropriate representatives for S. are the adoptive parents and that P. and C.
have a conflict of interest with S., given that the findings of the courts were
that she would be at risk of harm if returned to their care. It is, in their
view, neither necessary or appropriate for P. and C. to act on her behalf.
The Court finds that the key consideration in such a case as
the present is that any serious issues concerning respect for a child’s rights
should be examined (see, mutatis mutandis, Scozzari and Giunta v.
Italy [GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII, § 138). It is
claimed on behalf of S. that since the freeing for adoption proceedings she has
been deprived of the opportunity to maintain a meaningful relationship with her
birth parents. It cannot be disputed that this is a right which S. should enjoy
without unjustified interference. The necessity and proportionality of the
interference have been put in issue in this application. The adoptive parents
have, according the Government, objected to direct contact between P. and C.
and S. and it was their decision to restrict indirect contact to one letter per
year. In the circumstances, it could not be expected that they introduce an
application on behalf of S. raising the point. As regards the apparent conflict
of interest between S. and her parents, the Court has previously found that children
should be able to apply to the Court even, or indeed especially, if they are
represented by natural parents who are in conflict with the authorities,
criticising their decisions and conduct as not being consistent with the rights
guaranteed by the Convention. Otherwise, in the event of a conflict over a
minor’s interests between a natural parent and others persons appointed by the
authorities to act as the child’s guardian, there is a danger that some of
those interests will never be brought to the Court’s attention and that the
minor will be deprived of effective protection of his rights under the
Convention (Scozzari and Giunta v. Italy, cited above). Therefore, given
the issues raised in this application and the standing of P. and C. as S.’s
natural parents, P. and C. may apply to the Court on her behalf in order to
protect her interests.
The Court accordingly rejects the Government’s submissions on
this matter.
B. Exhaustion of domestic remedies
The Government submit that C., the father, has not exhausted
domestic remedies as he withdrew from the care proceedings on 4 February 1999.
He also did not, in their view, appear as a party in the freeing for adoption
proceedings. The court decisions indicated that P. was a party and present,
while the Court of Appeal noted that C. was not an applicant before them and
could hardly be due to his earlier withdrawal.
The applicants submit that C. only withdrew from the care
proceedings, not from the freeing for adoption proceedings. He appeared and
made submissions to the court in the latter and was present throughout. In
court, he was asked whether he consented to a freeing order being made and he
indicated that he did not do so.
The Court recalls that Article 35 § 1 of the Convention
requires those seeking to bring their case against a State to use first those
remedies provided by the national legal system, including available and
effective appeals. The complaints intended to be made subsequently before the
Court should have been made to the appropriate domestic body, at least in
substance and in compliance with the formal requirements laid down in domestic
law and, further, that any procedural means that might prevent a breach of the
Convention should have been used (see the Cardot v. France judgment of 19 March
1991, Series A no. 200, p. 18, § 34). Moreover, Article 35 § 1 must be applied
with some degree of flexibility and without excessive formalism; in reviewing
whether it has been observed it is essential to have regard to the particular
circumstances of each individual case (Cardot v. France judgment, loc. cit.).
C., it is accepted, withdrew from the care proceedings which
concerned, inter alia, whether S. should remain in care or be returned
to her parents. His reasons for doing so were health-related and the lack of
prospects of success in obtaining a placement of S. with the family.
Nonetheless, his wife P. continued in the care proceedings, putting forward the
case for S.’s return home and was unsuccessful. Further, in making the care
order, the judge expressly found that C. would in the particular circumstances
of the case be incapable of bringing up and caring for S. While it was also P.
who lodged the appeal against the freeing for adoption order, it is also
apparent that C. attended the appeal hearing and addressed the court,
expressing his lack of consent to the adoption.
The Court considers therefore that while formally C. was not
a party to the conclusion of the care proceedings or in the appeal proceedings
concerning the freeing for adoption order, his claims were in substance brought
to the attention of the courts. In this particular case, P. and C. are making
the same claims before the Court, and to hold that C. had failed to exhaust would
in the circumstances be artificial. The Government do not suggest that if C.
had acted in any other way the result of the proceedings would have been
different.
The Government’s argument that C. has failed to comply with
the requirement imposed by Article 35 §1 in respect of exhaustion of domestic
remedies is, for the above reasons, rejected.
C. The substantive complaints
The Government’s submissions
1. The Government submit, under Article 8 of the Convention,
that while they accept that the care order and freeing for adoption order
amounted to interference with rights protected under Article 8 § 1, any such
interference was “in accordance with the law”, pursued the legitimate aim of
protecting the health of S. and her rights and freedoms and was necessary in a
democratic society, pursuant to the second paragraph of this provision.
They submit that the care order was supported by relevant and
sufficient reasons, pointing to the findings of fact reached by the judge
regarding P.’s actions in the United States in administering laxatives to her
son B. They argue that cases involving MSBP are particularly difficult to
evaluate and the authorities should be allowed the widest possible margin of
appreciation in assessing the risks and the appropriate measures. They deny
that there was any lack of regard to the prospect of keeping the family
together, stating that adoption and long-term fostering are a last resort and
only take place when placement with the family is precluded. The practice of
“contingency planning” whereby the local authority runs twin track options,
rehabilitation within a limited time framework or adoption outside the family,
pursues the interests of the child in ensuring a secure future. It is not the
case that the court had no option but to make a care order or could not go
behind the care plan, if it had considered that other measures were possible,
e.g. it could have refused a final care order and made interim care orders
pending further assessments.
As regarded the freeing for adoption order, they emphasise
the importance of avoiding delay once the plan for a child has been identified
and the damage that can be done to children who linger in temporary care. The
hearing of the freeing for adoption in tandem with, or shortly after, the care
order was fully justified in the interests of the child and fair to the parents
and the child. Once the decision was taken that the best interests of S. were
served by placement away from her family for adoption, the priority was to
achieve that at the earliest opportunity to allow her the best prospect of
settling in an adoptive home. Thus the plan for adoption was justified to meet
her own right to a family life. Any other arrangements which were not final,
would inevitably have been significantly less stable and secure than adoption,
with the potential for confusion about her relationships. Given the findings
that the applicants could not provide a safe and satisfactory upbringing for
S., the measures taken, though they involved permanent and irrevocable legal
separation, were proportionate to the pressing social need of protecting S. and
providing her with a secure and stable family life.
As regarded contact, it would have been possible for the court
to make an order for contact at the same time as the freeing order. However,
once S. was placed with her adoptive family, the priority from her perspective
was the establishment and reinforcement of her new family. Notwithstanding the
positive contact with the applicants, it was assessed that further direct
contact was not in her interests as neither parent accepted the outcome or the
validity of the reasons; at any direct contact meeting it was likely that their
views on this would be communicated, causing confusion and possibly undermining
the placement; any direct contact would have required very close supervision to
ensure that S. was not at risk of harm; and, furthermore, the adopters were
opposed to direct contact. Insofar as complaint is made of the reduction in the
indirect contact since adoption, they point out that the local authority no
longer has any parental responsibility and in this matter the decision is
essentially for the adoptive parents. They have no power to order contact or
impose any specific terms on the adoptive parents.
2. Insofar as the applicant P. complains under
Article 6 of the lack of legal representation in the care and freeing for
adoption proceedings, the Government submit that she was provided with legal
aid. However, her lawyers withdrew as they were being required to conduct the
case unreasonably. The judge carefully considered the applicant’s application
for an adjournment to allow her to instruct new lawyers and balanced all the
relevant factors. The judge found that she was able to conduct her own case
adequately and would be assisted by counsel for the other parties, while he
himself allowed her considerable leeway. He concluded that the result of the
proceedings was not affected by any lack of legal representation. In the
circumstances and with particular regard to the expert evidence that S.
required her long-term future to be settled by her first birthday, the
applicant was not deprived of fair and effective access to court.
3. Concerning Article 12 of the Convention, the
Government submit that measures which are justified under Article 8 of the
Convention cannot raise separate issues under this provision. In any event,
Article 12 does not guarantee a separate right to have children or to retain
contact with those children.
The applicants’ submissions
1. The applicants, P. and C., complain under
Article 8 of the Convention that the domestic law and practice on child care
and adoption law is contrary to this provision, in particular the practice of
instituting adoption proceedings together with care proceedings in respect of
babies and the use of freeing for adoption orders which are draconian and
irreversible. There are in practice no alternatives offered to adoption.
They submit that the measures taken in this case were harsh
and excessive. Since P. was in bed in hospital following caesarean section,
they question the necessity of seizing the baby at once. No acknowledgement was
ever given that such a harsh measure was bound to cause severe shock and, in the
proceedings that followed, exacerbate P.’s defensive reaction. The measures
together deprived P. and C. of any further family life with S. and were
inconsistent with the aim of reuniting them with their daughter. The local
authority, whose attitude was unremittingly negative towards them, ignored the
parents’ excellent record of contact with S., their stable marriage and the
fact that S. was placed with experienced foster parents. They failed to give
any consideration to the possibility of long term supervised contact or future
rehabilitation. They contrast the approach of the Californian court which never
terminated P.’s ties with her son B. No steps were taken, despite expert
recommendation, to obtain an assessment to see if P. would be suitable for family
therapy. They dispute that the reason given, namely P.’s highly defensive
response to the litigation, was sufficient for that failure, as the authorities
were aware that P. was undergoing an exceptionally traumatic experience. Nor
was any assessment made of the family together, despite the very positive
relationship that had developed on contact visits. In the absence of
alternative proposals from the local authority, the judge had no alternative
but to make a care order.
The way in which the care proceedings and freeing S. for
adoption were allied together, decreased any possibility of exploring future
rehabilitation and reunification. S.’s welfare did not require the authorities
to move so quickly, most adoptions taking place within two, rather than one
year. Even assuming P. and C. were not able to care for S. at that stage in her
life, this did not justify the freeing for adoption order. There had already
been a degree of natural bonding through contact visits which was brought to an
end without any sufficient reasons to show why this drastic course was in S.’s
best interests. The possibility of long-term fostering with continued direct
contact, or adoption with continued direct contact, was never properly
investigated, assessed or examined. They deny the Government’s assertion that
such an arrangement would not have been sufficiently stable or secure. Indeed
it would have allowed S. to retain the comfort and security of knowing her
parents loved her, avoided any damaging sense of abandonment and reinforced
S.’s sense of family and personal identity.
The complaints that there were no sufficient steps taken to
provide for direct contact after the adoption, and about the restriction of
indirect contact, are made on behalf of themselves and their daughter S. The
authorities, in the applicants’ view, showed an inflexible approach on this
matter. The applicants deny that such contact would have been detrimental to
S., pointing out that, notwithstanding the proceedings, they had always put
aside their personal feelings in contact sessions to concentrate on S. and her
needs, and it could not be assumed that P. and C. would tell her anything
harmful in the future. As regarded any alleged risk to S., it would not have
been onerous to ensure that a responsible carer supervised the visits and, to
the extent that the Government appear to rely on the adopters’ opposition to
contact, no reasons for this are given and, in view of research on the subject,
the adopters’ opposition to contact was probably influenced by the negative
views of the local authority.
2. The first applicant, P., submits under Article
6 of the Convention that when her legal team withdrew from the care
proceedings, the judge could have granted her an adjournment to obtain fresh
representation, which would have avoided unnecessary delay by setting a limited
time or directing the parties to narrow the issues. The judge could also have
given directions for an expedited date to bring the case back within a
reasonable time. Further, the unusual speed of the case was not necessitated by
S.’s welfare, as she had been happy where she was and was not involved in the
proceedings. The judge did not take into account the impact on P. of the stress
which she had been suffering, and made unfounded assumptions about her ability
to function in the court room. The decision to refuse an adjournment was
therefore not proportionate. In any event, P. submits that she had not changed
her approach to the case, her legal team had acted bizarrely in withdrawing at
the last moment and the judge could have refused their application to do so.
The decision to hear the freeing for adoption proceedings within a week was
unnecessary, and the lack of adjournment to allow the applicants to find legal
representation deprived them of an adequate opportunity to take advice and to
decide what submissions to make on contact.
As a result, without legal representation, the applicants P.
and C. were left at a severe disadvantage, P. in the care proceedings and both
P. and C. during the freeing for adoption proceedings.
3. Concerning Article 12 of the Convention, the
applicants P. and C. argue that having children is an essential part of the
right guaranteed. On the facts of this case, the authorities’ actions have had
such an invasive and deterrent effect as also to infringe this provision.
The Court’s assessment
The Court has examined the applicants’ complaints and the
submissions of the parties and finds that serious questions of fact and law
arise, which are of such complexity that their determination should depend on
an examination of the merits. The application cannot, therefore, be regarded as
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
No other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits
of the case.
S. Dollé J.-P. Costa
Registrar President