AS TO THE ADMISSIBILITY OF

                      Application No. 25054/94

                      by E.D.

                      against Ireland

     The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 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

                 G.B. REFFI

                 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 1 March 1994 by

E.D. against Ireland and registered on 1 September 1995 under file

No. 25054/94;

     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 facts as submitted by the applicant may be summarised as

follows.

     The applicant is an Irish citizen, born in 1952 and has a contact

address in Cork, Ireland. He is represented before the Commission by

Niall Browne, a solicitor practising in Dublin.

     The applicant is the father of two children, E and P, born on

11 August 1985 and 1 April 1987, respectively. He and the mother of the

children are not married and do not live together but continue to be

on good terms. Both are members of the travelling community.

     On 6 October 1985 the mother took E from hospital in Dublin

despite warnings as to E's frail health and the need for special

feeding. On 7 October 1985 the mother was located with E on a street

begging and homeless. E was reported as cold, hungry and bleeding. The

mother refused to go to a mother and baby home but was willing to allow

E to be admitted to hospital. On 8 October 1985 the Southern Health

Board obtained a place of safety order in relation to E.

     On 4 November 1985 the District Court adjourned a hearing, in

relation to a care order in respect of E, because the father had

attended the court intoxicated. On 5 November 1985 the District Court

committed E to the care of the Southern Health Board under section 58

of the Childrens Act 1908. The applicant attended the hearing but was

not represented. The mother did not attend any of these hearings. On

30 October 1985 E was placed in long term foster care with a married

couple living in Cork who were not travellers.

     In the period which followed neither the applicant nor the mother

were in a position to seek the return of E and were content that E

remain in foster care.

     On 15 July 1987 P was committed to the care of the Eastern Health

Board by order of the District Court under section 58 of the 1908 Act.

P was also then placed in long term foster care with a married couple

living in Dublin.

     In or around 1991 the foster parents of E applied to the Adoption

Board for an order for the adoption of E. The Adoption Board decided

that, if the High Court made an order under section 3(1) of the

Adoption Act 1988 ("the 1988 Act"), the Adoption Board would make the

necessary adoption order. On 15 September 1992 the Southern Health

Board therefore applied to the High Court for an order under

section 3(1) of the 1988 Act which would authorise the Adoption Board

to make an order for the adoption of E by his foster parents.

     A social work report (which was completed in 1989 by the social

worker dealing with this matter on behalf of the Southern Health Board

and submitted to the High Court) chronicled the mother's ongoing

alcohol problems and her involvement in prostitution from a young age.

She was often homeless and she had a chronic glue sniffing problem. The

applicant was also described as being violent and disturbed with a

severe drinking problem. Both the applicant and the mother were

reported as being in prison in September 1988. The same social worker

recorded in a letter to the Adoption board dated June 1992 (which

letter was also submitted to the High Court) that the natural parents

had asked for a meeting between them and E on three occasions. The

natural parents failed to attend two of these visits and the applicant

was intoxicated during the other visit. That social worker reported

that the applicant and the mother were intoxicated and incoherent

during most of his meetings with them. It was also recorded in the

latter social work report that photographs of the children had been

sent to the applicant and the mother, that E and P had met on two

occasions in 1991 and 1992 and that the respective foster parents had

agreed to arrange about three meetings each year between E and P.

     The case was heard by the High Court in July and October 1993.

The applicant and the mother were represented at the hearing by a

solicitor and two barristers and their legal costs were paid by the

Southern Health Board, pursuant to an order of the High Court of

5 February 1993.

     Oral evidence was given to the High Court by the applicant, the

mother, social workers and a doctor as to, inter alia, the applicant's

and the mother's past and current personal circumstances. The applicant

had spent the greater part of the previous nine years (namely, the

duration of his children's lives) in and out of charitable institutions

for the homeless and had a chronic drinking problem (though he had

joined Alcoholics Anonymous prior to the hearing). The mother had been

admitted many times to an adult psychiatric institution and to another

hospital, the latter relating specifically to her ongoing solvent

addiction. She was, at the time of the hearing, serving another prison

sentence. Evidence was also given as to the public support services

made available to the applicant and the mother in relation to their

problems over the past years.

     The applicant and the mother objected to the proposed adoption

on the grounds that family rights would cease permanently and E's name

would be changed. E would lose his traveller identity, his right of

access to his traveller heritage and contact with his brother. In

addition, they would lose their right to educate their child in

traveller culture, history and identity.

     The decision of the court, allowing the application of the

Adoption Board, was delivered on 5 November 1993. Mr. Justice

Geoghegan, in delivering the judgment of the court, held as follows:

     "The application is opposed by the natural parents on the grounds

     that the adoptive parents are from the settled community, whereas

     they the natural parents are from the travelling community. It

     is submitted that the proposed adoption would damage the child

     by depriving him of his true culture. Essentially there is no

     other objection taken to the adoption.

     Most importantly both natural parents acknowledge that neither

     of them is capable within the foreseeable future of rearing the

     child. Both suffer from severe alcoholism problems and in the

     case of the natural mother, there is a further problem of solvent

     abuse. The mother is currently serving a prison sentence. Each

     parent however, when giving evidence in court has expressed the

     hope that the child at an older age might be able to live with

     them or either of them and enter fully into his cultural

     heritage, being that of the travelling community.

     Both natural parents are happy, that in the meantime the child

     should remain with the foster parents but they do not want an

     adoption. I am satisfied on the evidence which I have heard that

     an application under section 3(1) of the 1988 Act has been

     properly made by the Health Board. Before I can accede to it, I

     must be satisfied as to the fulfilment of the requirements set

     out in . In considering that issue I must follow

     the guidelines of the Supreme Court .... In particular, I must

     note and follow the view of the Supreme Court that "no mere

     inadequacy of standard in the discharge of the parental duty

     would in the opinion of the court suffice to establish" the proof

     of failure in parental duty and that "the failure must arise for

     physical or moral reasons" and not, for instance, economic

     circumstances.

     I am absolutely satisfied that all the requirements of the Act

     ... are in fact fulfilled and I am equally satisfied that it is

     in the best interests of the child that I make the Order sought.

     I would like, however, to put on record the favourable impression

     that I formed of both natural parents despite the addictions and

     other problems afflicting them. The Court could not but be

     impressed by evidence as to the likeable nature of

     the mother ... . But unfortunately she is hopelessly and

     irretrievably addicted for the foreseeable future.

     By the same token it was quite obvious that the father was an

     intelligent and sensitive person, though for all intents and

     purposes an incurable alcoholic. I entirely accept the

     genuineness of his concern that the child should lose his culture

     and I am satisfied that the father has made a study of the

     language, folklore and culture of the travelling people. ...

     I now turn to the adoptive parents. They are eminently suitable

     to act as parents, ... I am satisfied that they have given love

     and affection to the child while in their fosterage. There will

     be no damage to the child whatsoever if an adoption order is

     made. On the contrary any residual insecurity in the child by

     reason of any fear that he might be removed from the foster

     parents would be gone and the only parents which he knows will

     become his permanent parents."

     The Adoption Board subsequently made an adoption order in favour

of E's foster parents.

COMPLAINTS

1.   The applicant complains under Article 8 of the Convention:

     (a) mainly about the order of the High Court under the Adoption

     Act 1988 which led to the non-consensual adoption of E by a non-

     traveller family. He submits that that Act should have provided

     a secure long term fostering option as an alternative to

     adoption;

     (b) that the efforts of the relevant Health Boards to reintegrate

     the family were inadequate; and

     (c) in relation to the fostering arrangements in respect of E and

     P;

2.   The applicant also complains:

     - under Article 10 of the Convention that the adoption violated

     his right to impart information and ideas to E about the

     traveller culture, heritage, language and way of life;

     - under Article 11 of the Convention that the adoption of E

     prevents E from associating as an equal with other members of the

     travelling community into which he was born; and

     - under Article 2 of Protocol 1 that the adoption of E violated

     the applicant's right to educate his son in his traveller

     heritage;

3.   In addition, the applicant complains under Article 14 of the

Convention that the failure to attempt to match E's background to that

of his adoptive parents demonstrated discrimination because in the

consensual adoption process every effort is made to match the

background of the child and the adoptive parents.

4.   Finally, the applicant complains under Article 13 of the

Convention that the constitutional immunity of the Adoption Act 1988

meant that he had no effective domestic remedy.

THE LAW

1.   The applicant raises a number of complaints under Article 8

(Art. 8) of the Convention.

(a)  In the first place, the applicant complains about an unjustified

interference with his private and family life. In particular, he

complains about the adoption of his son, E, submitting that the High

Court should have had a secure long term fostering option available to

it for consideration.

     The applicant submits that he has suffered as a result of the

adoption. He claims, inter alia, that because E was adopted by a non-

traveller family and has not retained his name, E has lost access to

his traveller heritage, natural parents and background. The applicant

has also lost his right to educate E in the traveller culture and

heritage. The applicant further submits that with secure long term

foster care E could have felt secure with the foster parents to whom

he had grown attached and, on reaching adulthood or when the applicant

had the resources (both personal and financial) to offer a home to E,

E could have chosen which life he wished to lead. In addition, such an

option would have meant continued contact visits between E and P.

However, such visits are, according to the applicant, likely to cease

pursuant to E's adoption and the brotherly bond that had developed

between E and P will be lost.

     Article 8 (Art. 8) of the Convention, insofar as is relevant,

provides as follows:

     "1. Everyone has the right to respect for his private and family

     life ...

     2. There shall be no interference by a public authority with the

     exercise of this right except such as is in accordance with the

     law and is necessary in a democratic society 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 Commission considers that the applicant's complaints in

relation to his private life do not raise any issues separate to those

considered below in the context of his family life.

     As regards the applicant's complaints in relation to his family

life, the Commission finds in accordance with its established case-law

that the decision of the High Court of 5 November 1993 allowing the

Adoption Board to make an adoption order in relation to E constitutes

an interference with the applicant's right to respect for his family

life as guaranteed in Article 8 para. 1 (Art. 8-1) of the Convention

(cf., for example, Eur. Court H.R., Eriksson judgment of 22 June 1989,

Series A no. 156, p. 27, 59).

     It is then necessary to consider whether this interference is

justified under Article 8 para. 2 (Art. 8-2) of the Convention, namely,

whether it is "in accordance with the law", pursues one or more of the

legitimate aims set out in Article 8 para. 2 (Art. 8-2) and whether it

is "necessary in a democratic society" for one or more of those

reasons.

     The Commission recalls that the applicant accepts that the High

Court did not err in law and that the order of the High Court was taken

in accordance with the Adoption Act 1988 ("the 1988 Act"). The

Commission also considers it clear from the terms of the judgment of

Mr. Justice Geoghegan that the decision of the High Court was taken in

the best interests of the child. Accordingly, the Commission can

conclude that the decision in question was taken "in accordance with

law" and pursued the legitimate aims of protecting the child's health

and rights.

     As to whether the measure was necessary within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention, the case-law of the

Convention organs establishes that the notion of necessity implies that

the interference corresponds to a pressing social need and that it is

proportionate to the aim pursued. Furthermore, in determining whether

an interference is necessary, the Convention organs take into account

that a margin of appreciation is left to the Contracting States who are

in principle in a better position to make an initial assessment as to

the necessity of a given measure (see eg. Eur. Court H.R., W. v. the

United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27,

para. 59).

     Moreover, in determining whether or not the decision allowing

adoption was necessary, the Commission observes that it is not its task

to take the place of the competent national courts and make a fresh

examination of all the facts and evidence. The Commission's task is to

examine whether the reasons adduced to justify the interference at

issue are "relevant and sufficient" (see eg. Eur. Court H.R., Olsson

judgment of 24 March 1988, Series A no. 130, p. 32, para. 68).

     The Commission recalls the evidence before the High Court as to,

inter alia, the natural parents' past and current circumstances, the

impact an adoption order would have on their ability to pass on the

traveller heritage to their child and as to their wish that the child

remain in foster care in order to avoid this scenario. The conclusions

of the High Court on the evidence are also recalled and, in particular,

the Commission notes that despite the "favourable impression" made in

court by the applicant and the mother, the court felt bound to conclude

that the mother was hopelessly and irretrievably addicted for the

foreseeable future and that the applicant was an incurable alcoholic

in which circumstances neither was capable of rearing the child within

the foreseeable future. Satisfied that all the requirements of

section 3(1) of the 1988 Act had been met, that an adoption order would

be in the best interests of the child and that the foster parents were

"eminently suitable", the court made the order allowing for E's

adoption.

     The Commission is therefore satisfied that the order of the High

Court pursuant to section 3(1) of the 1988 Act was not arbitrary or

unreasonable and was supported by "relevant and sufficient" reasons.

     As regards the applicant's specific submission that the

consequences of an adoption were so extreme that a secure long term

fostering option was required as an alternative, the Commission does

not consider, in view of the margin of appreciation open to the

Contracting States in this area, that the lack of such a statutory

option rendered the court decision allowing for the adoption of E

disproportionate and unnecessary within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention. In any event, the Commission

notes that the High Court could have refused the application in which

case the child would have remained in de facto long term foster care

with the same foster parents. Moreover, the Commission recalls the

court's specific conclusion as to the benefit to the child of removing

any "residual insecurity in the child by reason of the fear that he

might be removed from the foster parents".

     The Commission therefore finds, even assuming exhaustion of

domestic remedies, that in the circumstances of the present case the

interference was justified as being "necessary in a democratic society"

for the protection of the health and rights of the children.

Accordingly, the Commission concludes that this part of the application

is manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

(b)  Secondly, the applicant complains about the lack of effort by the

relevant Health Boards to re-integrate the children with the applicant

and the mother (prior to the adoption application) or to help the

applicant and the mother overcome their various problems in order to

make such re-integration possible.

     The Commission recalls that, while Article 8 (Art. 8) of the

Convention imposes certain positive obligations on the State to act in

a manner calculated to allow family ties to develop normally, it does

not oblige the State to positively reestablish conditions of family

life already damaged by the people concerned (cf., Eur. Court H.R.,

Marckx judgment of 13 June 1979, Series A no. 31, para. 310 and

No. 6577/74, Dec. 19.12.74, D.R. 1, p. 91).

     In this respect, the Commission notes the facilities and support

services made available to the applicant and the mother by the

authorities both in relation to their continued addictions and as

regards contact with and information about their children. In contrast,

the Commission recalls the parents' continued alcohol and solvent

abuse, their failure to attend a number of pre-arranged contact visits

with E, their respective conditions during meetings with the social

worker from the Southern Health Board and their respective periods of

imprisonment.

     Accordingly, the Commission considers that, in the circumstances

of this case, there has been no lack of respect for the applicant's

family life. The Commission therefore concludes that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

(c)  Thirdly, the applicant also makes a number of complaints in

relation to the fostering arrangements in respect of E and P. In

particular, he complains, inter alia, about the initial placement of

E with a non-traveller family and about the length of time E was left

with that foster family. As a result E bonded with that family and a

transfer to a travelling family was not an option by the time of the

adoption proceedings before the High Court. The taking into care and

subsequent fostering of E and P in different districts contributed to

the break-up of the family.

     The Commission notes that as regards E's initial placement, and

even assuming that the applicant had no effective domestic remedy, his

complaint in this respect is outside of the time limit set down by

Article 26 (Art. 26) of the Convention. As regards E's subsequent care

and P's placement and subsequent care, the Commission notes that the

applicant did not make an application for guardianship pursuant to the

Status of Children Act 1987 and, as such, did not exhaust domestic

remedies as required by Article 26 (Art. 26) of the Convention.

Therefore the Commission must declare this complaint inadmissible

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

2.   The applicant also complains under Articles 10 and 11

(Art. 10, 11) of the Convention and under Article 2 of Protocol 1

(P1-2) that the adoption of E violated the applicant's right to impart

information and ideas to E in relation to his traveller heritage, that

E is precluded from associating as an equal with other members of the

travelling community and that the applicant no longer has the right to

educate E in his traveller heritage. However, in the circumstances of

the present case, the Commission does not consider that these

complaints of the applicant give rise to any issues separate to those

considered above under Article 8 (Art. 8) of the Convention.

3.   The applicant further complains under Article 14 (Art. 14) of the

Convention about a failure to attempt to match E's background to that

of the adoptive parents. He submits that, in contrast, every effort is

made to match the background of the child and the adoptive parents in

a consensual adoption process.

     The Commission notes that the applicant accepts that by the time

of the adoption proceedings the child had already bonded with his

foster parents and that there was therefore no reality in any

suggestion that E should be moved to different parents. The question

raised by this complaint is, therefore, whether the applicant took any

steps to challenge E's initial committal to care or E's ongoing

fostering at a time when it could have been reasonably said that E had

not bonded with those foster parents. In view of the conclusions in

these respects at paragraph 1(c) above, the Commission therefore

considers that this complaint must also be declared inadmissible as out

of time and on grounds of non-exhaustion of domestic remedies pursuant

to Article 27 para. 3 (Art. 27-3) of the Convention.

4.   Finally, the applicant complains that the constitutional immunity

of the 1988 Act meant that he had no effective domestic remedy in

violation of Article 13 (Art. 13) of the Convention.

     The Commission recalls that Article 13 (Art. 13) of the

Convention does not go so far as to guarantee a remedy allowing a

Contracting State's laws as such to be challenged before a national

authority on the ground of being contrary to the Convention or to

equivalent domestic legal norms (Eur. Court. H.R., James and Others

judgment of 21 February 1986, Series A no. 98, p. 47, para. 85).

Accordingly, the Commission finds this complaint manifestly ill-founded

and inadmissible pursuant to Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber         President of the First Chamber

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