EUROPEAN
COURT OF HUMAN RIGHTS
CASE
OF P., C. AND S. v. THE
(Application
no. 56547/00)
JUDGMENT
This judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be subject to editorial
revision.
In the case of P., C. And S. v. the
The European Court of Human Rights (Second Section), sitting 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 Mr T.L. Early, Deputy Section Registrar,
Having deliberated in private on 26 March and on
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case originated in an application
(no. 56547/00) against the United Kingdom of Great Britain and Northern
Ireland lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three
United Kingdom nationals, Mrs P., Mr C. and Ms S. (“the applicants”), on
23 December 1999 and 25 December 2000 respectively.
2. The applicants, who had been granted legal aid,
were represented by Mr R. Stein, a solicitor practising in
3. The applicants alleged that the measures taken by
the authorities in removing S. at birth from her parents, placing her in care
and freeing her for adoption breached Article 8 of the Convention and that the
procedures followed were in breach of Article 6 of the Convention. They also
invoked Article 12 of the Convention.
4. The application was allocated to the Third Section
of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.
5. On
6. By a decision of
7. The applicants and the Government each filed
observations on the merits (Rule 59 § 1).
8. A hearing took place
in public in the
There appeared before the Court:
(a) for the Government
Mr H. Llewellyn, Agent,
Mr A. McFarlane, qc, Counsel,
Mr T. Eicke, Counsel,
Ms L. Harrison,
Ms J. Ridgway,
Ms J. Gray,
Ms C. McCrystal, Advisers;
(b) for the applicants
Ms B. Hewson, Counsel,
Mr D. Casey, Counsel,
Mr R. Stein, Solicitor,
Mrs N. Mole,
Mr C. Stockford,
Ms K. Weed, Advisers;
Mrs P.,
Mr C., Applicants.
The Court heard addresses by Ms Hewson and Mr McFarlane.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. P., born in 1958, is
a citizen of the
A. Events in the United States of America 1976-1996
10. In January 1976, P., then living in the
11. Between December 1990 and January 1994, B. was
referred to his general practitioner for some 47 complaints.
12. In March-April 1993, B. was taken for examination
to hospital on numerous occasions for complaints of diarrhoea and fever and on
each occasion he was found to be in a normal condition. When on
13. On
14. On
15. P. was charged with a felony offence under
section 273A(a) of the Californian Penal Code of cruelty towards B. and
endangering B.'s health. A report prepared by Dr Schreier stated that P.
suffered from MSBP and that she had victimised B. over several years, causing
him severe diarrhoea, possible vomiting, weight loss and multiple nontrivial
procedures and hospitalisations. On
16. During the divorce proceedings, P. was required
to have therapy as a condition of getting custody of B. and saw a therapist
from 1992-end of 1993. From late 1992, she was prescribed an anti-depressant by
a psychiatrist and saw him regularly to review the medication. She also
consulted with psychiatrists during the criminal trial. From about April to
December 1995, she saw a psychologist twice a month for therapy.
17. On
18. During 1996, P. met her present husband C., a
qualified social worker who was studying for a doctorate in philosophy and
researching into stories of women wrongly accused of MSBP.
B. P.'s pregnancy and first contacts with the social
services in the
19. In November 1996, in breach of the probation
order, P. came to visit C. in the
20. Rochdale Metropolitan Borough Council (“the local
authority”) became aware of the pregnancy after P. had taken steps with a view
to obtaining an annulment of her previous marriage and her ex-husband had
informed the District Attorney who in turn made contact with the authorities in
the
21. Social workers were in contact with P. and C.
from January 1998. A letter was sent to arrange a meeting. Prior to the
proposed meeting, there were several exchanges on the telephone. C. considered
that the social services should provide more detailed information before a
meeting took place and made a list of requirements regarding access to files
and copies of documents. Tension arose when the social worker requested that P.
give her date of birth in order to confirm that she was the person concerned in
the information from the
22. On 21 January 1998, the applicants' solicitors wrote
to the social services requesting that they provide information to both
themselves and P. directly, concerning inter alia the reason for the
proposed visit, details of any information in their possession, forms for
applying for access to social work files, specific details of child protection
concerns in the case and a list of every person with whom P. had been
discussed.
23. On
24. There was further correspondence between the
local authority and the applicants' solicitors concerning the appointment of an
expert to assess the risk to the unborn child, pursuant to section 47 of the
Children Act 1989 (“the section 47 assessment”). By letter dated
25. On
26. By letter dated
27. On
28. On about 16 March 1998, Dr Eminson agreed to act
as expert in the assessment to take place.
29. On 18 March 1998, the applicants' solicitors
wrote to the local authority pointing out that their request for an agreed
letter of instruction and list of documentation given to the expert was based
on good practice and procedure and that, though there were no care proceedings,
they had assumed the same principles would be applied. They stated that P.
could not be expected to go into a meeting blind to the specific points the doctor
had been asked to address and that they needed a list of documentation in order
to assess whether they wished to provide the expert with anything further.
30. By reply of the same date, the local authority
solicitor stated that a section 47 assessment procedure was at the entire
discretion of the local authority and that different principles applied than in
care proceedings. However, they were prepared to disclose the list of documents
sent to Dr Eminson and set out the questions which they would ask her to
address.
31. On
32. On
“reason to believe that the baby would
be at risk of significant harm if left in the care of his/her parents; there
has been no genuine co-operation from the parents and it would be impossible
for the Social Services... to manage the risk without legal jurisdiction which
includes removal in the first instance. An application for interim care
proceedings would require notice and [they had] reasons to believe that the
parents would evade the authorities.”
The address of the foster placement was to be kept secret to
avoid harassment or an attempt to remove the child. The parents were to be told
about the intention to take legal action in general terms.
33. On
34. On
35. On
36. Notes dated
37. By
C. The birth of S. and the emergency and care proceedings
38. On
39. The local authority applied for an emergency
protection order at about
40. At about
41. A contact visit was arranged on
42. P. remained on the delivery unit due to concerns about
her blood pressure. It was noted by her consultant that she was very clearly
distraught about events. She was prescribed drugs to suppress lactation and
anti-hypertensive medication. She was discharged on
43. The local authority meanwhile applied to the
court for a care order under the Children Act 1989.
44. P. and C. were allowed supervised contact with
S., initially three times a week. The first visit occurred on
45. P. and C. developed an excellent relationship
with their baby daughter S. The notes made by the supervising officials were
positive and complimentary. The paternal grandparents were also observed to
have caring and attentive relationships with her.
46. On
47. On
48. Dr Eminson issued her report on 29 June 1998,
stating that in order to assess the risk to S. it would be necessary to obtain inter
alia a psychiatric assessment of P. and her capacity to change and a
comprehensive social work assessment of each family member, including the
grandparents, as regards their capacity to care for and protect S.
49. On
50. In a report dated
51. In his report dated 28 September 1998 for the
guardian ad litem appointed by the court to represent S., Dr Davis, a
consultant paediatrician, found inter alia a clear and chronic pattern,
including unexplained symptoms suggesting severe disease presented by P.; a
definitive episode of poisoning; non-appearance of symptoms when the child was
supervised by others and resolution of the health problems in the child after
separation from the mother; extensive inaccuracies and inconsistencies by P.
when repeating her history to different doctors; and exceptionally frequent
medical attendance from mother and children. His opinion was that B., and to
lesser extent A., had been victims of child abuse on the fabricated illness
spectrum. The tendency to fabricate appeared to be ongoing (references were
made to P.'s conduct during her pregnancy with S., e.g. she had complained of
ulcer symptoms but no ulcer was found, and she had referred to a stomach tumour
which was presumably a besore1 removed
in 1994). His view, strongly expressed, was that the risks to S. of
rehabilitation with P. outweighed the advantages.
52. 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.
53. On
54. On
(i) It was noted that at meetings with P., she had
been superficially co-operative. She gave the view that the test which found a
laxative in B.'s stool could have been a false positive. She accepted that B.
had been hospitalised too much and that she had allowed emotional harm to come
to him. Her explanation was that she was a victim of the divorce process and
considerable financial stress. The only acknowledgement made by P., which
appeared to take responsibility for exaggerating B.'s illness, was when she
stated that she had exaggerated the number of loose stools that he had had.
There was a sense of evasiveness and minimisation, even a degree of
trivialisation of what was discussed. It was difficult to tell whether some
events referred to by P. were a constructed reality or had really happened.
(ii) As regards C., his research was attempting to
show that health practitioners could develop a perspective where they created a
notion that the parent was inducing a child into an illness state and
demonstrating the misuse and fallibility of medical authority. C. stated that
there was nothing to suggest that P. would harm S. He was prepared to look
after S. alone if necessary. Together, P. and C. stated that they would
undertake any therapeutic work with a view to obtaining care of S., without
however acknowledging that there was a problem as far as P. was concerned.
(iii) As regards the paternal grandparents, they
tended to agree with the parents' analysis of the situation and found it hard
to confront the situation that P.'s actions had given major concerns about her
potential to harm. There were positive factors in their favour (e.g. their
commitment and desire to protect S.). However, the main concern if S. was
placed with them would be S.'s adolescent phase of development due to their
ages.
(iv) The report found that P. had a personality
disorder, including a factitious disorder disclosed by her gross exaggeration
of having had ovarian cancer and statements about miscarriages as well as the
fabrication and exaggeration of B.'s symptoms. While P. had indicated a
willingness to accept therapeutic work, which would have to be prolonged and
required considerable motivation to change, she had not accepted how extensive
such change needed to be. As regarded a possible referral to the Cassell
hospital, it was noted that this would require considerable commitment on the
part of both parents. Though the couple had indicated a willingness to enter
such a therapeutic setting, P.'s level of motivation was limited. It might
however be advantageous for P. to be admitted for a further detailed assessment
at a special clinic as to whether a referral to
(v) The report concluded that C. was not himself a
direct risk to S. but was indirectly so. He was accommodating his wife's views
and had a limited understanding of the local authorities' concerns. Similarly,
the grandparents would be protective of S. if in their care, but as they would
be in their 70's when S. was 14 years old, they would have increasing
difficulties in meeting her growing emotional needs. It would therefore be
difficult to consider them as possible long or short-term carers because S.
needed to be in a secure long-term placement by her first birthday. As regards
contact, the fact that the fabrication of symptoms was not to a life
threatening degree meant that contact would need less rigorous supervision than
in circumstances of more life-threatening abuse.
55. On
56. The local authority care plan dated
D. The hearing of the application for a care order in the
High Court February-March 1999
57. At a hearing, beginning on
58. On
59. On the same date, P.'s legal representatives
(leading counsel and solicitors) withdrew from the case, 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.
Her legal aid had not in fact been withdrawn as the judge made clear in his
judgment. The legal aid certificate could not be formally discharged until P.
had been given the opportunity to show cause why that should not happen.
60. P. asked for an adjournment until
61. The judge refused the adjournment. As a result of
this decision, P. conducted her own case, assisted by a “McKenzie friend”, Mrs
H. The applicant stated that she found conducting her own case immensely
difficult. At one stage, she told the judge that she simply could not continue
because she was so distressed. That was after cross-examining her own husband
C., which she found very painful. However, the judge said that she should carry
on. The solicitor for the guardian ad litem and a social worker visited
P. that evening to persuade her to carry on.
62. In his judgment, the judge explained his refusal
of an adjournment:
“In the first place I was satisfied
that the mother had a very clear grasp of the voluminous documentation, at
least as good and if not better a grasp than the lawyers in the case. Secondly,
it was clear to me from the documents that the mother, who is an intelligent
woman, was fully able to put her case in a clear and coherent way, an assessment
that has been amply borne out by the hearing itself.
Thirdly, I was confident that the Bar,
in the form of leading and junior counsel for the local authority and the
guardian ad litem, would not only treat the mother fairly but in the tradition
of the Bar would assist her in the presentation of any points she wished to
advance, insofar as it would be professionally proper for them to do so. Once
again that assessment has been fully justified by the conduct of counsel during
the hearing. As examples, the local authority both facilitated and paid for the
attendance of Dr Toseland, consultant toxicologist, to attend as part of the
mother's case. Junior counsel for the local authority... struggled manfully to
ensure that the mother had a complete set of the ever growing documentation.
There were other examples.
Fourthly, the outcome of the case
seemed to me to hinge or be likely 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.
Finally, and most importantly, I was
concerned about the prejudice to [S.] of what would have had to have been a
very lengthy adjournment. Section 1(2) of the Children Act expresses the
general principle that delay in resolving a child's future is prejudicial to
that child's welfare. In this particular case intensive preparation for the
hearing had been going on effectively since [S.'s] birth in May 1998 and up
until the outset of the hearing before me the mother had had the benefit of
advice from her lawyers, latterly of course from leading counsel. An
adjournment would have involved a very substantial delay in resolving [S.'s]
future.
The hearing was estimated to last, and
did indeed, last something in the order of 20 working days. A fresh legal team,
assuming legal aid was restored, would have needed a substantial amount of time
to master the voluminous documentation and to take instructions. 20 days of
court time simply cannot be conjured out of thin air.
Furthermore the evidence of Dr ...
Bentovim, the consultant child psychiatrist jointly instructed to advise me,
amongst other things, on [S.'s] placement, was that a decision on her long term
future needed to be both made and if possible implemented before her first
birthday.
The consequence of the events I have
described was that the mother has been obliged to conduct her case in person
with the assistance of a McKenzie friend Mrs [H.]. In their closing submissions
Mr David Harris, Q.C. and Miss Roddy for the guardian ad litem paid
tribute to the manner in which the mother had conducted her case. They
described her as fighting bravely, resourcefully and skilfully for the return
of her daughter. I would like to echo that tribute. I would also like to
express my gratitude to the mother's McKenzie friend... who was clearly a
considerable support to the mother throughout the case.
If the mother had been represented by
counsel her case would, I think, have been conducted differently, but I am
entirely satisfied that the result would have been the same. As so often
happens the mother was given a latitude which would not be given to a litigant
who was legally represented. For example, I allowed her to call a witness,
Professor Robinson, who had not provided a statement prior to the hearing. I
was also prepared for her to call a consultant psychologist who had given
evidence in the American proceedings, Dr. [P.] who in the event was unable to
attend. I also allowed the mother to cross-examine witnesses twice... I have
throughout the hearing endeavoured to ensure that the mother was treated
fairly. ....
I am the first to acknowledge that the
court room is not a friendly environment and ... that those who are not used to
it find it difficult. However much experience the mother may have had of the
legal system in the
It is my judgment that the mother's
case has been fully heard and that the hearing has been fair... I reject any
suggestion that had the mother been legally represented the result would have
been different.”
63. On
“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. ...”
64. 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
personality disorder, 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 noted that Dr Bentovim had found a small
acknowledgement about her role in B.'s illness, but that P. had challenged the
accuracy of his report on this point and embarked on a high risk strategy of
launching an outright attack on the American evidence.
“At the end of a very careful and
thorough cross-examination by the guardian ad litem, Dr Bentovim
agreed... that given the depth and longevity of the mother's state of denial,
and given that the father had embraced it fully, the time scale for any
therapeutic work with the mother designed to bring her to a state of
understanding of and ability to address the risk posed to S. was way outside
the time scale during which S. could be kept waiting for a permanent placement.
Dr Bentovim's conclusion, reached I think with some regret, was that in the
circumstances there could be no question of reunification of S. with her
mother.”
65. The judge found that C. was incapable of altering
his emotional perception of P. or of accepting 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. The direction of the case could
have been altered if C. could have acknowledged that there was a serious risk
to be guarded against. C. was dominated by the mother and unable to put S.'s
interests and the need to protect her first. He concluded that S.'s moral or
physical health would be endangered by leaving her with her parents.
E. The hearing in the High Court of the application to
free S. for adoption and subsequent appeals
66. On
67. 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. Both P. and
C. had valid legal aid certificates in force. The judge declined to defer the
proceedings, finding that P. 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. Though he noted that there
might appear to be “an element of railroading”, on 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 the
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. As regards
contact, he stated:
“I'm assured by [the local authority]
that there will be conventional letterbox contact. But it will in due course
(if an adoption order is made) be essentially a matter for the adoptive parents
as to precisely what contact [S.] has with her natural family.”
68. The judge refused P. leave to appeal against the
order. Her renewed application before the Court of Appeal was refused after a
hearing on
F. Adoption and arrangements for contact
69. The last contact visit by P. and C. with S. was
on
70. On
71. S. was adopted by an order made on
72. 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
II. RELEVANT DOMESTIC LAW AND PRACTICE
The local authority's duty to investigate
73. Section 47 of the Children Act 1989 provides:
“(1) Where a local
authority...
(b) have reasonable cause to
suspect that a child who lives, or is found, in their area is suffering, or is
likely to suffer, significant harm,
the authority shall make, or cause to
be made, such enquiries as they consider necessary to enable them to decide
whether they should take any action to safeguard or promote the child's
welfare.”
Other provisions of the Children Act 1989
74. 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 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/her 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/her (section 31).
75. 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 authority has sufficient evidence to suggest that further attempts
at rehabilitation are unlikely to succeed.” (LAC(98) 20 Appendix 4)
76. The courts' approach was 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 Order: Future Harm) [2000] 1
FLR 611)
The Adoption Act 1976
77. Adoption is the primary avenue in the
78. 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.
79. Before a local authority can apply for an
application to free a child for adoption, the plan for 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 consider
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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
80. Article 6 of the Convention provides as relevant:
“1. In the determination of
his civil rights and obligations ..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal
established by law....”
A. Arguments of the parties
1. The applicants
81. The first applicant, P., submitted that the
interests of justice required that she be legally represented in proceedings
which had such serious consequences for her. 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. She was unable to conduct her own case
adequately and it was unrealistic to suppose that she could be assisted by
counsel for the other parties, who were completely opposed to her submissions.
The decision to refuse an adjournment was therefore not proportionate.
82. In any event, P. submitted 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 also unnecessary, and the lack of adjournment to allow P. and
C. to find legal representation deprived them of an adequate opportunity to
take advice and to decide what submissions to make on contact. The transcript
of the judgment in the care proceedings was not yet available by the time of
the freeing application, which any lawyer would have needed in order to act in
the case. This area of law was complex and the applicants did not know how to
address the court on the legal test for freeing. Nor did they understand that
they were entitled to seek an order for contact in the freeing proceedings
under section 8 of the 1989 or that, after a freeing order was made, they could
not apply for contact without the leave of the court, which was in practice
impossible to obtain at that stage.
83. 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.
2. The Government
84. The Government submitted that P. had been
provided with legal aid but 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, in order
to prevent damage to S., any decision on her long term future had to be both
made and if possible implemented before her first birthday, the applicant was
not deprived of fair and effective access to court.
85. The Government argued that, as a matter of
domestic law, it was required to deal with child cases with a view to avoiding delays
that were likely to prejudice the welfare of the child. Any adjournment of the
case would inevitably have meant a significant delay, having regard to the
availability of the numerous experts involved in the case and the requirement
to find another continuous period of four weeks before any High Court judge
(let alone Mr Justice Wall). If a decision to adjourn had been taken on
86. The Government disputed that it was always
necessary for parents in child care cases to be represented in order for the
proceedings to be fair. In this case, everyone involved in the proceedings
(save the applicants) were agreed that the mother had had a fair hearing and
had been able to present her case properly and satisfactorily, including the
leading counsel for the guardian ad litem who was now a judge. Though it
was never asserted that P. would have derived no benefit from legal representation,
any such benefit would have been limited, inter alia, as the outcome of
the case hinged to a significant degree on the cross-examination of P., where
her lawyers would not have been able to give her much assistance.
87. As regards the freeing proceedings, the
applicants would have had advice from their legal representatives in
preparation for both sets of proceedings. C. had withdrawn from the care
proceedings but, if he had not done so, continuing legal representation would
have been available. The speed at which the freeing proceedings followed the
care order was not unusual in the light of the need to avoid any unnecessary
delay that might have a negative impact on S.'s welfare. The issues which arose
would have been clear from the evidence submitted in the care proceedings and
there is no indication, that despite the lack of legal representation, P. and
C. were unable to participate effectively in the freeing for adoption
proceedings.
B. The Court's assessment
1. General principles
88. There is no automatic right under the Convention
for legal aid or legal representation to be available for an applicant who is
involved in proceedings which determine his or her civil rights. Nonetheless
Article 6 may be engaged under two inter-related aspects.
89. Firstly, Article 6 § 1 of the Convention embodies
the right of access to a court for the determination of civil rights and
obligations (see the Golder v. the United Kingdom judgment of 21 February 1975,
Series A no. 18, p. 18, § 36). Failure to provide an applicant with
the assistance of a lawyer may breach this provision, where such assistance is
indispensable for effective access to court, either because legal
representation is rendered compulsory as is the case in certain Contracting
States for various types of litigation, or by reason of the complexity of the
procedure or the type of case (see Airey v. Ireland judgment of 9 October 1979,
Series A no. 32, pp. 15-16, §§ 26-28, where the applicant was unable to
obtain the assistance of a lawyer in judicial separation proceedings). Factors
identified as relevant in the Airey case in determining whether the applicant
would be able to present her case properly and satisfactorily without the
assistance of a lawyer included the complexity of the procedure, the necessity
to address complicated points of law or to establish facts, involving expert
evidence and the examination of witnesses, and the fact that the subject-matter
of the marital dispute entailed an emotional involvement that was scarcely compatible
with the degree of objectivity required by advocacy in court. In such
circumstances, the Court found it unrealistic to suppose that the applicant
could effectively conduct her own case, despite the assistance afforded by the
judge to parties acting in person.
90. It may be noted that the right of access to court
is not absolute and may be subject to legitimate restrictions. Where an
individual's access is limited either by operation of law or in fact, the
restriction will not be incompatible with Article 6 where the limitation did
not impair the very essence of the right and where it pursued a legitimate aim,
and there was a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved (Ashingdane v. the United Kingdom
judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57). Thus, though the
pursuit of proceedings as a litigant in person may on occasion not be an easy
matter, the limited public funds available for civil actions renders a
procedure of selection a necessary feature of the system of administration of
justice, and the manner in which it functions in particular cases may be shown
not to have been arbitrary or disproportionate, or to have impinged on the
essence of the right of access to court (see the judgment Del Sol
v. France, no. 46800/99, [Section 3], of 26 February 2002, Ivison
v. the United Kingdom, no. 39030/97, dec. 16 April 2002). It may be the
case that other factors concerning the administration of justice (e.g. the
necessity for expedition or the rights of other individuals) could also play a
limiting role as regards the provision of assistance in a particular case,
though such restriction would also have to satisfy the tests set out above.
91. Secondly, the key principle governing the
application of Article 6 is fairness. In cases where an applicant appears in
court notwithstanding lack of assistance of a lawyer and manages to conduct his
or her case in the teeth of all the difficulties, the question may nonetheless
arise as to whether this procedure was fair (see, for example, no. 46311/99, McVicar
v. the United Kingdom, judgment of 7 May 2002, to be published in ECHR
2002-..., §§ 50-51). There is the importance of ensuring the appearance of
the fair administration of justice and a party in civil proceedings must be
able to participate effectively, inter alia, by being able to put
forward the matters in support of his or her claims. Here, as in other aspects
of Article 6, the seriousness of what is at stake for the applicant will be of
relevance to assessing the adequacy and fairness of the procedures.
2. Application in the present case
92. The Court recalls that the applicant P. was
awarded legal aid for legal representation in the proceedings brought by the
local authority in applying for a care order and a freeing for adoption order
in respect of her daughter S. This reflected the position in the domestic legal
system that in such proceedings as a general rule the interests of justice
require a parent to be given legal assistance. Initially therefore P. was
represented by senior and junior counsel and solicitors, who prepared her case
and advised her up until the hearing of the application for a care order which
commenced on 2 February 1999. However, on
93. The applicants' complaints about the lack of
legal assistance during these proceedings were met by the Government's
arguments largely based on the reasoning given by the judge for the procedural
decisions which he took. In the care proceedings, the judge considered that P.
was well able, and had shown herself able, to present her own case, with
assistance from counsel representing other parties in court and with
considerable leeway given by himself. He gave great weight to the opinion given
by Dr Bentovim that the future of S. should be settled by her first
birthday and considered that any adjournment would inevitably jeopardise her
welfare due to the delay factor. The Government have emphasised the
difficulties which would have been attached to relisting a trial of this
length.
94. The Court has paid careful attention to the
reasons given by the trial judge in this case, whose long judgment received merited
praise in the Court of Appeal for the thoroughness of his analysis and who had
first hand experience of the events and participants. It also notes that the
Court of Appeal considered that the proceedings had been fair, an opinion
shared by counsel for the guardian ad litem, who represented S.
95. Nonetheless, P. was required as a parent to
represent herself in proceedings which as, the Court of Appeal observed, were
of exceptional complexity, extending over the course of 20 days in which the
documentation was voluminous and which required a review of highly complex
expert evidence relating to the applicants, P. and C.'s, fitness to parent
their daughter. Her alleged disposition to harm her own children, along with
her personality traits, were at the heart of the case, as well as her
relationship with her husband. 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. Even if
P. was acquainted with the vast documentation in the case, the Court is not
persuaded that she should have been expected to take up the burden of
conducting her own case. It notes that at one point in the proceedings, which
were conducted at the same time as she was coping with the distress of the
removal of S. at birth, P. broke down in the court room and the judge, counsel
for the guardian ad litem and a social worker, had to encourage her to
continue (see paragraph 61 above).
96. The Court notes that the judge himself commented
that if P. had been represented by a lawyer her case would have been conducted
differently. Though he went on in his judgment to give the opinion that this
would not have affected the outcome of the proceedings, this element is not
decisive as regards the fairness of the proceedings. Otherwise, a requirement
to show actual prejudice from a lack of legal representation would deprive the
guarantees of Article 6 of their substance (Artico v. Italy judgment of
13 May 1980, Series A no. 37, § 35). Similarly, while the judge considered
that the case would turn on the cross-examination of P., where a lawyer would
only have been able to give limited assistance, that assistance would
nonetheless have furnished P. with some safeguards and support.
97. While it is also true that P. and C. were aware
that the freeing application was likely to follow the care application within a
short time, this does not mean however that they were in an adequate position
to cope with the hearing when it occurred. This hearing also raised difficult
points of law and emotive issues, in particular since the issuing of the care
order, and the rejection of the applicants' claims to have S. returned home,
must have had a significant and distressing impact on the parents.
98. Nor is the Court convinced that the importance of
proceeding with expedition, which attaches generally to child care cases,
necessitated the draconian action of proceeding to a full and complex hearing,
followed within one week by the freeing for adoption application, both without
legal assistance being provided to the applicants. Though it was doubtless
desirable for S.'s future to be settled as soon as possible, the Court
considers that 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. S. was, according to the
care plan, to be placed for adoption and it was not envisaged that there would
be any difficulty in finding a suitable adoptive family (eight couples were
already identified by
99. Recognising that the courts in this matter were
endeavouring in good faith to strike a balance between the interests of the
parents and the welfare of S., 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 that
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 assistance
afforded to P. by the counsel for other parties' and the latitude granted by
the judge to P. in presenting her case was no substitute, in a case such as the
present, for competent representation by a lawyer instructed to protect the
applicants' rights.
100. The Court concludes that 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. Consequently, the parents did not have fair and
effective access to court as required by Article 6 § 1 of the Convention. There
has, therefore, been a breach of this provision as regards the applicant
parents, P. and C.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
Article 8 of the Convention provides as relevant:
“1. Everyone has the right
to respect for his ...family life...
2. There shall be no
interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society ...
for the protection of health ... or for the protection of the rights and
freedoms of others.”
A. The submissions of the parties
1. The applicants
101. The applicants, P. and C., complained that the
domestic law and practice on child care and adoption law was 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 were in practice no
alternatives offered to adoption.
102. While they accepted that there was a duty on the
local authority to investigate, they submitted that the measures taken in this
case were harsh and excessive and failed to involve the parents sufficiently in
the decision-making process or even to give proper forewarning. Since P. was in
bed in hospital following the caesarean section, they questioned the necessity
of seizing the baby at once, in particular in an ex parte emergency
procedure. As she was very weak after a difficult birth and had drips in her
arms and was catheterised, she was in no physical state to abscond with S. or
cause her harm. The removal of S. was also against her interests as it deprived
her of the possibility of breast-feeding which had recognised health benefits,
as it did for P. as her mother. 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. Further, the local authority
would not bring S. into the hospital for contact visits which led P. to
discharge herself as early as possible in order to see her baby with C. on
supervised visits outside the hospital.
103. 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, or to carry out a
comprehensive social work assessment of the family as a whole as recommended by
Dr Eminson. The applicants contrasted 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 disputed 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.
104. 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, this did not justify the freeing for adoption order which severed
all legal ties. S. could have been placed for adoption under the care
order without this step. 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. P. and C.
had never harmed S. and there was no suggestion that C. posed a risk to S. The
possibility of long-term fostering with continued direct contact, or adoption
with continued direct contact, was never properly investigated, assessed or
examined. The applicants denied the Government's assertion that such an
arrangement would not have been sufficiently stable or secure. 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.
105. The complaints that there were insufficient
steps taken to provide for direct contact after the adoption were made on
behalf of themselves and their daughter S. The authorities had showed an
inflexible approach on this matter. The applicants denied 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 regards 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 were given and, in view
of the research on the subject, the adopters' opposition to contact was
probably influenced by the negative views of the local authority.
2. The Government
106. The Government denied that the domestic child
care system in any way failed to respect the requirements of Article 8 of the
Convention, pointing out that the child's welfare and need for secure placement
was at the heart of the authorities' concerns and that the importance of
rehabilitation of a child with birth families was recognised. Adoptions could
provide for contact, where such was in the child's interests.
107. They submitted that while the care order and
freeing for adoption order amounted to interferences with rights protected
under Article 8 § 1, any such interference complied with the second paragraph
as being necessary in a democratic society for protecting the health and rights
of S. The two key factors were the exceptional threat to S. in terms of the
nature of the risk posed by MSBP and the vigorous and intractably held position
of P. and C. which led the experts, the local authority and the judge all to
conclude that there was no alternative but to rule out any realistic prospect
of safely reuniting S. with either or both of her parents.
108. As regards the emergency protection order, the
measure was justified by the exceptional circumstances of the case. Article 3
of the Convention imposed an obligation to protect the new-born baby from
serious harm. They pointed to the fact that the parents did not accept the need
to protect S. from P. and that the local authority had firm advice from Dr
Schreier that the baby should be removed at birth, supported by the opinions of
Dr Eminson and later Dr Bentovim. The hospital authorities had stated that they
could not guarantee the baby's safety, the very nature of the risk (poisoning)
making it extremely difficult to ensure effective supervision in a hospital
setting. Despite P's incapacity, S. might have been removed by C. or his
parents. In addition, the decision not to give notice of the emergency
application was justified to prevent the family taking action before or after
the birth to keep S. from the care of the authorities. Also the authorities had
been waiting for Dr Eminson's report which had been delayed due to the parents'
prevarication over her appointment.
109. The Government submitted 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 causing her son B. significant physical
and psychological harm, the fact that P. suffered from a personality disorder;
the fact that that P.'s position held over a period of years was that she was
not guilty of intentionally harming B which C. supported; the unanimous
psychiatric opinion that in order to receive help P. would need to accept that
she remained a potentially dangerous person to her children; the inability of
both parents to acknowledge any risk to S.; and the fact that the time scale
for any therapeutic work with P. was far outside the period during which S.
could be kept waiting for a permanent placement. They argued that cases
involving MSBP were particularly difficult to evaluate and that the authorities
should be allowed the widest possible margin of appreciation in assessing the
risks and the appropriate measures.
110. The Government denied that there was any lack of
regard to the prospect of keeping the family together, stating that adoption
and long-term fostering were a last resort and only took place when placement
with the family was precluded. The practice of contingency planning whereby the
local authority ran twin track options – rehabilitation within a limited time
framework or adoption outside the family – pursued the interests of the child
in ensuring a secure future. It was not the case that the court had no option
but to make a care order or that it could not go behind the care plan. If it
had considered that other measures were possible, it could have refused a final
care order and made interim care orders pending further assessments. Nor was
there any failure to give proper consideration to rehabilitation.
Dr Bentovim, for example, had considered that there was a possible opening
for therapeutic work with P. on the basis of her partial acceptance of responsibility,
but P. had immediately challenged his evidence on this point and maintained a
total denial. If C. had similarly been able to accept the existence of risk,
the outcome might also have been different.
111. As regards the freeing for adoption order, the
Government emphasised the importance of avoiding delay once the plan for a
child has been identified and the fact that damage can be done to children who
linger in temporary care. The hearing of the freeing for adoption application
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. 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 a 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.
112. As regards 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; and, furthermore, the adopters were opposed
to direct contact. Insofar as complaint was made of the reduction in the
indirect contact since adoption, they pointed out that the local authority no
longer had any parental responsibility and the decision lay with the adoptive
parents.
B. The Court's assessment
1. General principles
113. The mutual enjoyment by parent and child of each
other's company constitutes a fundamental element of family life, and domestic
measures hindering such enjoyment amount to an interference with the right
protected by Article 8 of the Convention (see, amongst others, the Johansen
v. Norway judgment of 7 August 1996, Reports of Judgments and Decisions
1996-III, § 52). Any such interference constitutes a violation of this
Article unless it is “in accordance with the law”, pursues an aim or aims that
are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary
in a democratic society”.
114. In determining whether the impugned measures
were “necessary in a democratic society”, the Court will consider whether, in
the light of the case as a whole, the reasons adduced to justify these measures
were relevant and sufficient for the purpose of paragraph 2 of Article 8 of the
Convention (see, inter alia, the Olsson v. Sweden (no. 1) judgment of 24
March 1988, Series A no 130, § 68).
115. It must be borne in mind that the national
authorities have the benefit of direct contact with all the persons concerned
(see the Olsson v.
116. The margin of appreciation so to be accorded to
the competent national authorities will vary in the light of the nature of the
issues and the seriousness of the interests at stake. While the authorities
enjoy a wide margin of appreciation in assessing the necessity of taking a
child into care, in particular where an emergency situation arises, the Court
must still be satisfied in the circumstances of the case that there existed
circumstances justifying the removal of the child, and it is for the respondent
State to establish that a careful assessment of the impact of the proposed care
measure on the parents and the child, as well as of the possible alternatives
to taking the child into public care, was carried out prior to implementation
of a care measure (see K. and T. v. Finland, no. 25702/94, [GC], ECHR
2001-VII, § 166; Kutzner v. Germany, no. 46544/99, § 67, judgment of
26 February 2002, unreported). Furthermore, 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. judgment cited above, § 168).
117. Following any removal into care, a stricter
scrutiny is called for in respect of any further limitations by the
authorities, for example on parental rights of access, as such further
restrictions entail the danger that the family relations between the parents
and a young child are effectively curtailed (the above-mentioned judgments,
Johansen, § 64, and Kutzner, § 67). The taking into care of a child
should normally be regarded as a temporary measure to be discontinued as soon
as the circumstances permit, and any measures of implementation of temporary
care should be consistent with the ultimate aim of reuniting the natural parent
and child (Olsson (no. 1) judgment, p. 36, § 81; Johansen judgment, p.
1008, § 78; E.P. v. Italy, no. 31127/96, § 69, judgment of 16
September 1999, unpublished). In this regard a fair balance has to be struck
between the interests of the child remaining in care and those of the parent in
being reunited with the child (see the above mentioned Olsson (no. 2) v. Sweden
judgment, pp. 35-36, § 90; the Hokkanen v. Finland judgment, p. 20, § 55). In
carrying out this balancing exercise, the Court will attach particular
importance to the best interests of the child which, depending on their nature
and seriousness, may override those of the parent (the Johansen judgment, p.
1008, § 78).
118. As regards the extreme step of severing all
parental links with a child, the Court has taken the view that such a measure
would cut a child from its roots and could only be justified in exceptional
circumstances or by the overriding requirement of the child's best interests
(the Johansen judgment, p. 1010, § 84; Gnahoré v. France, no. 40031/98,
ECHR 2000-IX, § 59). That approach however may not apply in all contexts,
depending on the nature of the parent-child relationship (see the Soderback v.
Germany judgment of 28 October 1998, Reports 1998-IV, at §§ 31-34, where
the severance of links between a child and father, who had never had care and
custody of the child, was found to fall within the margin of the appreciation
of the courts which had made the assessment of the child's best interests).
119. The Court further recalls that whilst Article 8
contains no explicit procedural requirements, the decision-making process
involved in measures of interference must be fair and such as to afford due
respect to the interests safeguarded by Article 8:
“[W]hat has to be determined is
whether, having regard to the particular circumstances of the case and notably
the serious nature of the decisions to be taken, the parents have been involved
in the decision-making process, seen as a whole, to a degree sufficient to
provide them with the requisite protection of their interests. If they have
not, there will have been a failure to respect their family life and the
interference resulting from the decision will not be capable of being regarded
as 'necessary' within the meaning of Article 8.” (see the W. v. the United
Kingdom judgment of 8 July 1987, Series A no. 121-A, pp. 28-29, §§ 62 and 64).
120. It is essential that a parent be placed in a
position where he or she may obtain access to information which is relied on by
the authorities in taking measures of protective care or in taking decisions
relevant to the care and custody of a child. Otherwise the parent will be
unable to participate effectively in the decision-making process or put forward
in a fair or adequate manner those matters militating in favour of his or her
ability to provide the child with proper care and protection (see the McMichael
v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 57,
§ 92, where the authorities did not disclose to the applicant parents reports
relating to their child, and T.P. and K.M. v. the United Kingdom, no.
28945/95, [GC] ECHR 2001-V, where the applicant mother was not afforded an
early opportunity to view a video of an interview of her daughter, crucial to
the assessment of abuse in the case; also Buchberger v. Austria, no.
32899/96, judgment of 20 December 2001).
2. The state of domestic law
121. The applicants have complained that the law
governing adoption in the United Kingdom is in breach of the Convention, in
that it permits, if not facilitates, the removal of very young babies from
their parents with subsequent adoption and severance of all legal links.
122. It is not however the Court's role to examine
domestic law in the abstract. In any event, since there are circumstances which
may be envisaged where a young baby might be adopted in conformity with Article
8 of the Convention, it cannot be considered that the law per se is in
breach of this provision. The Court will examine rather whether the measures
taken in this particular case were in compliance with the guarantees of Article
8 of the Convention.
3. The removal of S. at birth
123. The Court recalls that S. was born on
124. The applicants have argued that these measures
were not necessary for S.'s protection and were disproportionate, pointing inter
alia to P.'s weakened state, the draconian step for both mother and baby of
removal so soon after birth and the possibility that S. could have remained in
the hospital with her mother under supervision. They have also criticised the
decision-making process before the birth, alleging that they were not properly
involved or informed and that it should have been possible to take the matter
before a court for a fair examination of the issues before the birth.
125. Firstly, as regards the procedures adopted by
the local authority prior to the birth, the Court would note that the
applicants accept that there was legitimate cause for concern when the social
services discovered that P., who was about to have a baby, had a conviction for
harming one of her other children. The local authority were under a duty to
investigate under section 47 of the Children Act 1989, and they commenced that
investigation in January 1998 once they became aware of the situation. The
Court is not persuaded that there was any failure to involve the applicants in
the investigative procedure which followed. The local authority consulted them
about the nomination of an expert in MSBP to assess the risk, and invited them
to an initial meeting in January 1998, and to a case conference on
126. While the applicants complain that they were not
properly informed that the local authority were going to take the baby away at
birth, and indeed Dr Eminson had advised the local authority to be frank and
open with the applicants, the Court notes that it appears that nonetheless the
applicants were aware that removal at birth was one of the options which the
local authority were considering – Dr Maresh, P.'s consultant obstetrician,
stated that P. knew that this was a strong possibility, and Dr Bentovim in
his report stated, after interviewing P., that she knew that the baby would be
removed at birth. While the local authority appear to have taken the view from
1 April 1998 that it would be necessary to take the baby away, it would seem
that no final decision was taken until the day of the birth, which occurred
earlier than foreseen. The Government stated that the social services obtained the
order in the morning and then discussed the possibility of leaving the baby in
the hospital with the hospital personnel. It was only when they decided that
this was not an option that they decided to implement the removal in the
afternoon. This does not disclose, in the Court's view, any failure of
consultation or information vis-ŕ-vis the parents.
127. Nor does the Court consider that in the
circumstances the local authority can be criticised for not attempting to have
the matter of the emergency removal decided in an inter partes hearing
in court before the birth. The report of Dr Eminson was not ready before the
birth and it would have been highly unlikely that sufficient evidence would
have been before a court for it to have reached a position on the difficult
issues of MSBP arising out of the evidence from
128. Questions of emergency care measures are, by
their nature, decided on a highly provisional basis and on an assessment of
risk to the child reached on the basis of the information, inevitably
incomplete, available at the time. The Court considers that it was within the
proper role of the local authority in its child protection function to take
steps to obtain an emergency protection order. It finds that there were
relevant and sufficient reasons for this measure, in particular the fact that
P. had been convicted for harming her son B. and had been found by an expert in
those proceedings to suffer from a syndrome which manifested itself in
exaggerating and fabricating illness in a child, with consequent significant
physical and psychological damage to the child.
129. There has been much argument between the parties
concerning the other suspicions and allegations raised by the local authority:
for example, that P. had been harassing the expert doctor and the district
attorney in
130. In the circumstances, the Court considers that
the decision to obtain the emergency protection order after S.'s birth may be
regarded as having been necessary in a democratic society to safeguard the
health and rights of the child. The local authority had to be able to take
appropriate steps to ensure that no harm came to the baby and, at the very
least, to take the legal power to prevent C. or any other relative removing the
baby with a view to foiling the local authority's actions, and thereby placing
the baby at risk.
131. It has nonetheless given consideration as to the
manner of implementation of the order, namely, the steps taken under the
authority of the order. As stated above (paragraph 116), the removal of a baby
from its mother at birth requires exceptional justification. It is a step which
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, as pointed out by the applicants, of the advantages of
breast-feeding. The removal also deprived the father, C., of being close to his
daughter after the birth.
132. The reasons put forward by the Government for
removing the baby from the hospital, rather than leaving her with her mother or
father under supervision, are that the hospital staff stated that they could
not assure the child's safety and alleged tensions with the family. No details
or documentary substantiation of this assertion are provided. P., who had
undergone a caesarean section and was suffering the after-effects of blood loss
and high blood pressure, was, at least in the first days after the birth,
confined to bed. Once she had left the hospital, she was permitted to have
supervised contact visits with S. It is not apparent to the Court why it was
not at all possible for S. to remain in the hospital and to spend at least some
time with her mother under supervision. Even on the assumption that P. might be
a risk to the baby, her capacity and opportunity for causing harm immediately
after the birth must be regarded as limited, considerably more limited than
once she was discharged. Furthermore, on the information available to the
authorities at that stage, P's manifestation of the syndrome, sometimes known
as MSBP, indicated a prevalence for exaggerating symptoms of ill-health in her
children and that she had gone so far as to use laxatives to induce diarrhoea.
Though the harm which such conduct poses to a child, particularly if continued
over a long period of time cannot be underestimated, there was in the present
case no suspicion of life-threatening conduct. This made the risk to be guarded
against more manageable and it has not been shown that supervision could not
have provided adequate protection against this risk, as was the case in the
many contact visits over the months leading up to the care proceedings when
both parents were allowed to feed the baby (see Dr Bentovim's report,
paragraph 54 (vii)).
133. The Court concludes that the draconian step of
removing S. from her mother shortly after birth was not supported by relevant
and sufficient reasons and that it cannot be regarded as having been necessary in
a democratic society for the purpose of safeguarding S. There has therefore
been, in that respect, a breach of the applicant parents' rights under Article
8 of the Convention.
4. The care and freeing for adoption proceedings
134. The Court recalls that on 8 March 1999, after a
hearing lasting about 20 days involving numerous witnesses, the judge issued a
care order placing S. in the care of the local authority, finding that her
moral and physical health would be endangered by leaving her with her parents.
On
135. The applicants have made numerous criticisms
about the procedures, which emphasise their conviction that the local authority
made no effort to explore the rehabilitation of S. with themselves, but rather
were determined to place S. for adoption from the beginning, and that
insufficient consideration was given to providing for some form of continued
contact with S. after the care order, whether by placing her in long term
foster care or by arranging an open adoption. The Government have relied inter
alia on the findings of the trial judge as to the absence of any
possibility of rehabilitation with S. due to the parents' lack of acceptance of
any risk (the precondition for any hope of progress). They contended that
adoption, which would give S. a secure place in a family, was in S.'s best
interests and that an open adoption was not possible where the birth parents
opposed the adoption (as their opposition would inevitably undermine the
security of the child's placement).
136. The Court does not propose to attempt to untangle
these opposed considerations, which raise difficult and sensitive issues
concerning S.'s welfare. It considers rather that the complexity of the case,
and the fine balance which had to be struck between the interests of S. and her
parents, required that particular importance be attached to the procedural
obligations inherent in Article 8 of the Convention. It was crucial for the
parents in this case to be able to put forward their case as favourably as
possible, emphasising for example whatever factors militated in favour of a
further assessment of a possible rehabilitation, and for their viewpoints on
the possible alternatives to adoption and the continuation of contact even
after adoption to be put forward at the appropriate time for consideration by
the court.
137. The lack of legal representation of P. during the care proceedings and of P. and C. during the freeing for adoption proceedings, together with the lack of any real lapse of time between the two procedures, has been found above to have deprived the applicants of a fair and effective hearing in court. Having regard to the seriousness of what was at stake, the Court finds that it also prevented them from being involved in the decision-making process, seen as