EUROPEAN COURT OF HUMAN RIGHTS
SECOND SECTION
CASE OF P., C. AND S. v. THE UNITED KINGDOM
(Application no. 56547/00)
JUDGMENT
STRASBOURG
16 July 2002
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 United Kingdom,
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 2 July 2002,
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 London. The
United Kingdom Government (“the Government”) were represented by their Agent,
Mr H. Llewellyn of the Foreign and Commonwealth Office, London. The President
of the Chamber acceded to the applicants' request not to have their names
disclosed (Rule 47 § 3 of the Rules of Court).
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 1 November 2001 the Court changed the
composition of its Sections (Rule 25 § 1). This case was assigned to the newly
composed Second Section.
6. By a decision of 11 December 2001, the Court
declared the application admissible.
7. The applicants and the Government each filed
observations on the merits (Rule 59 § 1).
8. A hearing took place in public in the Human
Rights Building, Strasbourg, on 26 March 2002 (Rule 59 § 2).
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 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.
A. Events in the
United States of America 1976-1996
10. 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 and had a second son B. in
February 1985. In 1992, she and her husband separated. Both parents contested
custody of B.
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 18
April 1994 B. was admitted to hospital, a laboratory stool test was positive
for the presence of phenolphthalein (a laxative). The doctor was satisfied that
P. had been responsible for laxative poisoning and reported the matter.
13. 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 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.
14. 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.
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 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 three months in custody,
which later was suspended. She was also ordered to enter and complete a
“psychological and psychiatric treatment programme”.
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 2 May 1996, the Californian family court
reduced contact to one supervised occasion per month. It was ordered that any
additional contact visits would have to occur in a therapeutic setting with a
doctor present. Her appeal against this was dismissed.
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 United Kingdom: Rochdale
1996
19. In November 1996, in breach of the probation
order, P. came to visit C. in the United Kingdom. P. and C. were married in
September 1997 in the United Kingdom. P. discovered shortly afterwards that she
was pregnant.
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 United Kingdom, giving information about P.'s conviction for harming her
son B. The local authority was informed of the pregnancy by P.'s doctor and
commenced an investigation.
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 United States. P. initially refused to give this
information. The proposed meeting was cancelled.
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 28 January 1998, a meeting took place
attended by P. and C., social workers and the police.
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 17 February
1998, the local authority's solicitors noted that the applicants were not happy
with the proposed expert Dr Bentovim and requested further details of any
objections. They pointed out that the person suggested by the applicants was
not an expert in MSBP and requested details of the other proposed experts.
25. On 18 February 1998, the local authority
made contact with Dr Eminson, a consultant child and adolescent psychiatrist,
who had been proposed by the applicants, with a view to her undertaking an
assessment.
26. By letter dated 13 March 1998, the local
authority's solicitor referred to the applicants' solicitors' letter of 11
March 1998. It was pointed out that as there were no care proceedings in train
there was no obligation on the local authority to agree a letter of instruction
for the expert with the applicants. At that stage, all that was required was
P.'s agreement to see the expert. The view was expressed that it was for the
local authority to decide what documentation to submit to the expert, though
they would have no objection to the applicants' providing extra documentation.
Though they wished to work in co-operation with P., they could not allow her to
dictate the course and conduct of the section 47 assessment.
27. On 2 March 1998, a case conference was held
by the local authority attended inter alia by social workers, P.'s general
practitioner (“GP”), a health visitor, a midwife, P. and C., P.'s solicitor and
the paternal grandmother. The minutes of the meeting stated that the reason for
the conference was that P. had a conviction which led to concern that her
unborn child might be at risk of induced illness/injury after it had been born.
It was noted that P. disputed details of the background to her conviction,
inter alia, claiming that there was evidence of her son B. having diarrhoea as
she had alleged. C. was noted as accepting that the existence of a conviction
could give rise for concern but not that it automatically meant his wife
suffered from MSBP, alleging that there was no direct evidence of any harm
having been inflicted by her. Due to the concerns that P. suffered from MSBP,
it was decided to place the unborn child on the Child Protection Register at birth
and to undertake a full risk assessment.
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 25 March 1998, in discussions between the
applicants' solicitors and the local authority, it was indicated that the
applicants were no longer happy to see Dr Eminson.
32. On 1 April 1998, the local authority held a
case meeting to review the situation. It was found that the parents had not
co-operated with the local authority assessment, or that their co-operation was
superficial. A combination of excuses and evasiveness had made it possible to
hold only one meeting. There still appeared to be a complete denial about
events in the USA. The local authority solicitor had spoken with the District
Attorney involved in the case in California and reported a number of
allegations, including the concern that P. suffered from Munchhausen's syndrome
as shown by her own medical history, that C. had impersonated a therapist in
trying to convince P.'s probation officer that she was complying with an order,
and that P. had harassed Dr Shreier and the District Attorney by telephone
calls. It was noted that P. and C. were unwilling to see the expert proposed by
the local authority. It was decided to take out an emergency protection order
at the birth as there was:
“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 7 April 1998, the applicants' solicitors
confirmed that P. and C. would see Dr Eminson. They attended an appointment on
28 April 1998.
34. On 8 April 1998, Dr Schreier wrote to the
local authority, expressing grave concern and recommending the removal of the
baby at birth and strict supervision of contact as there was a high level of
risk of harm from P.
35. On 30 April 1998, the local authority was
approached by C.'s mother asking whether the child could be placed with her.
They decided to raise the matter with Dr Eminson as part of her assessment.
36. Notes dated 6 May 1998 of a discussion
between the assistant director (social services) and Dr Eminson included the
doctor's view that the basis upon which to work with the parents was extremely
limited given the absence of acceptance/agreement about concerns over the
unborn baby or the past history in America. She had found that the parents were
not prepared to discuss the real issues with her, that the battle with the
authorities was the main concern for C. and the couple showed little concern or
awareness of the key issue, that of the safety of the unborn baby. Though a
definitive conclusion was difficult, the risk factors were not in her view
sufficiently worrying to justify not telling the parents about the proposed
application for an emergency protection order at birth. While the possibility
of further assessment with the couple and newborn baby at a residential
facility was not ruled out, they were not in a position to do that at that time
due to the limited amount of co-operation and engagement of the parents.
37. By 30 April 1998 it was becoming likely
that, due to the lie of the baby, P. would have to a caesarean section instead
of the planned home birth. The midwife reported that the consultant Dr Maresh
wanted P. to be admitted on 6 May 1998 for an elective caesarean, but that P.
had refused and returned home. The midwife was noted in the social work records
as having become very angry with P. and C. for resisting medical advice and,
later, for having claimed that they had been lucky to get a live baby.
C. The birth of S.
and the emergency and care proceedings
38. On 7 May 1998, at 4.42 a.m., S. was born by
caesarean surgery. C. had brought P. to the hospital when her waters broke at
home.
39. The local authority applied for an emergency
protection order at about 10.30 a.m. They contacted the hospital concerning the
possibility of staff supervising the baby in hospital. After discussions, it
was confirmed to the local authority by the hospital management that, even with
security present, they could not guarantee the baby's safety. The Government
stated that the hospital was concerned by the difficult behaviour of a friend
of P.'s who demanded to be present during the operation and had to be
threatened with removal by security guards, and the aggressive manner of P.'s
friends and family to staff after the birth. The applicants have stated that
there is no evidence for these allegations in the records. Notes in the
hospital records indicated that at 3.30 p.m. Dr Maresh had stated that he would
prefer the visit of the social workers to be deferred as the news might upset
P. and cause a rise in blood pressure.
40. At about 4 p.m., it was decided to serve the
emergency protection order on the applicants with a view to removing S. to
foster care. According to the Government, C.'s mother refused to allow S. to be
removed and C.'s father threatened to follow the social workers and the baby.
Safe departure from the hospital was only achieved with the assistance of the
hospital staff. The applicants stated that there was no evidence for this in
the records, though they accepted that the family were very upset when S. was
removed, and C.'s mother pleaded with the social workers not to let S. go to strangers.
41. A contact visit was arranged on 8 May 1998,
attended by C. and his parents. While social services had considered taking S.
back to the hospital for visits while P. was an inpatient, it was felt that it
was not in the interests of S. as a newborn baby to be transported on a trip of
some 25-30 miles.
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 10 May 1998.
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 11 May 1998.
P. and C. applied for more access and were supported by the guardian ad litem
appointed by the court to represent S. Contact increased to four times a week
from 15 June 1998. S. also had contact with her maternal and paternal
grandparents.
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 13 May 1998, the local authority
suspended the assessment of the paternal grandparents which had commenced after
their approach to the local authority on 30 April 1998. This was to await the directions
of the court, as advised by their counsel. The grandparents were advised of
this on 14 May 1998.
47. On 14 May 1998, the case was transferred
from the County Court to the High Court on grounds of complexity.
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 31 July 1998, the timetable for the
proceedings was set by a circuit judge and the hearing date fixed for February
1999. It was directed that the assessment of the grandparents should be
undertaken by an expert but that the local authority should provide the factual
background.
50. In a report dated 21 September 1998, a
social worker recorded the factual investigation into the paternal
grandparents.
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 26 November 1998, Dr Maresh, P.'s
obstetrics consultant, gave a statement indicating that it was clear to him
that P. was aware that there was a strong possibility that her baby would be
taken away from her at birth and this made it difficult for her to stay in the
hospital. He noted that during her pregnancy the number of assessments that P.
was undergoing was sometimes interfering with the ease of making ante-natal
appointments.
54. On 10 December 1998, Dr Bentovim issued his
psychiatric report:
(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 Cassel would be appropriate.
(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 16 December 1998, the local authority
made an application to free S. for adoption.
56. The local authority care plan dated 13
January 1999 stated that placement of S. with both parents would pose a serious
risk to her. As it was unclear in which circumstances C. intended to offer any
sole care of S., the concerns about her protection remained. Regarding the
paternal grandparents, it was noted that they had not shared the concerns in
respect of the risk to S. if placed with her parents, and that Dr Bentovim did
not support placement with them, particularly because of their age. Their view
was that the care plan for S. should be permanency, secured by adoption, and
that she needed to be placed with an adoptive family as soon as possible.
D. The hearing of
the application for a care order in the High Court February-March 1999
57. 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.
58. On 4 February 1999, C. applied for leave to
withdraw from the proceedings, on the ground that he saw no prospect of success
in obtaining 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 him
leave to withdraw. C.'s parents also withdrew from the proceedings.
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 9 February
1999, which was granted. On 9 February 1999, P. asked for a further adjournment
in order to apply for the reinstatement of her legal aid certificate.
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 United States of America, I
accept ... that she is not a lawyer. Further the hearing has had in [S.'s]
interests to delve into matters which were highly distressing to the parents
and which are normally intensely private and would have remained private.
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 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 had
been caused by laxative abuse on the part of P. on one occasion and, on a
balance of probabilities, that abuse was the most likely cause of B.'s
diarrhoea on two further occasions. He went 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 15 March 1999, the same High Court judge
heard the application to free S. for adoption. The transcript of his previous
judgment was not yet available. 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.
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 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. It noted that
that the trial was of exceptional complexity, with enormous documentation, much
expert evidence and lasting 20 days. It found however that the judge had
carefully and thoroughly weighed all the issues of fact and that he had been
meticulous throughout in ensuring fairness. No error of law or any failure of
procedural fairness had been demonstrated.
F. Adoption and
arrangements for contact
69. The last contact visit by P. and C. with S.
was on 21 July 1999.
70. On 2 September 1999, S. was placed for
adoption with a family. On 13 October 1999, the local authority informed P. and
C. that S. had been placed with adopters.
71. S. was adopted by an order made on 27 March
2000. P. and C. were informed on 27 April 2000.
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 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. By letter dated 17
November 2000, the local authority informed them that contact was reduced at
the request of the adopters to a letter from the parents once a year.
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 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 and extinguishes the
pre-existing parental responsibility.
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 1 March 2002, for example, it would not have been possible to accommodate
another trial of such length before a High Court judge until December 2002. If
the case had been adjourned instead to be re-listed before an experienced
circuit judge, which due to the difficult and sensitive nature of the case
would not have been the parties' choice, the delay would have been about three
months.
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 5 February 1999, her lawyers applied
to the judge to withdraw from the proceedings, alleging that P. was requiring
them to conduct the case in an unreasonable manner. The judge permitted them to
withdraw. He allowed P. an adjournment of four days until 9 February 1999, at
which point he refused any further adjournment, giving detailed reasons for
that decision which required the applicant to conduct her own case over the
bulk of the trial. After making the care order on 8 March 1999, the judge fixed
the hearing of the application for the freeing of S. for adoption for one week
later on 15 March 1999. On that date, he refused the application of P. for the
proceedings to be deferred to allow her to obtain legal representation. He then
proceeded after the hearing of the application to issue an order freeing S. for
adoption without any provision for continued direct contact. There can be no
doubt therefore of the seriousness of the outcome of the proceedings for P. and
C., which deprived them of the possibility of bringing S. up in their family
and of any future contact with her and which severed their legal relationship
with her.
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 2 February 1999). Yet though S. was freed
for adoption by the court on 15 March 1999, she was not in fact placed with a
family until 2 September 1999, a gap of over five months for which no
explanation has been given, while the adoption order which finalised matters on
a legal basis was not issued until 27 March 2000 more than a year later. Her
placement was therefore not achieved by her first birthday in May in any event.
It is not possible to speculate at this time as to how long the adjournment
would have lasted had it been granted in order to allow the applicant P. to
have representation at the care proceedings, or for both parent applicants to
be represented at the freeing for adoption proceedings. It would have been
entirely possible for the judge to place strict time-limits on any lawyers
instructed, and for instructions to be given for re-listing the matter with due
regard to priorities. As the applicants have pointed out, S. was herself in a
successful foster placement and unaffected by the ongoing proceedings. The
Court does not find that the possibility of some months' delay in reaching a
final conclusion in those proceedings was so prejudicial to her interests as to
justify what the trial judge himself regarded as a procedure which gave an
appearance of “rail-roading” her parents.
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. Sweden (no. 2) judgment of 27 November 1992, Series A no.
250, § 90). It follows from these considerations that the Court's task is not
to substitute itself for the domestic authorities in the exercise of their
responsibilities for the regulation of the public care of children and the
rights of parents whose children have been taken into care, but rather to
review under the Convention the decisions taken by those authorities in the
exercise of their power of appreciation (see, for instance, the Hokkanen v.
Finland judgment of 23 September 1994, Series A no. 299-A, § 55; the
above-mentioned Johansen judgment, § 64).
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 7 May
1998, at 4.42 a.m., after P. was brought into hospital for an emergency
caesarean. The local authority obtained an emergency protection order at about
10.30 a.m. which placed S. under their care. At about 4 p.m., the social
workers took S. from the hospital and placed her with foster parents. It is
uncontested that these matters constituted interferences with the applicants'
rights under the first paragraph of Article 8 and that it falls to be determined
whether they complied with the requirements of the second paragraph. As it is
also not in dispute that the measures taken were in accordance with the law and
pursued the legitimate aim of the protection of health and the rights of
others, namely of S., the Court's examination concentrates on the necessity of
the measures as that term has been interpreted in its case-law (see paragraphs
114-119 above).
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 2 March 1998
where the situation was discussed with the professionals involved in the case.
There were further meetings between the social workers and the parents, and
once Dr Eminson was instructed, she saw both parents with a view to drawing up
her report.
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-à-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 America or on the applicants' parental
capabilities and psychological states. Furthermore, the birth occurred early,
and it cannot be excluded that the stress of court appearances before the birth
would have been highly deleterious to P., who showed problems with high blood
pressure, and thus also potentially harmful to the unborn child.
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 California, that C. had pretended to be P.'s therapist and
that P. was showing signs of conduct harmful to the foetus. It is true that
these matters were not proved or upheld in the later care proceedings.
Nonetheless, the local authority had been receiving information both from the
authorities in the United States and from health professionals in the case
which added to their concerns. The local authority also considered that the
applicants were not co-operative and had been evasive. The applicants disputed
this hotly, countering that the local authority were hostile and over-reacting
to the MSBP label. The Court observes that both sides viewed matters from
markedly different perspectives. The applicants, on the one hand, influenced
inter alia by C.'s own social work experience and his research into MSBP, were
insistent on obtaining as much information as possible on the local authority's
approach to this crucial matter, which they regarded as misguided, and they
safeguarded their position by instructing solicitors. This gave their attitude
a certain litigious appearance from an early stage. The local authority, on the
other hand, were receiving information from America which placed P. in a very
suspicious light, the significance of which information P. and C. seemed to be
refusing to accept. This gave the local authority the firm impression that P.
and C. were not focussing on the real concern in the case, the risk to S., and
that there was little room for manoeuvre. This was supported by the opinion of
Dr Schreier who wrote in April 1998 that there was a high level of risk to the
child, and the preliminary views of Dr Eminson noted on 6 May 1998 who had
found that the basis on which to work with the parents at that stage was very
limited.
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 15 March 1999, the judge freed S. for adoption, thereby severing
the links between the parents and S., who was adopted on 27 March 2000. No
provision for future direct contact was made, reference only being made to
indirect contact at the discretion of the future adoptive parents, who as
events turned out reduced contact to one letter box contact per year. It is
also not in dispute that these measures interfered with the applicants' rights
under the first paragraph of Article 8 of the Convention and that they were in
accordance with the law and pursued the legitimate aim of protecting S. Issues
arise however as to whether they were justified as necessary within the meaning
of the second paragraph (see paragraphs 114-119 above).
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 a whole, to a degree sufficient to provide
them with the requisite protection of their interests under Article 8 of the
Convention. Emotionally involved in the case as they were, the applicant
parents were placed at a serious disadvantage by these elements, and it cannot
be excluded that this might have had an effect on the decisions reached and
eventual outcome for the family as a whole.
138. In the circumstances of this case, the Court
concludes that there has been in this regard a breach of P., C. and S.'s rights
under Article 8 of the Convention.
III. ALLEGED VIOLATION
OF ARTICLE 12 OF THE CONVENTION
139. Article 12 of
the Convention provides as relevant:
“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. Arguments of the
parties
140. The applicants P. and C. argued that having
children was an essential part of the right guaranteed under this provision. On
the facts of this case, the authorities' actions have had such an invasive and
deterrent effect as also to infringe this provision. Due to P.'s age, it was
unlikely that she would be able to have another child by their marriage.
141. The Government submitted that measures which
were justified under Article 8 of the Convention could not raise separate
issues under this provision. In any event, Article 12 did not in their view
guarantee a separate right to have children or to retain contact with those
children.
B. The Court's
assessment
142. The Court has found above that the removal
of S. after birth and the lack of legal representation during the care and
freeing proceedings disclosed violations of Article 8 of the Convention.
Observing that Article 12 relates to the right to found a family and does not
concern, as such, the circumstances in which interferences with family life
between parents and an existing child may be justified, where Article 8 may be
regarded as the lex specialis, the Court finds that no separate issue arises under
this provision in the present case.
IV. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
143. Article 41 of the Convention provides:
“If the Court finds
that there has been a violation of the Convention or the Protocols thereto, and
if the internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
1. Arguments of the
parties
144. The applicants P. and C. made a claim of
7,510 pounds sterling (GBP) for their own costs and expenses arising out of the
domestic proceedings and the proceedings before this Court. This included items
such as travel to court, car parking, telephone and photocopying costs,
research costs and the cost of travelling on 12 occasions to meet with their
legal representatives for the Convention proceedings.
145. The applicants P. and C. also claimed that
they had suffered non-pecuniary damage from the breaches of Articles 8 and 6 of
the Convention, emphasising the extreme grief and frustration which they have
experienced and their lasting distress at being irreversibly separated from S.
They also invited the Court to conclude that S. has suffered an appreciable
loss. They referred to the previous awards made by the Court in other child
care cases, and proposed that they should hold any damages awarded to S. on
trust for S., which would allow them to apply income for S.'s benefit. She
would inherit the capital when she was 18 years' old.
146. The Government considered that the costs
claimed by the applicants for their own expenses were not recoverable as such
because no causal link had been established between the alleged losses and the
alleged violations. These costs would have been incurred irrespective of
whether the proceedings in issue violated the Convention or not.
147. As regards non-pecuniary damage, the
Government submitted that while the applicants P. and C. may well have suffered
some distress and frustration from events, the local authority had done
everything possible to ascertain the risk of harm posed to S. by P., and the
advice was unanimous in concluding that P. posed a significant risk to S.'s
health. Also the applicants, through their uncooperative stance, to a very large
extent contributed to the distress and frustration that they may have
experienced, inter alia, by denying Dr Bentovim's account of his interview with
P. and by challenging the evidence from the United States of America. In those
circumstances, a finding of a violation of the Convention would be sufficient
just satisfaction in this case. In any event, they considered that any award in
excess of GBP 5,000 for each adult applicant would be excessive and
inappropriate, pointing to awards in cases where the parents concerned had not
been considered a risk to their children.
2. The Court's
assessment
148. As regards the applicants' claims for
pecuniary loss, the Court's case-law establishes that there must be a clear
causal connection between the damage claimed by the applicant and the violation
of the Convention (see, amongst other authorities, the Barberà, Messegué and
Jabardo v. Spain judgment of 13 June 1994 (Article 50), Series A no. 285-C, pp.
57-58, §§ 16-20; the Cakici v. Turkey judgment of 8 July 1999, Reports 1999-IV,
§ 127). In this case, the Court has found violations of Article 6 and 8 in
respect of the lack of legal representation of P. and C. during the procedures
and the shortness of time between the two key hearings, as well as a breach of
Article 8 in respect of the removal of S. at birth. There is no causal link
between these violations and the costs claimed for attending and preparing for
the domestic proceedings, in which the applicants would have participated in
any event. Nor do the costs of travel by the applicant parents to meet with
their legal representatives in these proceedings constitute a head of
recoverable damage, the ordinary incidents in pursuing individual applications
being regarded as an intrinsic and inevitable part of the process. Where an
applicant was unrepresented through part or all of the proceedings, the Court
has on occasion made awards under the heading of legal costs and expenses, to
reflect reasonable sums necessarily incurred in the course of submitting an
application (see, for example, Scarth v. the United Kingdom, no. 33745/96,
judgment of 22 July 1999, unpublished, McLeod v. the United Kingdom judgment of
23 September 1998, Reports 1998-VIII). The present applicants, as appears
below, were represented by a number of lawyers, who have presented quite
substantial claims. In the circumstances, the Court makes no pecuniary award as
claimed.
149. Turning to the claims for non-pecuniary
damage, the Court does not consider that it can be asserted that S. would not
have been adopted if the flaws identified in the procedures had not occurred,
though it cannot be excluded that the situation of the family might have been
different in some respects. They thereby suffered a loss of opportunity. In
addition, the applicants P. and C. certainly suffered non-pecuniary damage
through distress and anxiety.
150. The Court thus concludes that the applicants
P. and C. sustained some non-pecuniary damage which is not sufficiently
compensated by the finding of a violation of the Convention (see, for example,
Elsholz v. Germany [GC], no. 25735/94, §§ 70-71, ECHR 2000-VIII). While S.
might also be regarded as having lost an opportunity of contact with her birth
parents, she was, to the knowledge of the Court, protected from the trauma of
the court proceedings. Having regard to the fact that P. and C. have no legal
ties with S. or any direct contact, it considers it inappropriate to make any
award to them to hold on trust for S. or to make any award to S. who is settled
in her adoptive family and unaware of these proceedings.
151. Making an assessment on an equitable basis,
it awards the sum of 12,000 euros (EUR) each to the applicants P. and C.
B. Costs and
expenses
152. The applicants claimed a total of EUR
113,173, inclusive of value-added tax (“VAT”), for legal costs and expenses in
the Convention proceedings. This included EUR 43,125 for Ms Barbara Hewson,
counsel, who pleaded at the hearing, EUR 14,188 for Mr Dermot Casey, counsel,
who assisted at the hearing, EUR 22,440 for Ms Nuala Mole of the Aire Centre
for research and liaising with the applicants and counsel, and EUR 35,420 for
the solicitors instructed by the applicants, for which no detailed breakdown
was provided.
153. The Government submitted that the costs
claimed were neither necessarily incurred or reasonable as to quantum. The
case, though unusual, did not require the applicants to be represented in
effect by four lawyers (two counsel, the Aire Centre and a solicitor). They
disputed the usefulness of the research carried out by the Aire Centre, while
the sums claimed for the solicitor were unparticularised and not reasonable in
amount, exceeding the fees of Ms Hewson instructed for the applicants since the
beginning of the case. Any more than EUR 60,000 would, in their view, be
excessive and inappropriate.
154. The Court recalls that only legal costs and
expenses found to have been actually and necessarily incurred and which are
reasonable as to quantum are recoverable under Article 41 of the Convention
(see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, ECHR
1999-II, § 79). It observes that the present case involved important and
complex issues, both concerning the facts and the legal aspects. Nonetheless,
the number of qualified representatives in this case, each of whom has made
substantial claims, would not appear justified by the complexity of the case.
An unnecessary amount of overlapping and duplicating of work emerges from the
submitted claims. Nor, when compared to the sums claimed in other family law
cases from the United Kingdom, do the sums claimed here appear reasonable as to
quantum. A further reduction has been made in respect of the unsubstantiated
claims put forward by the solicitor.
155. Accordingly, the Court awards the sum of EUR
60,000, inclusive of VAT.
C. Default interest
156. Having regard to the fact that the award is
expressed in euros, the Court finds it appropriate to apply a rate of 7.25%.
FOR THESE REASONS, THE COURT
1. Holds unanimously
that there has been a violation of Article 6 §1 of the Convention in respect of
the applicants P. and C.;
2. Holds unanimously
that there has been a violation of Article 8 of the Convention in respect of
the applicants P. and C as regards the removal of S. at birth;
3. Holds by 6 votes
to 1 that there has been a violation of Article 8 of the Convention in respect
of all the applicants as regards the subsequent procedures concerning the
applications for care and freeing for adoption orders;
4. Holds unanimously
that no separate issue arises under Article 12 of the Convention;
5. Holds unanimously
(a) that the
respondent State is to pay the applicants, P. and C., within three months from
the date on which the judgment becomes final according to Article 44 § 2 of the
Convention, the following amounts to be converted into pounds sterling at the
date of settlement:
(i) EUR 12,000
(twelve thousand euros) each to applicants P. and C. in respect of
non-pecuniary damage;
(ii) EUR 60,000
(sixty thousand euros) in respect of costs and expenses;
(b) that simple
interest at an annual rate of 7.25% shall be payable from the expiry of the
above-mentioned three months until settlement;
6. Dismisses
unanimously the remainder of the applicants' claim for just satisfaction.
Done in English,
and notified in writing on 16 July 2002, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
T.L. Early
J.-P. Costa
Deputy Registrar
President
In accordance with
Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the
following opinions are annexed to this judgment:
(a) the concurring opinion of Sir Nicolas
Bratza;
(b) the partly dissenting opinion of Mr Baka.
J.-P.C.
T.L.E.
CONCURRING OPINION OF JUDGE Sir Nicolas BRATZA
I am in full
agreement with the view and reasoning of the Chamber that there has been a
violation of the rights of P. and C. under Article 6 of the Convention and that
the removal of S. from her mother shortly after birth gave rise to a violation
of her parents' rights under Article 8. Where I have certain hesitations is as
to the view of the majority of the Chamber that there was a further violation
of Article 8 in respect of the care and freeing for adoption proceedings.
The Chamber,
correctly in my view, has not found a substantive breach of Article 8 in
relation to the decisions of the national courts to take S. into care or to
free her for adoption. In the domestic proceedings Mr. Justice Wall had the
inestimable advantage not only of a detailed knowledge of the voluminous
documentation in the case but of seeing and hearing the witnesses, including P.
and C. themselves, as well as the several experts who gave oral evidence. In his
two fully and cogently reasoned judgments, he reached the clear conclusion that
it was in the best interests of S. that she should be taken into care and freed
for adoption with the minimum delay. In the light of these judgments, I can
find no basis for concluding that these measures violated the substantive
provisions of Article 8 of the Convention.
The majority's
finding of a violation is instead founded on the lack of legal representation
of the parent applicants during the two sets of proceedings in which, as the
judgment states, it was crucial for them to be able to put forward their case
effectively and for their viewpoints on the possible alternatives to adoption,
as well as on the continuation of contact even after adoption, to be
persuasively presented. In the view of the majority, this lack of legal
representation, in addition to founding a breach of Article 6 by depriving the
applicants of a fair and effective hearing, violated their Article 8 rights by
preventing them from being sufficiently involved in the decision-making
process.
It is well
established by the case-law of the Court that there are inherent in Article 8
of the Convention certain procedural requirements, entitling parents to be
involved in any decision-making process concerning the care of their children
to a degree sufficient to provide them with the requisite protection of their
interests. It is further established that the different purpose pursued by the
respective procedural safeguards afforded by Articles 6 and 8 may, in the light
of the particular circumstances, justify the examination of the same set of
facts under both Articles (see eg., McMichael v. the United Kingdom judgment of
24 February 1995, Series A no. 307-B, p.57, para.91).
In the McMichael
case the facts complained of (the inability of the applicants to have sight of
certain documents considered by the children's hearing and the Sheriff Court)
were found by the Court to have had repercussions not only on the conduct of
judicial proceedings to which the second applicant was a party, but also on a fundamental
element of the family life of the two applicants. In these circumstances, the
Court considered it appropriate to examine the facts also under Article 8.
In the present case
the circumstances are in my view different and it is these differences which
have caused me to hesitate. The procedural failings identified by the Court in
the present case relate not to the denial of access to documents nor to the
failure of the authorities to consult the applicants or involve them fully in
the decision-making process, but to the fact that the applicants were not
legally represented in the care or freeing for adoption court proceedings.
Moreover, in his judgment in the former proceedings, Mr. Justice Wall expressly
concluded that, even if P. had been represented by counsel at the hearing, he
was entirely satisfied that the result would have been the same. While this
conclusion does not affect the question whether the procedural safeguards under
Article 6 were complied with, it has in my view some relevance to the question
whether the lack of these safeguards may be said also to have had repercussions
on the family life of the applicants so as to justify the examination of the
case additionally under Article 8.
In the end,
however, I have concluded that the lack of legal representation of the
applicants can be said to have such repercussions. In this regard, I attach
importance to the fact that, even if a care order was inevitable in the case of
S. and even if the legal representation of P. could have made no difference to
the result of those proceedings, the same is not necessarily true in the case
of the freeing for adoption proceedings, in which effective legal
representation could well have had a material influence both on the decision to
free S. for adoption and on the decision relating to continuing contacts
between S. and her parents prior to and after her adoption.
While, therefore, a
finding of a breach of Article 6 in family proceedings should not in my view
inevitably lead to a separate finding of a breach of the procedural
requirements of Article 8, I consider that in the circumstances of the present
case such a separate finding is justified.
PARTLY DISSENTING OPINION OF JUDGE BAKA
I share the opinion
of the majority that there has been a breach as far as the fairness of the
procedure is concerned under Article 6 § 1 and also that there has been a
violation of Article 8 in respect of the applicants P. and C. as regards the
removal of S. at birth. My reasoning however under Article 6 § 1 is different
from the majority of the Court and I am not convinced that there has been a
violation of Article 8 of the Convention concerning all the applicants as far
as the subsequent procedures are concerned.
The majority was of
the opinion that the procedural shortcomings in the case – on which basis the
Court has found a violation of Article 6 § 1 of the Convention – have “deprived
the applicants of a fair and effective hearing in the court” and this fact
“seriously disadvantaged” them in protecting their interests (see paragraph
137)
My approach is
different. I also think that there has been a procedural violation of Article 6
in not granting the applicants time enough to find adequate legal
representation. This in my view gave the appearance of unfairness, which should
be avoided in a serious case like the present one. On this basis and on this
basis only, I found a breach of the relevant Article. I am however not
convinced that the applicants, even without legal representation, were completely
helpless or that they were prevented in any way from putting forward their
arguments effectively. The applicants from the beginning of the procedure until
the hearing had had the benefit of legal advice and legal assistance in a case,
which was primarily based on expert opinions. Moreover, all the other
participants in the proceedings (including the counsel for the Guardian ad
litem) were in agreement that there had been a fair hearing without any
identifiable irregularities or shortcomings.
I do think, as
Article 8 requires, that the subsequent care and freeing for adoption
proceedings served the best interests of the child and were intended to strike
the balance between the interests of S. and her parents. Consequently, the
interference of the national authorities served a legitimate aim and was based
on the applicable domestic provisions and practices. In these respects, there
is no serious disagreement between my view and that of the majority. On the
other hand, the question whether the interference was necessary in a democratic
society raises more complex issues.
According to the
majority of the Court, the procedural violation was so serious that they took
it into account again when they were examining the necessity requirements under
Article 8.
I admit that the
above approach has its basis in the case-law of the Court (see the McMichael v.
the United Kingdom judgment of 24 February 1995, Series A no, 307-B). In the
above-cited W. v. United Kingdom judgment of 8 July 1987 (at paragraph 119) the
Court extended the interpretation of Article 8 by deciding that the lengthy
duration of the proceedings resulted in a decision which could not be regarded
as necessary in a democratic society within the meaning of Article 8.
In the present
case, however, I am rather against this extensive interpretation of Article 8.
I believe that the lack of legal representation disclosed a procedural
violation of Article 6 § 1. The appearance of unfairness gave rise to a
violation of Article 6 § 1 but – not being decisive to the outcome of the
relevant procedures - it did not amount to a violation of Article 8.
1 “besore”: a condition caused by the swallowing of hair and
the biting of hair and nails
Hudoc reference
REF00003750
Document type
Judgment (Merits and
just satisfaction)
Title
CASE OF P., C. AND
S. v. THE UNITED KINGDOM
Application number
00056547/00
Date
16/07/2002
Respondent
United Kingdom
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