Lexploria

Application No. 23387/94

by John CLARK

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 5 December 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 September 1993

by John Clark against the United Kingdom and registered on

4 February 1994 under file No. 23387/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1952 and resident in

Glasgow. He is represented before the Commission by Mr. John Arwel Huw

Jones, a solicitor practising in Hereford. The facts as submitted by

the applicant may be summarised as follows.

The applicant was married to D. on 10 November 1984. He had

cohabited with D. prior to the marriage and a son N. had been born on

22 May 1984 before the marriage. A second child A. was born on

7 May 1985.

On 8 March 1987, D. left the matrimonial home leaving the

children with the applicant. Decree nisi of divorce was granted on

23 March 1987. On 23 April 1987, D. obtained orders of ouster and non-

molestation requiring the applicant to vacate the matrimonial home and

to refrain from molesting or otherwise interfering with her. Custody

of the children was granted to D. with reasonable access to the

applicant.

The applicant attended access visits regularly. He applied for

custody of the children on 19 October 1987.

From November 1987, the children were placed in the care of the

local authority at D.'s request.

On 2 March 1989, the applicant's application for custody was

heard before the County Court at the same time as an application by the

local authority for a care order. The judge commented favourably on the

applicant's commitment to his children and his ability to take care of

them. However he accepted the view of the local authority that there

was an unacceptable risk of further emotional damage to the children

if returned to the applicant. He made a care order in favour of the

local authority but commented that rehabilitation with the father did

not appear to have been explored and that the local authority should

not assume that an application for freeing for adoption would be a mere

formality.

On 13 March 1989, a meeting was held by the local authority which

identified three options: rehabilitation with the applicant,

application for freeing for adoption or a long term foster placement

with regular defined access to the applicant. However, in a subsequent

meeting in November 1989, the possibility of rehabilitation with the

applicant was no longer considered. The three options were presented

as being long term fostering with access by the applicant, closed

adoption or open adoption with access by the applicant.

In a letter dated 3 November 1989, the local authority explained

to the applicant that there were 2 options ie. long term foster care

with a view to adoption or an application to free for adoption. Access

was not mentioned. At a subsequent meeting, the applicant informed the

local authority that he wished to pursue plans to have the children

returned to his care.

At a meeting on 6 December 1989, the local authority decided

rehabilitation with the applicant was not possible and that an

application should be made to free the children for adoption. It was

decided to reduce the applicant's access from once per week to one

afternoon per month. The applicant was not informed that the meeting

was to take place or that access would be discussed.

By a letter dated 12 December 1989 the local authority informed

the applicant that access was to be reduced because of the decision

against rehabilitating the children with him.

On 5 March 1990, the Adoption Panel recommended that applications

be made to free the children for adoption. The applicant was not

informed or consulted or given the opportunity to make representations

prior to this decision.

On 10 April 1990, the applicant received a letter from the local

authority informing him that the children were being introduced to

prospective adopters and that his final access would take place on

27 April 1990.

On 20 April 1990, the children were placed with their prospective

adopters Mr. and Mrs. X..

On 2 May 1990, the local authority issued freeing applications

in the County Court with the request that the applicant's consent be

dispensed with on the ground that it was being withheld unreasonably.

In her report dated 20 September 1990, the guardian ad litem

expressed the view that an open adoption with access to the applicant

would in principle meet the needs of the children and concluded with

regret that such an arrangement would threaten the existing placement

with Mr. and Mrs. X. While Mrs. X might be able to tolerate access if

ordered, Mr. X could not.

On 18 January 1991, the County Court judge made an order freeing

the children for adoption and dispensing with the applicant's consent.

In his judgment, the judge expressed his view that the actions of the

local authority were "to say the least regrettable" in that they

proceeded with complete disregard to the expressed view of the court

with regard to dispensing with consent. He saw no justification in the

action of the local authority reducing the applicant's access while the

children remained with their foster parents. He noted also that the

local authority had breached their code of practice in not consulting

with the applicant before taking the decision to terminate access

completely. He found however that the security of the children rendered

adoption desirable, having regard to the history and emotional upset

to the children in the past. He commented that had the application been

heard promptly, he would have refused to dispense with the father's

consent considering that the access which had continued for so long,

with such regularity was in the children's interests.

Since however the judge was satisfied that the placement would

break down with disastrous results for the children if there was access

(as Mr. X was totally opposed to such a possibility) and since another

move of the children was unacceptable, he was driven to the conclusion

that orders should be made dispensing with the applicant's consent.

The applicant appealed this decision by notice dated

31 January 1991 on the ground, inter alia, that the evidence of the

prospective adopters had not been heard in court.

On 12 July 1991, the Court of Appeal upheld the appeal on the

ground that where the attitude of the prospective adopters to access

was crucial to the decision the judge could not determine properly the

best interests of the children without them being heard before the

court. It noted also the failure of the local authority to fulfil its

duty under the applicable regulations to explain to the father the

legal implications of and procedures concerning the freeing for

adoption of the children and to provide him with written information

about those matters which might have been material to the applicant's

failure to apply promptly to reinstate access. It criticised the local

authority's handling of the case as "inept and insensitive".

On 29 October 1991, the High Court heard the applicant's

application for reinstatement of contact. In his judgment of

30 October 1991, the judge found that the applicant had not entirely

given up his desire of having the children returned to him and he was

satisfied, as found by the guardian ad litem, that access risked

disrupting the children's security in their adoptive home to an

unacceptable extent. He commented that the previous access had been

beneficial to the children and that one had to reflect with some

sadness on the guardian's view that a consequence of the decisions

wrongly taken in 1990 had been to sacrifice the advantage to the

children of their contact with their father in favour of the perceived

advantage of a permanent placement with this particular family.

In August 1992, Mr. and Mrs. X. commenced adoption proceedings

in respect of the children and on 17 March 1993, after another

contested hearing, the County Court granted adoption orders in respect

of both children with no condition as to contact.

COMPLAINTS

The applicant invoked Article 8 of the Convention. He submitted,

inter alia, that the local authority failed to respect his family life

by, inter alia, failing to consult him or offer him the opportunity to

make representations before making decisions relating to his

relationship to his children; failing to comply with the relevant

regulations and wrongly reaching decisions concerning access and

freeing for adoption. In particular he submitted that the local

authority should not have placed the children with adoptive parents

who were opposed to access in circumstances where the passage of time

would make it probable that the court would be obliged in the

children's interests to refuse access and allow the adoption to

proceed.

The applicant also invoked Article 6 para. 1 of the Convention.

He complained of the fairness of the proceedings and of the delays

which occurred, which resulted in orders being made freeing for

adoption and refusing access which might otherwise not have been made.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 November 1993 and registered

on 4 February 1994.

On 31 August 1994, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

By letter dated 10 March 1995, the Government informed the

Commission that it proposed settling the case on the basis of payment

of a sum of ex gratia compensation and legal costs. Following

negotiation between the parties, the applicant informed the Commission

by letter dated 14 November 1995 that he had accepted the Government's

offer of £7 000 pus legal costs.

REASONS FOR THE DECISION

The Commission notes that the applicant has accepted the

Government's offer to settle the case and accordingly that he wishes

to withdraw his application.

In these circumstances, the Commission finds that the applicant

does not intend to pursue his application before the Commission since

the matter has been resolved. The Commission further considers that

respect for Human Rights as defined in the Convention does not require

it to continue the examination of the application.

It follows that the application may be struck off the list of

cases pursuant to article 30 para. 1 of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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CLARK v. THE UNITED KINGDOM

CLARK v. THE UNITED KINGDOM

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