Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11468/85

by S.K.

against the United Kingdom

The European Commission of Human Rights sitting in private

on 15 October 1986, the following members being present:

MM. J. A. FROWEIN, Acting President

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

B. KIERNAN

A. S. GÖZÜBÜYÜK

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 March 1985

by S.K. against the United Kingdom and registered on

21 March 1985 under file No. 11468/85;

Having regard to

- the first report provided for in Rule 40 of the Rules

of Procedure of the Commission;

- the observations submitted by the respondent Government

on 16 October 1985 and the observations in reply submitted

by the applicant on 21 February 1986;

- the second report provided for in Rule 40 of the Rules of

Procedure of the Commission;

- the submissions made by the parties at the hearing on

15 October 1986;

Having deliberated;

Decides as follows:

THE FACTS

The facts as they have been submitted on behalf of the

applicant, a citizen of the United Kingdom born in 1954, by his

representatives, Messrs. Bindman and Partners, Solicitors, of London,

may be summarised as follows:

A child, T, was born on 20 June 1982 to the applicant and H,

to whom he was not married but with whom he had lived since October

1979. The applicant, H and T lived together in London. For two months

following the birth the relationship between the applicant and H

continued quite normally. However, as a result of H's worsening

mental health, the relationship seriously deteriorated thereafter,

with various incidents of violence occurring. One such incident gave

rise to a conviction of the applicant for assault occasioning actual

bodily harm to H on 23 February 1983, for which the applicant was

conditionally discharged for 18 months. At the end of May 1983, when

T was 11 months old, H went with T to the country for a short holiday.

She never returned to cohabit with the applicant.

As a result of H's worsening mental health she had been

largely incapable of caring for the physical and emotional needs of

the baby for most of the period since his birth. Consequently the

applicant, who was umemployed during this 11 month period, was

primarily responsible for the care of T during this time, a fact which

was recognised in the subsequent proceedings by the Judge at first

instance.

On 1 June 1983 H made her first contact with the Social

Services Department of the relevant County Council ("the Social

Services Department"). For part of the time up until 10 June 1983 she

stayed at a Social Services Department children's home with T. The

Social Services Department were concered about H's behaviour and its

effect on T.

On 10 June 1983 H was admitted as a compulsory patient under

the Mental Health Act 1959 to a psychiatric hospital and on the same

date a Place of Safety Order was obtained by the police under Section

28 (1) of the Children and Young Persons Act 1969 in respect of T. As

a result the Social Services Department became responsible for T and

he was placed with foster parents, Mr. and Mrs. A, on a short term

basis.

On 13 June 1983 the applicant visited H in hospital in the

presence of the Social Services Department social worker, Miss W. He

asked Miss W if he might take T back to London to take care of him

there, but this request was refused.

On 16 June 1983 the Social Services Department were granted an

interim Care Order in respect of T under Sections 28 (8) and

20 (1)(b) of the Children and Young Persons Act 1969 by the competent

Juvenile Court. The applicant attended court for this hearing.

However, due to his status as putative father of T the applicant was

not recognised under the Children and Young Persons Act 1969 as a

party to the Juvenile Court proceedings or as a parent or guardian

with a right to participate in the proceedings in accordance with the

Rules of the Magistrates' Court (Children and Young Persons) Rules

1970 which were the rules applicable at that time.

H was discharged from hospital and returned to London with the

applicant. However she immediately returned to the country. Following

the hearing also on 16 June 1983, and on many subsequent occasions up

until 8 August 1983, the applicant asked Miss W for access to T, but

was refused on the grounds that H did not want him to see the baby.

The Judge in the subsequent wardship proceedings found that in June

1983 Miss W intended to try to effect a rehabilitation of T with his

mother and then for both of them eventually to rejoin the applicant in

London.

The applicant's parents had been in very close contact with T

from his birth until he was taken to the country by H. They had

a close supportive relationship with the baby and were very attached

to him. On about 16 June 1983 the applicant's mother asked Miss W if

she and the grandfather could take over care of T. She also wrote a

letter at about that time stating that there was always a home for T

with his grandparents, that he was loved and wanted, and that he could

always come back to them however long he was away. This note was kept

on the file of the Social Services Department as requested by the

applicant's mother. This offer, together with the offer to assist the

applicant in caring for T was maintained throughout the Juvenile Court

proceedings and the subsequent wardship proceedings. The grandparents

had no statutory rights to apply for care and control of or access to

T until wardship proceedings were commenced.

The applicant first consulted solicitors on 7 July 1983, and up

until about 5 August 1983 he and his solicitors understood that the

Social Services Department intended to seek only a supervision order

and to re-unite T with H. The applicant hoped for a reconciliation

with H and the baby.

On about 5 August 1983 it became clear that the Social

Services Department intended seeking a full care order from the

Juvenile Court at the hearing of the care proceedings fixed for 9

9 August 1983. Because it was not possible for the applicant to be

joined as a party to the Juvenile Court proceedings on 9 August, nor

to present proposals which the Court had power to implement (although

it would appear from the judgment at first instance that the Court in

its discretion allowed him to give evidence), he issued wardship

proceedings in the Family Division of the High Court on 8 August 1983

making T a ward of court and seeking care and control of the baby. H

and the relevant County Council ("the local authority") were made

parties to the wardship proceedings.

On 9 August 1983 the competent Juvenile Court proceeded to hear

the care proceedings under the Children and Young Persons Act 1969 and

made a care order in favour of the local authority under Section 1

(2)(a) of that Act. This order was made notwithstanding a letter

sent to the Court by the applicant's solicitors informing the Court of

the wardship proceedings and requesting an adjournment of the Juvenile

Court proceedings pending a decision in the High Court. In the

wardship proceedings before the High Court the Social Services

Department initially contested the High Court's jurisdiction, in view

of the subsisting care proceedings.

In the subsequent wardship proceedings, the High Court found

that, although by this stage the Social Services Department had begun

to feel that they should not move T because he was settling so well

with the foster parents, it was nevertheless clear that the Social

Services Department were keeping open three options: first, to return

T to his mother; secondly, to return T to the applicant and his

family; and, thirdly, for T to remain with the foster parents, which

constituted their interim decision.

For the purpose of exploring the second option the local

authority then asked the social services department for the area in

London where the applicant lived to make an assessment of the

applicant's ability to care for T. On 21 August 1983 the local

authority permitted the applicant, who had at that time not seen T for

84 days, to see him at their offices for a period of one hour.

Following that visit the applicant saw T on three further occasions at

the local authority offices for a period of one hour on each occasion.

He was not allowed to take T out by himself.

During July and August 1983 H led an itinerant life in the

country and on 7 September 1983 she was admitted to the same

psychiatric hospital for a second time under the Mental Health Act

1959. She remained there for a few days before moving to a hostel

providing after care for pyschiatric patients.

On 31 August 1983 the social services department for the area

where the applicant lived provided the assessment requested by Miss W.

This recommended that T should be returned to the applicant and his

family. Since this opinion differed from Miss W's own opinion it was

agreed that the two Departments should obtain the decision of a

Probation Officer as an independent arbitrator. This step was never

taken by Miss W, who did not refer to the conflicting assessment in

her affidavit of 5 September 1983 in the wardship proceedings, a fact

for which she was criticised by the High Court.

On 24 November 1983, on the applicant's summons in the

wardship proceedings for access and directions, it was ordered that

the Official Solicitor should represent H on the grounds of her mental

disability. The local authority also withdrew its objection to the

High Court's jurisdiction. It was also ordered that the applicant

should have twice monthly access periods of two hours duration at the

home of T's foster parents, and that he be able to take his parents

with him on access visits if he wished. Thereafter regular access

proceeded on this basis until a final order was made in the wardship

proceedings in June 1984.

On 10 January 1984 the care order in favour of the local

authority was discharged but the local authority continued to

have custody of T by virtue of the interim care order made in the

wardship proceedings. On the same day a case conference was held at

which it was decided that the option of returning T to the applicant

was not open and that T should remain permanently with the foster

parents with whom he was already placed. The High Court judge who

subsequently heard the wardship application stated:

"I formed the impression that this decision was effectively the

decision of Miss W, having regard to the composition of the group

who considered the matter and the lack of any real contact

by the others in the group with the parties (concerned). It is

also to be remembered that as early as November 1983 Miss W had

thought it likely that the local authority could not put T with

the applicant or his mother. The foster father ... was aware in

November or December 1983 that T either was not going to be or

may not ever be returned to either of his parents".

The applicant was not informed of the case conference.

The case was fixed to be heard by the High Court for a

substantive hearing of the care, custody and access applications on 19

January 1984. However, on the evening before the hearing the

applicant and his solicitors heard that it was proposed by the local

authority that the foster parents should adopt T. In view of this

quite unexpected decision an adjournment was requested on the

applicant's behalf. On 10 February 1984 the applicant nevertheless

applied to expedite the adjourned hearing, which was held on 1 to 11

May 1984.

Judgment was reserved until 25 June 1984 when the Deputy Judge

of the High Court made a final order that T should remain a ward of

court during his minority or until further order, that care and

control of T should be granted to his foster parents, Mr. and Mrs. A,

and that the applicant should have access to T twice a month for

periods of three and a quarter hours at the foster parents' home and

that H should have reasonable access.

In reaching this conclusion the Judge weighed at length the

options of granting care and control to the applicant, but concluded

on balance, that although he had shown some considerable abilities in

caring for T during his first year, the subsequent year spent with the

foster parents and the stability and security which their family had

provided had established a more reliable home environment for the

child. In so doing he expressly stated as follows:

"I have been reminded by counsel ... that my paramount

consideration should be the present and future welfare of T, and

... that even if the [local authority's] conduct at any

stage was misguided or inappropriate I should not allow such

matters to influence my mind ... I do not pass any judgment as

to the behaviour of the [local authority] in the period

November 1983 to January 1984. It is sufficient for me to say

that Miss W candidly admitted that it would have been better to

have referred to the aspect of adoption in her November

affidavit. I consider that my function is to look at the the

current situation of T and consider his future. The primary

question is where he is to live and who is to care for him?"

The applicant's appeal against this decision to the Court of

Appeal was dismissed on 25 September 1984. The Court of Appeal

accepted the unchallenged criticisms of the conduct of the case by the

local authority and in particular the rigidity of Miss W, her

reluctance to consider the possibility of T being with the applicant

and the consequential decision by the local authority that T should be

adopted. Nevertheless the Court held that there was sufficient

evidence before the trial judge to fully justify his conclusion that

at the time of the hearing it was in T's best interests that he remain

with the foster parents. The Court continued that, although the issue

was not strictly before it, this would not appear to be a case in

which adoption should be contemplated and was one in which the

applicant's access to T should be encouraged and nurtured. The

applicant's advisers considered that a further appeal to the House of

Lords would have been without any hope of success, and so no such

appeal was made.

COMPLAINTS

The applicant complains of a breach of Articles 6, 8, 13 and

14 of the Convention.

As regards Article 6 he argues that a right to apply for the

custody or care and control of, and access to, a child is a "civil

right". He claims that he had no right to make such an application

once the police had obtained the Place of Safety Order and the local

authority had commenced care proceedings pursuant to the Children and

Young Persons Act 1969. The applicant accepts that he did have a

right to make such an application in the context of wardship

proceedings, but emphasises that such a right is subject to

limitations once the Place of Safety Order had been granted and the

care proceedings had been begun. The applicant therefore contends that

he did receive a fair hearing within a reasonable time by an

independent and impartial tribunal established by law as guaranteed by

Article 6 para. 1. As regards the delay he points out that it took

almost nine months from the commencement of wardship proceedings to

the final hearing, that he had been denied regular acces to T (and he

did not see the child for 84 days following his removal by his mother)

and that at the date of judgment in the wardship proceedings T had

been away from him for more than one year. He argues that the effect

of this was to prejudge his claim for care and control of the child as

against that of the foster parents.

The applicant further contends that he, H and T lived as a

family unit for a substantial period of time notwithstanding that he

and H were not married. He argues that the actions of the local

authority in refusing to allow the applicant and his parents to assume

care and control of T and in denying him access to the child for 84

days failed to respect his family life in breach of Article 8 para. 1

and that these actions cannot be said to have been "necessary in a

democratic society" pursuant to Article 8 para. 2. He further argues

that the procedures leading to the above decisions, based as they were

on the opinion of one social worker, Miss W, provided insufficient

safeguards and showed a total lack of respect for the essentials of

"family life".

The applicant also complains that the Place of Safety Order

and the subsequent interim care order in favour of the local authority

removed whatever parental rights he had regarding T. His only remedy

was to issue wardship proceedings, which he duly commenced, but

following the decision of the House of Lords in A. v. Liverpool

City Council such proceedings no longer provide an effective remedy

for the past mistakes of the local authority. The applicant claims

that he did not therefore have access to an effective remedy before a

national authority in breach of Article 13 as regards his claim to be

entitled to care and control of, or access to T.

Finally, the applicant contends that the rights guaranteed by

Articles 6, 8 and 13 of the Convention are not accorded to him in part

by reason of his sex and/or his marital status, in breach of Article

14.PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 March 1985 and registered

on 21 March 1985.

On 10 July 1985 the Commission commenced its examination of

the admissibility of the application and decided to bring the

application to the notice of the respondent Government pursuant to

Rule 42 (2) (b) of its Rules of Procedure, and to request them to

submit observations in writing on its admissibility and merits.

The observations of the respondent Government were submitted

on 16 October 1985 and the applicant's observations in reply were

submitted after two extensions of the time limit imposed by the

President of the Commission, on 21 February 1986.

The Commission resumed its examination of the admissibility of

the application on 13 May 1986 and decided, pursuant to Rule 42(3)(b)

of its Rules of Procedure to invite the parties to make further oral

submissions on the admissibility and merits.

At the hearing, which was held on 15 October 1986, the parties

were represented as follows:

The Government

Mr. I. Hendry Agent

Mr. James Holman Counsel

Mr. R. Aitken Department of Health and Social

Security, Adviser

Ms. P. Barrett Department of Health and Social

Security, Adviser

The applicant

Mr. Stephen Bellamy Counsel

Mr. Nicholas O'Brien Adviser

Ms. N. Angell Solicitor, Bindman & Partners,

Adviser.

The applicant was present in person.

SUBMISSIONS OF THE PARTIES

Submissions of the respondent Government

The Facts

The respondent Government contend that the report prepared by

the social worker from the social services department for the area

where the applicant lives cannot accurately be referred to as an

"assessment" in view of the limited contact which the social worker

concerned had with the applicant and the child. Further the Government

contend that it is unjustified to criticise Miss W for not referring

to this report in her affidavit of 5 September 1983 since the local

authority were contesting the jurisdiction of the High Court in

wardship, and the sole purpose of the affidavit in question was to

obtain the Court's leave for T to be taken out of the jurisdiction for

a holiday.

The respondent Government further point out that reference was

made to the possibility of T being adopted at the hearing concerning

access in November 1983. In view of this, and the terms of Miss W's

affidavit of 29 November 1983, they contest that the local authority's

decision in January 1984 to encourage the foster parents to adopt T

was "quite unexpected".

In addition the respondent Government refer to the comments

regarding the applicant's capabilities and character made by the judge

at first instance, which suggest that the applicant would be inclined

to be stubborn and dogmatic and did not fully appreciate the strains

of parenthood of a young child as opposed to the care of a baby. In

addition the trial judge accepted that Miss W saw the applicant

regularly between June and August 1983 which gave her "an opportunity

... to form some impression of him".

The respondent Government finally point out that the judge

giving the leading judgment of the Court of Appeal revised his

judgment in the light of remarks made by counsel for the local

authority in answer to criticisms made of Miss W's conduct of the case

and the Court did not accept the "unchallenged criticisms" which had

been made of such conduct.

The domestic law and practice

The application raises issues relating to the compulsory

placing of a child in care by order of the Juvenile Court under the

Children and Young Persons Act 1969 (the 1969 Act), the wardship

jurisdiction of the High Court, and the guardianship legislation.

Place of safety orders under the 1969 Act

The decision to place a child in a place of safety is taken on an

application to the Juvenile Court, providing that the court is

satisfied that conditions of risk apply to the child. The child may

then be detained in a place of safety for a maximum of 28 days from

the Court's order.

Under Section 28 (3) of the 1969 Act, a person who detains any

child under a place of safety order must, as soon as practicable

after doing so, inform the child, and any parent or guardian of the

detention and the reason for it. "Parent" does not include the

putative father of an illegitimate child. The word "guardian"

includes, by virtue of Section 107 (1) of the Children and Young

Persons Act 1933 and Section 70 (1) of the 1969 Act, a person who has

for the time being the charge of or control of the child or young

person.

During the 28 days period an application may be made under

Section 28 (6) of the 1969 Act for an interim care order. If the

local authority or another interested person wishes to retain the

child in protected surroundings after the 28 day period, it is

necessary to make the child a ward of court, or begin care proceedings

under Section 1 of the 1969 Act, applying for an interim order under

Section 2 (10) of the Act, or to apply under Section 28 (6) of the

1969 Act.

On 16 June 1983 T became subject of an interim care order in

accordance with Section 28 (6) of the 1969 Act. Such an order is also

limited to a maximum of 28 days, although an interim care order made

under Section 2 (10) of the 1969 Act may be renewed.

The local authority may apply to the Juvenile Court for a

child to be placed in its care. Under Section 2 (2) of the 1969 Act,

the local authority is in certain circumstances under a duty to do so.

The grounds of such an application are set out in Section 1 (2) (a) -

(f).

In applying to the Juvenile Court, the local authority must

show one of the grounds set out in Section 1 (2) (a) - (f) and show

that the child is in need of care or control which it will not receive

unless one of the orders specified in Section 1 (3) of the 1969 Act is

made.

The effect of a care order under Section 1 (3) (c) of the 1969

Act is that the rights of the parents, except the rights to agree to

adoption and to influence the child's religious beliefs, are taken

from them and given to the local authority. The powers and duties of

the local authorities with respect to children and young persons

committed to care are contained in Section 29 of the 1969 Act which is

now reproduced in Sections 10, 11 and 12 of the Child Care Act 1980,

which has subsequently come into force.

Care proceedings (unless under the ground in Section 1 (2) (f)

of the 1969 Act) are civil proceedings, governed by the Magistrates'

Courts (Children and Young Persons) Rules 1970 (SI 1970/17/92). The

parties to the proceedings are the local authority and the child, who

may be represented, and receive legal aid in appropriate cases. The

child may have his parent or guardian conduct his case on his behalf

either directly or indirectly through a lawyer. However, where the

Court thinks that there may be a conflict of interests between the

child and the parent or guardian, the court may make an order that

those interests be separately represented. At the time of the

relevant proceedings in June 1983 this procedure for separate

representation had not been enacted, with the result that the natural

parent or guardian was not entitled to legal aid in their own right in

the proceedings. To the extent that they were not acting on behalf of

the child, they had a right to attend the hearing of an application

for an interim care order or a care order and give or call evidence

challenging evidence made against them by the local authority. In

practice, the Juvenile Court had and has inherent jurisdiction to

allow separate legal representation in such cases (R v. Gravesham

Juvenile Court ex parte B (1982) 4 FLR 312) and could as a matter of

practice control its own proceedings, for example allowing cross

examination of local authority witnesses (R v. Milton Keynes Justices

ex parte R (1979) 1 WLR 1062).

Other persons who are entitled to attend care proceedings

include any foster parent or other parent with whom the child has had

his home for a period of not less than six weeks ending not more than

six months before the date of the application if their whereabouts is

known to the applicant for the care order. The Junvenile Court may

allow the participation of such persons as may be appropriate in any

case.

An appeal lies from the Juvenile Court to the Crown Court

under Section 2 (12) of the 1969 Act. The Crown Court reviews the

decision by way of a rehearing. The local authority has no general

right of appeal where no order is made under Section 1 (3) of the 1969

Act, or where the one made was not the one sought. Appeal on a point

of law lies to the Divisional Court of the High Court.

Wardship

The jurisdiction to make a child a ward of court originated

in the feudal concept of the Crown as "parens patriae" and this

jurisdiction is now exercised by the Family Division of the High

Court. Where a child becomes a ward of court the Court assumes

responsibility for all aspects of his welfare. It may make orders as

to where the child is to live, with whom, who may have access to him,

and as to his religion, education and marriage if under 18.

In accordance with Section 1 of the Guardianship of Minors Act

1971, in determining which orders to make, the High Court must have

regard to the child's welfare as the "first and paramount

consideration". The Court may grant "care and control" of the child

to a person or body, including for example the local authority, which

must then act on the Court's directions. A contemporaneous supervision

order may also be made in favour of another person or body, unless the

local authority has been given care and control of the child by virtue

of Section 7 (2) of the 1969 Act. The child remains a ward until

either he attains his majority, or the Court orders that he shall

cease to be a ward, and no important step can be taken in the child's

life without the court's consent.

Anyone who can show an appropriate interest in the child's

welfare can apply to make a child a ward of court. Section 41 (1) of

the Supreme Court Act 1981 provides that no child may be a ward of

court other than by a court order, which is obtained by an application

for an originating summons in the High Court. The procedure is set out

in Order 90 of the Rules of the Supreme Court, which have the result

that a child becomes a ward of court immediately the originating

summons is issued, but that, unless an appointment for the hearing of

the summons is made within 21 days, the wardship automatically lapses.

The first appointment will be before the Registrar who gives

directions as to what is to be done before the case may be heard by a

judge, including an order as to access if the person with physical

custody of the child agrees. An appeal lies from the Registrar to a

judge in chambers.

The child may be represented in wardship proceedings by a

guardian ad litem, usually the official solicitor, who is entirely

independent of the executive. The object of appointing the official

solicitor is to give the court the assistance of an experienced

and impartial person, whose interest is the child's welfare.

Subject to means, legal aid is available for the representation

of parents' interests in wardship proceedings in the High Court. They

may also apply to accelerate the proceedings under Order 43 of the

Rules of the Supreme Court. Appeal lies from the High Court to the

Court of Appeal, and to the House of Lords, but legal aid is not

normally available for defendants in ex parte applications which are

not initiated by the person concerned.

While a child is a ward of court, any party may bring the case

back before the Court for a variation of the existing order or for

directions as to its interpretation or application.

Wardship therefore provides an entirely separate jurisdiction

from that of the Juvenile Court concerning the care of a child under

the 1969 Act. The relationship between the responsibilities for the

care of the child imposed on local authorities by statute under the

1969 Act and otherwise, and those exercised by the High Court under

the wardship jurisdiction is set out in the judgment of Lord

Wilberforce in A v. Liverpool City Council (HL (1981) 2AER p. 385).

Lord Wilberforce reviewed first the scope of the statutory

responsibilities of the local authority, in respect of which he held

that there was no general reviewing power of their exercise by the

court. He went on to add "this is not to say that the inherent

jurisdiction of the High Court is taken away. Any child, whether

under care or not can be made a ward of court ... In cases ... where

the court perceives that the action is within the sphere of discretion

of the local authority it will make no order and the wardship will

lapse. But in some instances there may be an area of concern to which

the powers of the local authority, limited as they are by statute, do

not extend. Sometimes the local authority itself may invite the

supplementary assistance of the court. Then the wardship may be

continued with a view to action by the court. The court's general

inherent powers are always available to fill gaps or supplement the

powers of the local authority; what it will not do (except by way of

judicial review where appropriate) is to supervise the exercise of

discretion within the field committed by statute to the local

authority".

Hence the wardship jurisdiction is available where there is a

lacuna in the relevant statutory provisions which restrict a local

authority's decision-making, where something wholly exceptional

requires the court's intervention, and to review action by the local

authority which is so unreasonable as to require the intervention by

the court. This last possibility is the availability of judicial

review as to the exercise of the administrative discretion vested in

the local authority.

Guardianship

Under Section 14 Guardianship of Minors Act 1971 (the 1971

Act) the father of an illegitimate child may apply to the High Court,

County Court or Magistrates' Court for custody or access to a minor.

Section 9 (1) of the 1971 Act states:

"The Court may, on the application of the mother or father

of a minor (who may apply without a next friend)

make such order regarding -

a. the legal custody of the minor;

b. the right of access to the minor of his mother

or father as the court thinks fit having

regard to the welfare of the minor and the

conduct and wishes of the mother and father."

By virtue of Section 14 of the 1971 Act, this provision

applies equally to an illegitimate minor, and the reference to father

and mother or parent of such a child is construed accordingly.

Admissibility and merits

Article 6

The respondent Government submit that the applicant had an

opportunity, which he did not take, to make representations to the

court having jurisdiction in the care proceedings. Further, the

applicant could have applied for custody and access to the court under

guardianship legislation, which makes specific provision for the

application by fathers of illegitimate children. He further had an

opportunity, which he did use, to bring the matter before the wardship

court. In view of these opportunities, the respondent Government

contend that the applicant had available to him access to court as

required by Article 6 para. 1 of the Convention for the determination of

his civil rights concerning the child.

Although the applicant would not be considered as a "parent"

in the context of the care proceedings before the Juvenile Court, he

would very probably have succeeded in persuading the court that he was

a "guardian" and thus would have been entitled to apply for separate

representation before the court. In this respect he contends that for

the first 11 months of T's life he was the principal carer for the

baby, in which circumstances he would be regarded as having been the

person with "charge of, or control over" the child in the terms of

the definition of "guardian" in Section 107 of the Children and Young

Persons Act 1933.

As a guardian he would have been able to participate in the

proceedings as set out above. In fact, it appears from the affidavit

of Miss W of 16 August 1983 (para. 10) that the Juvenile Court did

allow the applicant to give evidence and the opportunity to

cross-examine witnesses, which latter opportunity he did not take up.

It does not appear however that he sought to argue that he was a

"guardian" which would have enabled him to take a greater part in the

care proceedings. Had the applicant obtained legal custody, or joint

legal custody with the child's mother under the guardianship

legislation, he would certainly have been a guardian for the purposes

of care proceedings. In any event the applicant was entitled to

notice of those proceedings under Rule 14 (3) (b b) of the

Magistrates' Court's Children and Young Persons Rules 1970 and

further had the opportunity of participating in the proceedings by

virtue of the Court exercising its inherent jurisdiction.

Furthermore, the applicant had failed to take steps pursuant

to the guardianship legislation to formalise his legal status

vis-à-vis T. The guardianship legislation governs relationships

between unmarried parents of a child with that child, including the

examination of custody, care and control, and access where such

questions arise on the breakdown of a relationship between cohabitees.

Since the applicant knew for some time that T's mother had a

serious mental health problem, the respondent Government submit that

he should have taken the opportunity to secure recognition of the fact

that he was the main carer for the child, if this was so, in the

child's best interests, by applying for legal custody of the child.

Had he done so, his legal status in relation to the child would have

been secured in the event of any difficulties which might arise from

actions taken by the mother due to her mental health problems. Since

the applicant had not taken such steps, his status towards T was not

established, and he contributed to his own disadvantage in the

subsequent proceedings which arose as to the child's welfare.

The respondent Government further argue that the applicant

could have issued proceedings under the guardianship legislation,

notwithstanding the existence of a care order in respect of the child.

Although the two sets of proceedings could not have been heard

together, since the care proceedings would be heard by a juvenile panel

of magistrates, whereas a guardianship application could be heard by

the Magistrates' Court as normally constituted, the respondent

Government contend that an application for guardianship could have

been heard immediately before the hearing of an application for a

full care order. The latter would have proved unnecessary if the

applicant had been awarded custody under a guardianship application.

That jurisdiction for such proceedings would have existed,

notwithstanding the care proceedings, is confirmed in the Government's

submission by the case of R. v. Oxford Justices ex parte "D"

(Judgment of 19 June 1986, unreported).

Furthermore, the applicant had the opportunity for a fair

hearing before an impartial tribunal established by law in accordance

with Article 6 of the Convention in the proceedings in wardship. The

originating summons was issued on 8 August 1983, but the summons for

directions was only heard on 24 November 1983, which implies that the

applicant did not apply to expedite the hearing following the

commencement of the wardship proceedings. Although the final hearing

did not begin until 1 May 1984, the hearing listed for January 1984

was adjourned at the applicant's request. There is considerable case

law in England, which indicates that cases in which custody is

disputed should be heard expeditiously, but the nature of legal

proceedings in England and Wales requires those initiating such

proceedings to take the initiative to pursue their remedies with

vigour. Until the application for expedition of the wardship hearing

made on 10 February 1984, the applicant does not appear to have

pursued his case with the necessary vigour. He thereby appears to

have contributed to the delay which he claims subsequently prejudiced

his claim for care and control before the wardship court. He

nevertheless obtained a full hearing before that court, and

subsequently on appeal to the Court of Appeal.

Having regard to the opportunities for access to the courts

which were available to the applicant, but which he did not take, and

to the hearing in the wardship proceedings in which he did

participate, the respondent Government submit that there was no denial

of the applicant's access to the court contrary to Article 6 para. 1

of the Convention, and that his complaints in this respect are

manifestly ill-founded.

Article 8

The respondent Government contend that the decision of the

local authority to prevent and subsequently restrict the applicant's

contact with his son between 10 June 1983 and 24 November 1983 was in

conformity with Article 8 of the Convention.

The Court affirmed in the Marckx case (Eur. Court H.R., Marckx

judgment of 13 June 1979, Series A no. 31) that Article 8 extends to

family relationships outside marriage and the respondent Government

accept that, to the extent that the applicant cared for T during the

first months of his life, he was entitled to respect for this family

life under Article 8 of the Convention.

It was open to the applicant to take proceedings under the

1971 Act, to establish his guardianship status in respect of T. Had

he taken this step at an early stage, before the child was removed

from his home, he would have been afforded an adequate opportunity to

secure respect for his family life. Any court seised of proceedings

under the 1971 Act would have given first and paramount consideration

to the welfare of the child, but this would not have involved any

breach of Article 8 from the applicant's point of view, since

Article 8 para. 2 provides for the protection of the health of the

child and his rights and freedoms, if necessary over and against a

parent.

Since the applicant had failed to take guardianship

proceedings, it was open to the local authority to take a decision in

the interest of the child to prevent access by the applicant. In the

absence of any order under the guardianship legislation in favour of

the applicant as father of the illegitimate child, the mother's rights

in respect of such a child are greater than those of the father.

Section 85 (7) Children Act 1975 provides: "except as otherwise

provided by or under any enactment, while the mother of an

illegitimate child is living she has the parental rights and duties

exclusively".

In the present case the local authority considered it

necessary to refuse and then restrict the applicant's access to T to

ensure that the process of rehabilitation of T to his mother stood a

reasonable chance of success. In effect, the local authority were

giving preference to the mother's rights to respect for her family life

as opposed to the interests of the father when rehabilitation was

considered. Accordingly the local authority took account of the

mother's wishes that the applicant should not have access to the child

while the place of safety order was in operation. The local authority

took the view that great emphasis should be placed on providing the

child with stability, a characteristic which had been absent from the

first 11 months of T's life. The applicant's behaviour and his effect

on T's mother's behaviour were both factors which were taken into

account and militated against allowing him access.

However the option of rehabilitation of T to the applicant and

his extended family was under consideration between June and October

1983. The possibility was alluded to in the social enquiry report

which was before the Juvenile Court on 9 August 1983, although it was

a social worker's view that if the applicant sought custody for T,

this would not be an "improved option".

The respondent Government observe that T had the right to

respect for his family life. Having regard to this, and having

carefully taken into account the father's circumstances, the local

authority's attempt to rehabilitate the child with his mother did

impose constraints on the access which the authority considered could

be given to the applicant. It is submitted that this approach is

fully justified by reference to paragraph 2 of Article 8.

The wardship proceedings instituted by the applicant enabled

him to challenge the local authority's decisions on access. The

wardship court decided that the welfare of the child required that

care and control remained with the foster parents, but that access be

given to the applicant. This conclusion was reached by the court

after very full and careful consideration of all the circumstances of

the case. The respondent Government contend that this decision did

not put them in breach of Article 8, since the domestic authorities

enjoy a considerable measure of discretion in taking into account

factors which may be critical for the protection of the health of a

child.

With regard to the conduct of the care proceedings, the local

authority's reasons for its actions are set out in the affidavits of

the social workers concerned dated 16 August and 29 November 1983.

The local authority's intention was to "afford T the security which

his recently unsettled state indicates he needs" by virtue of staying

with his present foster parents. Having regard to the circumstances

of the case, and in view of the mother's mental history, the removal

of the child from the joint household in London and subsequent

disruption justified the local authority's action which itself can be

seen as coming within the exceptions contained in Article 8 para. 2,

as in accordance with law and necessary in a democratic society for

the protection of T's health. This is reflected in the order made by

the Juvenile Court on 9 August 1983 under Section 1 (2) (a) of the

1969 Act, that the Court was satisfied that T's proper development was

being avoidably prevented or neglected, or that he was being

ill-treated and also that he was in need of care and control which he

was unlikely to receive unless a care order made under that Section

was made in respect of him. Thus the court committed T to the care of

the local authority by a deliberate decision of the Juvenile Court.

Had the Court decided not to make a care order, T could have been

returned to the applicant as his guardian.

In any event, access to T, albeit restricted, was given to the

applicant by the local authority.

Article 13

The respondent Government contend that the applicant had an

effective remedy before a national authority for his complaint of a

violation of Article 8 of the Convention by taking wardship or

guardianship proceedings. The respondent Government dispute the

applicant's contention that his only remedy was the wardship

proceedings. It is nevertheless a fact that the wardship proceedings

were taken, jurisdiction was assumed by the High Court, and an order

was made. The fact that the wardship court did not award the

applicant care and control of his son does not mean that he did not

have an effective remedy, since it was fully open to the Court to make

such an order. After a full hearing, and careful consideration of all

the evidence, he was ordered only specified access. For the reasons

set out above, it is not accepted by the respondent Government that

the wardship jurisdiction is so circumscribed by jurisdictional

difficulties as not to amount to a remedy that could be regarded as

effective in a reasonable period of time.

The place of safety proceedings and the care order proceedings

did not prevent the applicant from being heard or cross examining

witnesses before the Juvenile Court in the care proceedings and

thereby from persuading that Court not to make a care order. Nor did

those proceedings prevent the wardship court from considering the

question of T's custody or access to him by the applicant. Although

technically the applicant was not a party to the care proceedings, he

was able to participate effectively, but decided not to participate to

the extent which he could have done.

The respondent Government submit that the place of safety

proceedings and the care order proceedings would not have prevented

the guardianship court from considering the question of the legal

custody of T, or access to him by the applicant, in view of Section

9(1) and Section 14 of the 1971 Act.

Article 14

The respondent Government contend that in view of the case law

of the Commission, a natural father of a child born to unmarried

parents is not entitled, under Article 8, to an exactly similar

position in law as that of the mother. Hence the respondent

Government contend that there was no discrimination contrary to

Article 14 in the applicant's locus standi in the care proceedings.

The respondent Government refer in this connection to the

review of the law of legitimacy carried out by the Law Commission,

which examined the possible consequences of equating the rights of

unmarried parents. The Law Commission's conclusion was ultimately

clearly against such a course for reasons intended to ensure the legal

certainty of the child's status, and thus motivated by the child's

best interests.

In its decision on the admissibility of application No.

9697/82, Johnston v. Ireland, Dec. 7.10.83, to be published, the

Commission stated that the finding in the Marckx case (supra):

"(D)oes not mean that the 'illegitimate' family is entitled

to benefit from the same legal regime as the 'legitimate'

family in every respect."

Thus, for example, the Commission considered that Article 8

did not apply to the State to grant a right to custody in care to a

natural father of a child born out of wedlock where the parents were

free to marry but had chosen not to do so (Applications Nos. 9639/82,

Dec. 15.3.84, to be published and No. 9519/81, Dec. 15.3.84,

unpublished and No. 9558/81, 15.3.84, unpublished). In those decisions

the Commission recognised that, where unmarried parents of a child

wished to maintain family relations, they are free to marry and thus

obtain the legal advantages they require. Where however they choose

not to marry in order to avoid the application of marriage and family

law, they are themselves responsible for the legal consequences of

their choice.

Accordingly the respondent Government submit that the

differences in treatment of a father who is not a "guardian" under the

Magistrates' Court Rules 1970, and a mother of a child born out of

wedlock, have an objective and reasonable justification that does not

amount to discrimination contrary to Article 14 of the Convention.

Furthermore, in the present case, the applicant contends that

he was the major carer for the child in his early months, and it was

therefore open to him to argue that he was the "guardian" of the child

as defined by the Magistrates' Court Rules 1970, or to have taken

guardianship proceedings under the 1971 Act, and thereby experience no

difference in treatment as compared with the mother of the child under

the Rules.

B. Submissions of the applicant

The Facts

The applicant disputes the contentions of the respondent

Government in respect of the facts contained in their observations on

admissibility and merits. He points out that the assessment prepared

by the social services department for the area where he lived was

requested in August 1983 by the local authority and the circumstances

in which it arose are described by the judge at first instance in the

wardship proceedings in his judgment dated 25 June 1984. Miss W's

affidavit of 29 November 1983 exhibits, as exhibit 2, the report

prepared by that social services department which was relied upon by

the local authority in the proceedings before the Juvenile Court.

Furthermore, the report, dated 31 August 1983, was before the Court in

the wardship proceedings, in the possession of all of the parties, and

was in no way challenged or called into question in those proceedings.

It is relevant to stress in this respect that at the time that this

report was requested by the local authority by way of an assessment of

T, T was in the care of long term foster parents, and the applicant

had not been permitted to see T by the local authority, and only saw

him on 21 August 1983, ten days before the assessment was finally

prepared. Nor were the applicant's parents allowed to see T and it was

therefore impossible, by virtue of the local authority's decisions,

for the applicant and his parents to be observed together with T for

the purpose of preparing this report.

It was only after receipt of the report dated 31 August 1983,

that Miss W decided to request the competent Probation and After

Care Service to prepare a further report as a means of reconciling the

differences of opinion between her point of view and that expressed in

the report of 31 August 1983.

In the events which had happened, the report of 31 August 1983

was not made known to the applicant until after leave had been given

for T to be taken out of the jurisdiction on 1 September 1983. Had

the report been before the Court when it considered that application,

it might have been open to the applicant to request that T stay with

him for the period of the holiday, and this request might indeed have

been granted by the Court. The applicant thereby lost a valuable

opportunity to apply to care for T during this period, which could have

been highly relevant to the final decision taken by the Court in

wardship.

With regard to the reference to adoption during the hearing on

24 November 1983, the trial judge asked for information as to whether

the local authority's proposal would be that T's best interests were

to be met by long term fostering, or by an adoption order if T were

left in their care after the originating summons had been heard. The

need for the judge to make this enquiry as to the local authority's

position was due to the fact that the latter had not yet made clear to

the Court, or the applicant, what their future plans for T were. This

is illustrated by the affidavit of Mr. W of 29 November 1983, which

merely stated that T needed "the stability of his current placement"

but did not set out the local authority's plans if an order placing T

in their care was made. The absence of any specific reference to

adoption in this affidavit suggests that adoption was not to be

recommended, and it was therefore the more unexpected and surprising

that this suggestion was ultimately made in the proceedings before the

High Court on 19 January 1984.

However, from the evidence given at first instance on behalf

of the local authority, it appears that the prospect of adoption was

discussed with the foster parents before Miss W swore her affidavit on

29 November 1983, and that the foster parents had indeed decided that

they wished to adopt T prior to the swearing of that affidavit. These

discussions and decision were not revealed to the applicant and he was

not involved in them. He was informed of the foster parents' decision

to adopt on 19 January 1984, and of the prior discussions when

evidence was given to the Court between 1 and 11 May 1984. Hence

there was no reason, prior to 18 January 1984, for the applicant, or

his legal advisers to assume that such important and final decision

as adoption was in contemplation.

With regard to the adjournment on 19 January 1984 of the

originating summons, this arose not only at the request of the

applicant, but also to permit the foster parents to be joined in the

wardship proceedings, to be represented and to file evidence and

because, owing to an error by court staff, no report had been prepared

by the Court Welfare Officer, although this had been requested on

24 November 1983, for consideration by the Court. These matters were

not within the competence, responsibility, or knowledge of the

applicant until 19 January 1984, and hence he cannot be held

responsible for the delay which they caused. He nevertheless sought

to expedite the hearing by so applying on 10 February 1984, but the

Court declined to make an order for expedition because there was no

earlier court available. The delay which subsequently arose between

January and May 1984 was highly significant, in view of T's age. Miss

W conceded in her affidavit of 29 November 1983, that had she referred

to the decision of the local authority to propose adoption earlier,

delay would have been avoided.

With regard to the criticisms of the applicant's abilities and

character expressed by the judge at first instance, the applicant

refers to other passages in the judgment, where a different opinion

was expressed. In addition, the applicant refers to the judgment of

the Court of Appeal, which found "that in parts of the judge's

reasoning he expressed his criticism of the father in terms more

emphatic that the evidence precisely justified".

Finally, with regard to the revision of the judgment of the

Court of Appeal in the light of the submissions made on behalf of the

local authority, the applicant points out that Lord Justice Purchas

did not revise his judgment. He specifically stated that he shared the

views expressed in the leading judgment (before revision) relating to

the decisions and actions of the local authority and their officers in

the early stages "of this unfortunate story". He went on to refer to

"the justifiable reaction of the father to those decisions and

actions. I appreciate those errors, (which have been referred to),

may well have arisen from a premature view that the child should be

adopted".

Domestic law and practice

Place of safety orders

The applicant accepts the respondent Government's summary of

the law in this area subject to the following points. First, the 1969

Act does not oblige the applicant for a place of safety order to

inform the child's parent or guardian of the intention to apply for

such an order, nor are they, or the child, entitled to appeal, give

evidence, make representations, nor have legal representation.

Although there may be situations where the child is in imminent

danger or where it is impractical to inform the parent or guardian

before making the application, there are also situations where neither

of these factors apply, and where there is no reason for the parent or

guardian to be kept ignorant of the application and prevent it thereby

from appearing and being represented. Secondly, there is no right of

appeal from a place of safety order subject only to the right to apply

for judicial review under Section 32 Supreme Court Act 1981. The

wardship jurisdiction is excluded (re E Minors (wardship

jurisdiction) 1983 1 WLR 541).

As a result, once a child is removed from its parents or

guardian under a place of safety order for up to 28 days, subject to

judicial review on a point of law only, there is no available remedy

against the making of such an order. As a result, in the long term,

the local authority which has applied for a place of safety order is

in a tactically advantageous position of being in physical possession

of a child when care proceedings are commenced, and this very often

leads to very long stays in care.

The law is unclear as to the exact relationship and powers,

duties and rights of the successful applicant for a place of safety

order and the child taken under the place of safety order. The order

only gives the applicant authority to take and then detain the child

for up to a maximum period of 28 days. The law makes no provision for

a parent or guardian to have any right of access to the child subject

to a place of safety order.

Interim care orders

The law as summarised by the respondent Government is

accepted, subject to the following clarifications of the way in which

it applied to the applicant in the present case, questions made

complex by the introduction of an amendment to the relevant rules

during the course of these proceedings.

Only the local authority as applicant for a care order, and

the child, of whatever age, are parties to care proceedings. Parents

and guardians, as defined by Section 17 (1) of the 1969 Act, are not

parties; nor are foster parents or other persons who might be

interested in, or have the care of, a child. This fact is relevant

both for the procedural position of parents and guardians, as also for

their rights of appeal from decisions of the Juvenile Court.

The effect of the Magistrates' Court (Children and Young

Persons) Rules 1970 (SI 1970/1792) as they applied to the applicant in

the proceedings in the present case was as follows:

1. If he was a parent or guardian he had the

right to be served with a notice specifying inter alia

the grounds for the proceedings;

2. If he was a parent or guardian he was entitled to

"meet any allegation made against him in the course

of the proceedings by calling or giving evidence";

3. If he was a parent or guardian there was

no entitlement at the time to make representations

to the Court (the relevant rule was not yet in force);

4. If he was an "other person", as defined in

Rules, he had the right to be served with a notice

specifying, inter alia, the grounds for the

proceedings, but no entitlement to meet any allegations

by calling or giving evidence, nor to make representations.

5. If the applicant was a parent or guardian, or

an "other person" within the definition of the Rules,

he would not in any circumstances be allowed

to cross examine any witness called by either the

local authority, or the child, as no rule effective

at the time of these proceedings allowed this.

Subject to financial means, the child, as a party to the

proceedings, is entitled to legal aid and to be represented by a

solicitor or counsel. The parents, guardian, foster parent, or "other

person", were not entitled to legal aid at the time of the hearing in

these proceedings before the Juvenile Court.

The legal position of a putative father of an illegitimate

child was summarised by Lord Justice Denning (as he then was) in Re M

(an Infant) (1955) 2QB479 at 488 as follows:

"In my opinion, the word 'parent' in an Act of Parliament

does not include the father of an illegitimate child unless

the context otherwise requires ... The reason is that the

law of England has from time immemorial looked upon a

bastard as the child of nobody, that is to say the child

of no known body except its mother. The father is too

uncertain a figure for the law to take any cognizance of

him, except that it will make him pay for the child's

maintenance, if it can find out who he is. The law recognises

no rights on him in regard to the child: whereas the mother

has several rights ... (the natural father) has no rights

at all, so far as I can see, though no doubt he can apply

for the child to be made a ward of court, just as anyone

else can."

The reference to warding a child in care must now be read

subject to the restrictions on this possibility resulting from the

decision of the House of Lords in A v. Liverpool City Council (supra).

Section 107 (1) of the Children and Young Persons Act 1953

defines "guardian" as a person "in relation to a child or young person

who, in the opinion of the court having cognizance of any case in

relation to the child or young person or in which the child or young

person is concerned, has for the time being the charge

of, or control over, the child or young person". The applicant refers

to the case of TL v. Birmingham City Council (1984) 14 Fam. Law 15,

where a grandmother, who was the de facto guardian of a child for six

years, was found not to be a party to the care proceedings and had no

right to be heard.

In view of this decision, the applicant contends that he would

not have been regarded as a guardian for the purposes of the care

proceedings. Furthermore, he was not a person who, "for the time

being" had the charge or control over the child, since this person was

T's mother, who had exclusive parental rights and duties in accordance

with Section 85 (7) Children's Act 1975. In the present case, T's

mother was living with the child, took him away to the country and had

him in her charge and control prior to the place of safety order and

the subsequent care proceedings. Indeed, in view of the uncertainty

of the legal relationship between the child under a place of safety

order and a body in whose de facto care the child is under such order

(referred to above), the local authority could be considered in this

case to be the person who had "for the time being the charge or

control over the child or young person".

The respondent Government contend, on the authority of R v.

Gravesham Juvenile Court Ex parte B (1982) 4FLR312 that the Juvenile

Court had inherent jurisdiction to allow separate legal representation

for the applicant. That case is authority for the proposition that

the Juvenile Court has power to allow such representation as it

considers proper and necessary in the interests of justice, which

might involve taking full part in the proceedings or only a lesser

part. It expressly held that there was no power to grant legal aid to

pay for legal representation. Hence, unless the parent is able to

afford legal representation, and assuming that the discretionary power

of the Juvenile Court extends to permit putative fathers to

participate in the proceedings to the extent which the justices

consider necessary for the fair conduct of the proceedings, even these

limited and discretionary opportunities for the applicant may be quite

empty.

With regard to the powers of the Juvenile Court in care

proceedings, these did not include the possibility of making an order

in favour of the applicant either giving him custody, care and control

or access in respect of T. Even if the case in respect of the need

for T to be placed in care had not been proved, T would not have

reverted to the custody, care and control of the applicant, but to

that of his mother. In the proceedings which were brought, the

Juvenile Court was concerned, once a need for care was established,

with deciding whether the mother's parental rights should be taken

away under a care order, and given to the local authority, and not

with the applicant's rights as a putative father. The applicant had

no status to appeal from the order of the Juvenile Court, since this

opportunity rests only with the parties.

Wardship

The applicant accepts the summary of the law as set out by the

respondent Government, but points out that, in view of the decision in

A v. Liverpool City Council (1982) AC 363 and in In re W (a minor)

(Wardship Jurisdiction) (1985) 2WLR 892, the High Court will only

exercise its jurisdiction in wardship in very limited circumstances,

such as where the authority has acted ultra vires or with impropriety,

or where the local authority's own statutory powers are deficient. It

will not exercise its jurisdiction where there is a lack of statutory

power in a putative father, or member of the child's wider family, to

apply to a court for relief, a fortiori where that relief would

interfere with a statutory parental right of the local authority.

Hence, in re W (supra), an aunt, uncle and grandparent were

unable to persuade the court to exercise its jurisdiction in wardship

in relation to a child in care under the 1969 Act. Further, in W v.

Nottinghamshire County Council, the Times, 16 November 1985, it was

held that, where there were statutory powers and duties available to

deal with a problem arising in the care of the child in the care of a

local authority, an attempt to pursue an alternative remedy by way of

wardship would not be permitted.

Hence, only where the local authority itself chooses to

institute wardship proceedings, or abandons any objection to the

exercise by the High Court of its wardship jurisdiction, is the Court

likely to continue the wardship and actually make orders in respect of

the child which is a ward of court.

Guardianship

The submissions of the respondent Government as to the law are

accepted subject to pointing out that where an originating summons in

wardship is issued under the Supreme Court Act 1981, it is invariably

also issued under the 1971 Act and the Guardianship of Minors Act 1973

("the 1973 Act"), and that the High Court, on hearing the matter, is

hearing it both under its wardship jurisdiction and under the

statutory jurisdiction contained in the 1971 Act and the 1973 Act.

Three courts have jurisdiction under these acts, namely the

Magistrates' Court, the County Court and the High Court. The choice

of court is that of the person issuing the proceedings.

The respondent Government make no reference to the case of re

K (an infant) 1972 3 All ER 769, where the Divisional Court of the

Family Division held as follows:

"While H, as putative father, had a right under Sections

9 (1) and 14 (1) of the 1971 Act to make an application

to the justices for an order granting access, the fact

that at the material time the local authority had

already assumed the parental rights by virtue of an

order under Section 2 (i) (b) of the Children's Act 1948,

left the justices no alternative but to decline the

application and leave the discretion with regard to access

to the local authority".

In H v. H (child in care) (court's jurisdiction) 1973 Fam. 63

a mother sought a direction from the court that her child, who had

been committed to the care of the local authority, should live with

certain foster parents. The court held that, although there was

statutory jurisdiction, this jurisdiction would not be exercised where

a local authority was properly exercising its statutory duty, and the

court would not substitute its own discretion for that of the local

authority. Similar conclusions were reached in Ellard v. Ellard and

Cheshire County Council (unreported Supreme Court transcript 11

October 1978 and in re H (supra) on appeal before the Court of Appeal

1978 Fam. 65).

Section 9 of the 1971 Act is intended to apportion parental

rights between parents. Neither this Section, nor Section 14, which

applies to illegitimate children, is intended to enforce a right which

lies in the discretion of a local authority with a care order. By

analogy, in Section 8 (7) in the Domestic Proceedings in the

Magistrates' Court Act 1978, there is an express provision against a

court ordering access in a dispute between parents where the child is

in the care of a local authority, and it is only under Sections 12 (A)

- (F) in the Child Care Act 1980 that a parent or guardian can obtain

an order for access where a local authority has denied access

altogether. These provisions do not extend to putative fathers, and

were not brought into force until after the proceedings in the

Juvenile Court in the present case had been concluded.

Admissibility and merits

Article 6

The applicant contends that matters concerning custody and

access are civil rights within the meaning of Article 6, and that the

applicant is therefore entitled to access to court for the

determination of these civil rights. He further contends that these

rights are not lost upon the making of a place of safety order, an

interim care order, or a care order.

Although the applicant accepts that, as between him and T's

mother, if circumstances warranted it, he could have applied in

respect of custody and/or access under Section 9 of the 1971 Act this

right is nugatory following the intervention of the local authority,

which either contemplates, or issues, care proceedings or obtains a

care order. The applicant had the right to apply under the Wardship

and Guardianship jurisdiction, which he attempted to do by virtue of

his originating summons issued on 8 August 1983. This summons was

issued having consulted solicitors as soon as the position was clear

to the applicant. In view of the law set out above, no court will

intervene to review the decisions of local authorities, save in very

limited circumstances, irrelevant for the present case, unless the

local authority concerned abandons an objection to the High Court

exercising its jurisdiction. This the local authority only did on 24

November 1983, in the present case, over six months after T was first

taken by the local authority under a Place of Safety Order.

Between 10 June and 9 August 1983 the court exercising

jurisdiction in relation to T was a Juvenile Court which is

the most important forum for handling most cases concerning the

statutory code governing care proceedings. In this period, therefore,

the applicant had to seek to enforce his custody and access rights

through the Juvenile Court, but this he could not do.

Not only is he as a putative father not a party to the care

proceedings, but neither is the mother or the father of a legitimate

child. Further, even if the applicant brought himself within the

definition of the "guardian" or "other person" (as referred to above),

the role he is allowed to play and the participation in the

proceedings which he is entitled to take are so circumscribed, limited

and discretionary that they do not entitle him to a fair hearing as

required by Article 6.

The applicant was not entitled to be notified of the Place of

Safety Order being sought, had no right to be heard in respect of it

and has no appeal against the making of it. He was not served with a

notice specifying the grounds for the proceedings and, although the

care proceedings are capable of affecting fundamentally his rights in

respect of custody and access to his child, the most he could hope to

achieve by way of a role in those proceedings was one which arises out

of his being classified as a "guardian" under the relevant

legislation. If he could have obtained such a status, which is not

accepted, he would only be entitled to meet any allegations made

against him by calling or giving evidence. He would have had no right

to make representations to the court, nor to cross-examine witnesses,

nor to have legal aid to pay for legal representation. Even were he

to be allowed to cross-examine witnesses, the absence of legal aid

would prevent him from having the services of a lawyer, unless he were

able to pay privately, which he was not. Nor could he make

submissions to the court as to the kind of order which it should make.

By contrast, the local authority are party to the proceedings,

are legally represented, can call evidence, cross-examine witnesses,

and make representations to the court. It is submitted that there is

a great inequality between the entitlements and resources of the local

authority and the applicant which does not meet the criteria of a fair

and public hearing as required by Article 6.

Furthermore, the Juvenile Court could not make any order, even

had it wished to do so, which would ensure that T was placed either in

the custody, care and control of the applicant, or which would give the

applicant access. If the court had declined to make any of the orders

which it had power to make, by virtue of his status as a putative

father, the applicant would not have been entitled to the custody,

care and control of the child, which would have stayed with the

mother. A putative father only has such rights to custody or access

as are granted to him by a court under Section 9 of the 1971

Act; the Juvenile Court does not have jurisdiction under the 1971 Act

or the 1973 Act.

Once a care order was made, parental rights and duties vested

in the local authority and any rights to care and control or access to

the child were determined by it and, save only for the limited

review available by way of judicial review, there was no independent

tribunal to which the applicant could apply for the determination of

any rights which he might have to custody, care, control or access.

Even had the applicant issued proceedings under the 1971 Act

in the Magistrates' Court, those proceedings would not have come

before a Juvenile Court, but before the domestic court, and would not

have prevented the Juvenile Court in this case from hearing the care

proceedings. The Juvenile Court in this case was on notice of the

wardship proceedings issued on 8 August 1983, but the Court declined

to adjourn its hearing on 9 August 1983. Furthermore, even if the

applicant had obtained an order under Section 9 of the 1971 Act giving

him legal custody prior to the hearing of the Juvenile Court on 9

August 1983, his entitlement to participate in those proceedings would

still have been restricted, and he would still not have been a party

to them, nor entitled to legal aid.

The applicant contends that he took all steps open to him in

the various proceedings to further his rights. He does not accept

that he was "a guardian" for the purposes of the proceedings before

the Juvenile Court, and it is significant that the local authority did

not so regard him, and did not serve him with notice of the

proceedings, as they would have been obliged to do under the relevant

Rules, if he was a guardian. The respondent Government's contention,

that the applicant would be regarded by a court as the principal carer

for T at the time when the Place of Safety Order was obtained in

respect of the child, fails to take account of the fact that the child

was in both the legal and actual custody of his mother from the end of

May 1983 to 10 June 1983, and that her custodial rights continued

until, at the earliest, 16 June 1983, when the interim Care Order was

made, or, at the latest, the making of the Care Order on 9 August

1983. Further, there was no justifiable reasons for the applicant to

have applied for legal custody under Section 9 of the 1971 Act, before

the end of May 1983 while still living with H and T. This course

suggested by the respondent Government is both ill-founded and

unreasonable, and would have been likely to have caused more problems

in the family which would have been likely in turn to have affected

the child.

Nor is it accepted that the applicant did not pursue his

remedies with the necessary vigour, as contended by the Government.

Having learned of the situation in consulting solicitors, who applied

for legal aid to commence proceedings in the High Court, the

applicant's proceedings were commenced as soon as possible. Legal aid

was granted on 3 August 1983, and the originating summons issued on

8 August 1983. The applicant's notice of appointment to hear the

summons was issued on the same day, returnable on 1 September 1983, a

date appointed by the court. On that date the local authority

contested the jurisdiction of the court, but was ordered to file an

affidavit within twenty-one days of H filing her affidavit. Despite

many requests, both oral and in writing, by the applicant's solicitors

and despite the fact that it became apparent that the mother would not

be filing evidence in accordance with the Order of 1 September 1983 in

view of her mental condition, the local authority delayed until 29

November 1983 before filing an affidavit.

The hearing date of 19 January 1984 was obtained on

12 September 1983, as the first available court date. The hearing on

19 January 1984 was adjourned for the reasons set out above, in view

of the unexpected proposal by the local authority that T should be

adopted. However, when it appeared that no adjourned hearing date

would be available until May 1984, the applicant applied ex parte

on 10 February 1984, seeking expedition. The application was

dismissed as there was no court available prior to May 1984.

Nevertheless, under Order 90 Rule 3 of the Supreme Court Rules

and the practice direction of 16 July 1982, the initiative for

obtaining an expedited hearing should be taken by the Registrar of the

court.

In all the circumstances, it is submitted that the applicant

did all that was possible for him to do to obtain a hearing within a

reasonable time, but that the period which elapsed from 8 August 1983

to the commencement of the hearing on 1 May 1984 was not reasonable in

all the circumstances.

Article 8

The applicant contends that no respect was shown for his

family life, and that this interference with his rights under Article 8

was unjustified under Article 8 para. 2.

The applicant refers in this respect to the following matters

in particular:

i. The local authority having obtained a Place of

Safety Order, failed properly to investigate and

consider the applicant and his family as a suitable

place for the child, despite the fact that the

only home T had known until June 1983 had been

with the applicant; a report was ultimately

requested from Miss W, which was prepared on

31 August 1983. During this period, the local

authority did not visit, or request a visit to,

the applicant at his home in London, or

his parents, who, on the evidence, had clearly

played an important role in T's early life.

ii. The failure of the local authority properly

to inform, consult and allow participation by

the applicant in its decisions as to the

placement of T with foster parents, access

for the applicant and his parents, and

the decision on the adoption of T.

iii. The applicant's inability in law as set out

above effectively to challenge the decisions

of the local authority before an independent

tribunal and effectively and adequately to

participate in the care proceedings, which were

the legal process for the transference of the

parental rights over T to the local authority.

iv. The decision reached by the local authority,

without consultation prior to 5 September 1983,

to place the child with long-term foster parents,

before the High Court had the opportunity

to consider the merits of the applicant's case.

v. The denial of all access for the applicant to

the child between 10 June 1983 and 21 August 1983

when the applicant was allowed to see T for one

hour at the local authority's offices.

Thereafter, between 21 August 1983 and

24 November 1983 the local authority restricted

access to one hour per month.

vi. The lapse of time from 8 August 1983 until

1 May 1984 for the hearing of the applicant's

case to commence. This delay was largely caused

by the local authority's failure properly to inform

the applicant and the court that it wished

eventually for there to be an adoption order in

respect of T.

The applicant submits that there is no justification for the

above matters. The existence of the applicant's right to apply in

wardship and under the 1971 Act and 1973 Act until 24 November 1983

was thwarted by the refusal of the local authority to abandon its

objection to the exercise of jurisdiction by the court. This

unjustifiably delayed the applicant's case and did not provide a

remedy speedily enough for the applicant to ensure respect for his

family life. Nor were the measures referred to above justified on the

grounds of the protection of the health or morals of the child, or his

welfare. The denial, and subsequent restriction, of access to the

applicant was a fundamental interference with his family life and was

neither desirable nor in the child's best interests. This is

illustrated by the Order of 24 November 1983, the Order of the Court

on 20 June 1984 in respect of access to the applicant, and its

confirmation by the Court of Appeal in September 1984.

The respondent Government's attempts to justify the denial and

restriction of access are unfounded. It is unreasonable to suggest

that the applicant should have taken guardianship proceedings before

H went to the country at the end of May 1983. The evidence before the

court was that, although the mother had problems prior to May 1983,

family life, on the whole, was happy. The applicant submits that it is

wrong that a person should have to take steps in anticipation of a

breach of the Convention, and that the law itself should safeguard

against such breaches.

The lack of justification for preventing access during this

period is illustrated by the ultimate decisions of the High Court and

Court of Appeal to permit access. It is not accepted that any earlier

access would have interfered with the plan of rehabilitation between T

and his mother adopted by the local authority between June and

September 1983. The local authority in fact abandoned its decision

to attempt rehabilitation with the mother prior to that date, and

allowed the applicant access to T in August 1983.

Nor, in the circumstances of the present case, can the fact

that the local authority observed the mother's wish that the applicant

should not have access to T, provide sufficient justification under

Article 8 para. 2. The local authority obtained an interim Care Order

in respect of T on 16 June 1983. The applicant asked the local

authority's representative to see his son subsequent to that date and

was refused on the basis that this was not the wish of the mother.

However, parental rights and duties in respect of T vested in the

local authority at that time, and it was their duty to promote and

safeguard the welfare of the child in his best interests. It was not

sufficient for the local authority to rely on the opinion of the

mother, whose parental rights it had assumed under the interim Care

Order. Part of T's entitlement to respect for his own family life was

to see his father, the applicant, and there was no reason why the

rights of all three members of the family could not have been

protected, rather than the policy adopted by the local authority, of

giving precedence to the rights of the mother.

This problem was recognised by the Court of Appeal in its

judgment at page 5, where the Court held:

"Had the case been differently handled in the early

days, it seems to me that it is possible that the

child would have been restored to his father soon

after the [local authority] realised that

the mother was not fit to look after the boy and

was going to remain unfit for a substantial period

of time. But it did not happen. The result is

that the father who, on the material before us,

appears to be burning with general resentment of

what he regards as a grave injustice, not only

to himself but to his son, which is more

important - because, as a result of what he

regards as this mishandling of the case by the

[local authority] he lost the opportunity of

recovering the little boy whom he had been

looking after during the first eleven months

of his life to a most remarkable degree of

success."

Subsequently the Court held at page 12:

"It is important that any court that has to consider

any aspects of this case in the future should

appreciate that the pattern of events can be explained

as a consequence of the view earlier formed by

[the local authority] that sooner or later this

little boy had got to be adopted. The idea that

because the father never married the mother he is

not eligible to look after his son cannot, of course,

be supported. The important thing is that the history

of access and the initial cutting off of the father

from his son was based on an appreciation of the

facts which may now be regarded as less than

completely comprehensive."

It is accepted that, once the local authority had abandoned its

objection to the wardship jurisdiction on 24 November 1983, the

applicant was able to challenge its decisions on access, albeit that

the remedy was too slow to be effective. However, the local authority

is given the initiative in wardship proceedings, where the child is in

its care, since it can refuse jurisdiction and, subject to the

opportunity for judicial review, will succeed in so doing.

The applicant further contends that the measure of discretion

given to domestic courts in their decisions, recognised in

Application No. 10148/82, Garcia v. Switzerland, Dec. 4.3.85 (not yet

published) is not applicable in the present case, where the applicant

complains that the decisions made by the local authority, and his

inability to challenge them up to 24 November 1983, were followed by a

time delay which resulted in a breach of Article 8 of the Convention.

Hence it is contended that the applicant's right to respect

for his family life was unjustifiably interfered with by the premature

decision of the local authority in respect of T, which failed to take

account of the applicant's involvement with the child, or involve him

in any way in the decision-making process.

Article 13

The applicant submits that he had no effective remedy in

relation to the Place of Safety Order, the interim Care Order and the

Care Order, and that the law in relation to wardship and guardianship

proceedings was not an effective remedy until 24 November 1983, when

the local authority withdrew its objections to the exercise of

jurisdiction. The remedy available thereafter had its effect

drastically reduced because of the time taken before the matter could be

heard, and the time which had already elapsed, factors made more

important by the age of the child.

The proceedings in the Juvenile Court did not prevent the

wardship court from considering the applicant's originating summons,

but the existence of the interim Care Order and the Care Order

prevented the wardship court from considering the case on its merits

in the light of the objections made, until 24 November 1983.

Furthermore, the Juvenile Court declined to adjourn its hearing on

9 August 1983 in the light of the wardship and guardianship proceedings

which the applicant had issued.

As to the remainder, the applicant relies on his submissions

made in his original application.

Article 14

The applicant relies on the submissions made in his original

application.

THE LAW

1. The applicant complains first that, when T was taken into the

care of the local authority, he was first denied access to him and

thereafter granted only limited access to him. He submits that he was

unable to participate adequately in the care proceedings before the

Juvenile Court and was not consulted by the local authority in the

decision-making process concerning T's future. He also complains that

he had no effective and timely remedies against these matters. In

respect of these complaints the applicant first invokes Article 8

(Art. 8) of the Convention which provides:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The applicant contends that the matters about which he

complains show that the local authority failed to respect his family

life with T. He argues that there was no justification for this under

Article 8 para. 2 (Art. 8-2) of the Convention. He also contends that

he was discriminated against contrary to Article 14 (Art. 14) of the

Convention either on the grounds of his sex, or on the grounds of his

unmarried status, or on both grounds. Article 14 (Art. 14) of the

Convention provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

The respondent Government have contended that the measures

taken by the local authority were dictated by the need to further T's

best interests. Without contending that the applicant has failed to

comply with Article 26 (Art. 26) of the Convention, they submit that

it would have been open to him to have formalised his relations with T

by taking guardianship proceedings. Had the applicant been successful

in such proceedings, he would have been granted custody of T, if that

had been in the child's best interests. The care proceedings might

not then have arisen.

The respondent Government also contend that the decisions of the

local authority to refuse, and later restrict, access to T were taken in

the child's best interests, since the child needed stability and,

initially, the local authority was seeking to rehabilitate the child

with H. Any interference with the applicant's right to respect for

his family life with T was therefore justified under Article 8 para. 2

(Art. 8-2) of the Convention as in accordance with the law and

necessary in a democratic society for the protection of T's health.

Furthermore, they submit that any difference in treatment of

the applicant as an unmarried father as compared with H, or a married

father, has a reasonable and objective justification in the interests

of legal certainty. They therefore deny that the applicant was

discriminated against.

The question of the existence or non-existence of "family

life" is essentially a question of fact depending upon the real

existence in practice of close personal ties and, according to the

established case law of the Commission and the Court, "respect" for

family life in this sense implies:

"An obligation for the State to act in a manner calculated

to allow these ties to develop normally" (Eur. Court H.R.,

Marckx judgment of 13 June 1979, Series A no. 31, p. 21,

para. 45).

This obligation is not limited to compelling a state to

abstain from interference with family life, but, as the Court

recognised in the same judgment (para. 31), this provision may require

the existence in domestic law of legal safeguards that render family

life possible. The primacy of a natural parent's relationship with

his or her child as family life is clearly implicit in the terms of

Articles 8 and 12 (Art. 8, 12) of the Convention and Article 2 First

Protocol (P1-2), but the Commission has equally recognised that in

proceedings relating to the welfare of children, the interests of the

children themselves may override those of their natural parents. Such

a possibility is recognised by Article 8 para. 2 (Art. 8-2) of the

Convention, and an interference with family life, and with the primacy

of a natural parent's relationship with his or her child, may be

justifiable under Article 8 para. 2 (Art. 8-2) in the interests of the

child's health.

In the present case the applicant is the unmarried father of

T. However, the respondent Government do not contest, and the

Commission finds it established, that family life protected by Article

8 (Art. 8) of the Convention existed between the applicant and T prior

to the child being taken into the care of the local authority.

In these circumstances the Commission finds the question

whether the local authority failed to show respect to the applicant's

family life with T, and whether any interference therewith, arising

from the limitation of access and of the applicant's involvement in

the decision-making process concerning T's future, was justified under

Article 8 para. 2 (Art. 8-2) of the Convention raises difficult issues

of fact and law, which are of such complexity that their determination

should depend upon a full examination of the merits.

It follows that this part of the application is not manifestly

ill-founded and must be declared admissible, no other ground for

declaring it inadmissible having been established.

2. The applicant further complains that he was denied an

"effective remedy" within the meaning of Article 13 (Art. 13) of the

Convention, and a "fair hearing within a reasonable time before an

independent and impartial tribunal" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention in relation to his

dissatisfaction with the decisions of the local authority concerning

his access to T and the child's future.

The respondent Government contend that adequate remedies were

available to the applicant to attempt to vindicate his claims, in

conformity with Articles 6 and 13 (Art. 6, 13) of the Convention.

They refer, in particular, to the availability of guardianship

proceedings both before and after the Care Order was made, the

opportunity for the applicant to participate in the care proceedings

themselves and to the wardship proceedings. They submit that the

length of the proceedings did not exceed a reasonable time and that

the applicant failed to take all available steps to accelerate them.

According to the established case-law of the Commission

interpreting Article 13 (Art. 13), an applicant who claims that his rights

guaranteed by the Convention have been violated, must have an

effective remedy before a national authority for that claim. The word

"remedy" in this sense does not mean that the applicant's claim must

be vindicated and that the applicant must "win". He must have an

opportunity for his claim to be examined by a national authority

conforming to the requirements of Article 13 (Art. 13), which is able

to examine the merits of his complaint. The Convention provides a

fuller procedural guarantee in respect of certain claims (e.g. civil

rights); the Commission has recognised that the procedural guarantees

of Article 6 para. 1 (Art. 6-1) take precedence over those of Article

13 (Art. 13) where a "civil right" is at issue, because the guarantees

of this Article are more rigorous than those of Article 13 (Art. 13).

The Commission notes that certain remedies were available to

the applicant and he made use of some of them. However, there was

no specific remedy available to him, either on a judicial or an

administrative level, for the sole question of his access to T, until

the local authority withdrew its objection to the wardship

proceedings; those proceedings were thereby delayed until 24 November

1983. Furthermore, under English law, the applicant's legal

relationship with T was determined by the fact that he is the child's

unmarried father. As a result, he did not formally enjoy parental

rights in respect of T even before the child came into the care of the

local authority. Nevertheless, the Commission has found that family

life protected by Article 8 (Art. 8) of the Convention existed between the

applicant and T prior to the events of June 1983. In addition, the

effect of the Care Order which was ultimately granted to the local

authority was not to prohibit the applicant's access to T, as is shown

by the fact that the local authority allowed such access from

21 August 1983 onwards.

The Commission considers that in these circumstances it cannot

decide whether the question of the applicant's access to T involved

the "determination of civil rights" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention and, if so, whether the

requirements of that Article were satisfied by the proceedings in

question, without a full examination of the law and facts of the case.

In addition, the question whether the applicant had an "effective

remedy" for the interference which he alleges with his right to

respect for his family life, as required by Article 13 (Art. 13) of

the Convention, also raises difficult questions of fact and law which

can only be resolved by an examination of the merits.

It follows that this part of the application cannot be

declared manifestly ill-founded and is therefore admissible, no other

ground for inadmissibility having been established.

For these reasons, the Commission, without any way prejudging

the merits

DECLARES THE APPLICATION ADMISSIBLE

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J. A. FROWEIN)

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K. v. THE UNITED KINGDOM

K. v. THE UNITED KINGDOM