Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16424/90

by Antony and Margaret McMICHAEL

against the United Kingdom

The European Commission of Human Rights sitting in private on

8 December 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, 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 11 October 1989

by Antony and Margaret McMichael against the United Kingdom and

registered on 10 April 1990 under file No. 16424/90;

Having regard to

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on 16 May

1991 and the observations in reply submitted by the applicant on

5 August 1991 and 25 September 1991;

- the oral submissions of the parties at the hearing held on

8 December 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, who are now husband man and wife, are British

citizens born in 1938 and 1954 respectively and resident in Glasgow.

The facts as submitted by the parties may be summarised as follows.

The second applicant gave birth to a son A. on 29 November 1987.

The first applicant, who was living with the second applicant, was

later named as the father on the birth certificate.

The second applicant had a history of recurrent mental illness.

She was first ill in or about 1973 and was admitted to psychiatric

hospital on a number of occasions. There was a recurrence of her

illness shortly after A.'s birth. As a result, the Social Services of

Strathclyde Regional Council ("the Council") took A. into care on 11

December 1987 under a Place of Safety Order.

On 17 December 1987, the case was brought before a Children's

Hearing. The second applicant was present.

The ground of referral to the Children's Hearing was -

"that a lack of parental care is likely to cause him unnecessary

suffering or seriously to impair his health or development"-

Section 32 (2)(c) of the Social Work (Scotland) Act 1968 ("the

1968 Act").

The statement of facts given in support of the ground of referral

stated inter alia:

(1) That A. ... was born on 29 November 1987

(as far as can be ascertained), and presently is in the Special

Baby Care Unit of the Southern General Hospital, Glasgow...

(2) that the suffers from a major psychiatric

illness.

(3) that the refuses to take medication to

stabilise her condition when not an in-patient at psychiatric

hospital.

(4) that the has required to be admitted to

psychiatric hospital on emergency basis under the Mental Health

(Scotland) Act 1984 on <5 June 1986, 5 December 1986 and 31

December 1986>.

(5) that due to her psychiatric condition the

is unlikely to be able to care adequately for the child."

At the hearing on 17 December 1987 the ground of referral and

statement of facts were put to the second applicant. She denied the

ground of referral. The Children's Hearing accordingly instructed the

Reporter to apply to the Sheriff for a finding on whether the ground

of referral was established.

The Children's Hearing on 17 December 1987 also issued a warrant

for continued interim detention of A. in a place of safety pending

determination of the merits of the case. Subsequent warrants for

continued detention were granted by a further Children's Hearing on 5

January 1988 and by the Sheriff Court at Glasgow on 21 January 1988.

On 23 December 1987, A. was discharged from hospital and taken

to foster parents. The second applicant discharged herself from

hospital. Arrangements were made for her to be taken 3 times a week

for access visits to A. at the foster home, under the supervision of

the Council.

It was decided by the Council at this stage that the first

applicant should not be included in the access arrangements. The

principal reason for this was that at this time the second applicant

still denied that the first applicant was the father. Other reasons

were his aggressive and threatening attitude and his refusal to give

information about his background.

The second applicant complained about the placement in Greenock

and inadequacy of access arrangements. At first she accepted the

exclusion of the first applicant, but she and the first applicant

subsequently complained about it. The second applicant failed to appear

for four of the access visits between 31 December 1987 and 18 January

1988. On 21 January 1988 the Reporter's application for a finding on

the grounds of referral was heard in the Glasgow Sheriff Court. The

second applicant was present and represented. The first applicant was

also present. Evidence was heard from medical, nursery and social

work witnesses and the first and second applicants both gave evidence.

At the conclusion of the hearing the Sheriff found the grounds of

referral established. He remitted the case to the Reporter for him to

arrange a Children's Hearing to consider and determine the case. The

second applicant did not appeal to the Court of Session.

On 27 January 1988, the Council held a child care review of the

case, at a meeting at which the applicants were both present. A

consultant psychiatrist advised that the second applicant was seriously

mentally ill and would not accept treatment. It was decided that in

view of this, access should be terminated, though this decision would

be reviewed if the second applicant had treatment and her mental state

improved. The first applicant had also requested access at the

meeting, claiming that he was A.'s father. Access was refused since

the second applicant maintained that he was not the father and in light

of his aggressive and threatening attitude.

In February 1988, the applicant was admitted to hospital where

she remained until June 1988.

On 4 February 1988, the Children's Hearing met to consider the

case. The second applicant attended, with the first applicant as her

representative. The Panel had a number of documents before it,

including a report on the child compiled on 28 January 1988 reviewing

the history of the case and proposing that A. continue to reside in the

foster home. These documents were not produced to the applicants but

the Chairman informed them of their substance.

At the conclusion of the hearing it was decided that it would not

be appropriate in the interests of A. to commit him to the care of the

applicants and made a supervision requirement under Section 44 (1) a

of the 1968 Act placing A. under the supervision of the Council subject

to the condition that he reside with the foster parents. The decision

was based, inter alia, on the mental health of both applicants and the

aggressive and hostile nature of both applicants. This decision did

not make any provision as to access. In such circumstances the

presumption is that parents get reasonable access subject to Section

20 (1) of the 1968 Act which empowers a local authority to deny access

where necessary for the child's welfare.

The second applicant lodged an appeal, which was due to be heard

at the Sheriff Court on 29 February 1988. The second applicant

attended court, with two nurses, apparently heavily sedated. Following

discussion, the Sheriff asked if the second applicant would prefer to

ask for a review by a Children's Hearing of the supervision requirement

rather than pursue her appeal. The second applicant agreed.

A review was held by the Council on 27 April 1988 and was

attended by both applicants. In view of the second applicant's

improved mental state it was decided to allow the second applicant

supervised access visits. By this time, the second applicant had

agreed that the first applicant was A's father and on 18 February 1988,

the first applicant's name had been added to the birth certificate.

This did not give the first applicant any parental rights. At the

review, the Council decided not to grant him access until he gave them

information about his background which he had so far refused to do.

On 24 August 1988, the first applicant's solicitors applied to

the Scottish Legal Aid Board for legal aid for an action in the Court

of Session to obtain custody or access. The Board refused legal aid

on the ground that the action was incompetent since the Court of

Session had no power to lift the supervision requirement and would not

intervene in access disputes. Counsel then advised the first applicant

that this decision was correct but that the best method of obtaining

access would be to get the Children's Hearing to review the supervision

requirement.

On 20 September 1988, the Council held a further review. They had

held meetings with the first applicant to obtain background information

and made inquiries with his doctor and the police. It was decided at

the review to allow both applicants access of 3 visits per week at a

Special Centre and give the applicants assistance in learning parenting

skills. It was also intended that there should be access for one 24

hour period. This intensive access was to last for 3 months after

which an assessment would be made.

On 13 October 1988, the Children's Hearing held a review of the

supervision requirement. The second applicant was present and the

first applicant was present, as her representative. It had before it

a report dated 20 September 1988 updating information on A. and

outlining the proposed access arrangements. This report was not

disclosed to the applicant's though the Chairman informed them of its

substance. The applicants had submitted a statement alleging inter

alia that they had never had an opportunity to show that they could

care for A.

After the hearing, it was decided to continue the supervision

requirement and to approve the access proposals. The Hearing

considered that only time would show if rehabilitation was a viable

prospect and that the second applicant's mental health should be

closely monitored.

The second applicant did not appeal to the Sheriff Court.

The access period lasted from 4 October 1988 to 19 December 1988,

during which the applicants had approximately 23 access visits. The

social workers did not consider the visits to be a success. In reports

dated 22 November 1988 by a health visitor and 23 November 1988 by a

doctor, it was stated that the applicants frequently argued before A.

and displayed aggression to the staff, with the result that they were

excluded from two child care centres.

On 19 December 1988, a child care review was held, at which the

applicants were present. It was decided to terminate access visits in

view of concern about the long-term effects on A. and the fact that no

obvious progress had been made in the applicants' ability to care for

A. The Council also decided to investigate the option of freeing A.

for adoption. The applicants appealed internally to the District

Manager of Social Services, who confirmed the decision by letter of 28

December 1988.

Following the second applicant's application, the Children's

Hearing carried out a review on 20 June 1989. The second applicant was

present with the first applicant as her representative. A report dated

28 June 1989 was before the Hearing further updating the case. It

described the access period and reported that A. was happy and

developing well and that prospective adopters were being sought.

The applicants applied for access to be re-established. The

Hearing considered that there was a conflict of interest between the

counsel and the second applicant, and probably between parent and child

and decided that a safeguarder should be applied to represent the

child's interests.

The Safeguarder, appointed by the Hearing, interviewed, inter

alia, the applicants, the social workers, the foster-parents and the

police. His report of 18 August 1989 stated, inter alia, that A. was

being adequately cared for by the foster parents and that it was

desirable that the second applicant should obtain a doctor's opinion

on her mental state.

The adjourned Children's Hearing reconvened on 5 September 1989.

The applicants were present and the second applicant represented by a

solicitor. The Safeguarder's report and other documents before the

Hearing were not disclosed to the applicants, but the Chairman informed

them of the substance. The Safeguarder attended the hearing and

confirmed his view that A.'s best interests would be served by his

remaining in care. The Hearing concluded that the supervision

requirement should continue and that there was nothing in what they had

heard to convince them that they should grant access. They did not

take up the suggestion of obtaining an independent psychiatric report

on the second applicant.

The second applicant appealed to the Sheriff Court on the

grounds:

(a) that they had not been informed of the substance of the

documents produced at the hearing,

(b) that the refusal of access was based on inadequate

information, in particular the lack of up to date information as

to the second applicant's mental health and

(c) that an adjournment for the purpose of obtaining a

psychiatric report had been refused.

Ground (a) was apparently not pursued at the appeal, which took

place on 4 October 1989. The Sheriff decided that it would have been

appropriate to obtain a psychiatric report and remitted the case to the

Children's Hearing.

A psychiatric report dated 29 September 1989 had been produced

at the request of the second applicant's solicitors. This report

indicated that the second applicant suffered from a recurrent mental

illness but that this was in remission and if it recurred it could

respond satisfactorily to treatment as in the past. He considered

access should be re-established and that A. should eventually be

returned to the applicants.

A Children's Hearing to consider the report was to be convened

on 9 January 1990 but neither applicant attended or was represented,

the Hearing being informed that the second applicant had been declared

insane and admitted to hospital. A further Hearing was held on 18

January 1990. Neither applicant attended or was represented. The

Hearing concluded that the second applicant was not well enough to have

access to A. and that they could not see any future for A. with her.

A condition was added to the supervision requirement that there be no

access by the second applicant. The second applicant did not appeal.

On 1 February 1990, the Council lodged with the Sheriff Court a

petition for freeing A. for adoption.

The applicants were married on 24 April 1990. The first

applicant thereby obtained parental rights in respect of A.

The petition was heard between 18 June 1990 and 27 July 1990.

The applicants refused to give their consent to adoption. They were

present at the hearing and the second applicant represented by a

solicitor. The documentary evidence before the Court had been

disclosed to the applicants. Witnesses were heard and the applicants

given the opportunity to cross-examine them and lead their own

evidence.

On 12 August 1990 the applicant was re-admitted to hospital. On

14 October 1990 the Sheriff decided that the applicants were

withholding their consent unreasonably. He decided to dispense with

their consent and granted the order freeing A. for adoption.

"In my view, there is no escaping from the conclusion that both

these parents are withholding their agreement unreasonably. They

are withholding their agreement because they are not parents who

have begun to demonstrate their capacity to have custody. [The

second applicant] suffers from a grave mental illness which may

at any time, unless appropriate medical treatment is taken,

incapacitate her from looking after, not only a child, but

herself. Even when her illness is not to the degree at which

hospitalisation is required, she has been demonstrated as

incapable of the most elementary physical and emotional

capacities in parenting. The one capacity she does have, I

accept, is the desire to be a parent, to have the child, but the

accomplishment of that ambition is, I fear, demonstrated to be

beyond her. The incapacity of the father to behave normally as

a parent to the child is established by the evidence of Mrs. K.

and Mrs. M., whose testimonies support the findings in fact I

have made relating to what happened on the access visits. The

child, now nearly three, has in fact, as an infant, rejected both

his parents ...

The [applicants] are objecting to the child being freed for

adoption in order, and only in order, that they can have custody

of him. Such a conclusion can only be viewed with the utmost

misgiving for the future of this child. He is presently reared

in a house by foster parents who have enabled him to withstand

the traumas of these access visits by the [Respondents]. It

would be wholly contrary to his welfare for this present state

which is one of uncertainty, to be prolonged and the possibility

of his parents having his custody contemplated. Neither his

mother, nor [the first applicant], are interested in the welfare

of the child. They are incapable of distinguishing between the

child's interests and their having possession of him. A

reasonable parent would give great weight to the welfare of the

child. The welfare of this child clearly does not lie with his

being with his parents, and their opposition to the present

application is, in my view, unreasonable. Any objective view of

their attitude and of their conduct, in my view, discloses its

unreasonableness. Mrs. K., whose experience as a Health Visitor

is extensive and impressive, and whose experience of the

[applicants] in the course of this case was considerable and

whose testimony I accept, gave her opinion of [the first

applicant] at the end of the penultimate paragraph of her report

produced and of the risks she feared to the child if he was

involved with him. Standing such a censure from such a source,

which I accept as valid, his present attitude, viewed

objectively, can, in my view, only be regarded as

unreasonable ..."

In December 1990 the applicants lodged an appeal to the Court of

Session. They applied for legal aid and appear to have been granted

legal aid for the purposes of obtaining counsel's opinion. Counsel

advised that an appeal had no prospect of success and legal aid was not

extended. The applicants continued their appeal representing

themselves.

Their appeal was dismissed by the Court of Session on 1 November

1991. The Court held that the Sheriff was justified in concluding that

because of the mental health of the second applicant and the first and

second applicants' lack of understanding how properly to care for a

child, it would have been contrary to the best interests of A. to

return him to the applicants' custody.

Relevant Domestic Law and Practice

Rights of parents

Under Scots law, the nature of the rights enjoyed by parents in

relation to their children is governed by the common law. In respect

of girls under 12 and boys under 14, parents enjoy inter alia,

(1) the right of tutory which can be described as the right

to administer the child's property and to act legally on

behalf of the child;

(2) the right of custody, which can be described as the

right of the parent to have the child living with him or

her, or otherwise to negotiate the child's residence and to

control the child's upbringing;

(3) the right to access

The persons who may exercise parental rights are governed by the

Law Reform (Parent and Child) (Scotland) Act 1986 ("the 1986 Act").

Section 2 (1) provides:

Subject to sections 3 and 4 of this Act-

(a) a child's mother shall have parental rights whether or

not she is or has been married to the child's father;

(b) a child's father shall have parental rights only if he

is married to the child's mother or was married to her at

the time of the child's conception or subsequently.

Under Section 3, any person claiming an interest may make an

application to the court for an order relating to parental rights and

where it is in the interests of the child the court may make such an

order. A father of a child born out of wedlock may obtain parental

rights under this procedure by applying either to the Court of Session

or the local Sheriff Court.

Compulsory Measures of Care

The rules regarding compulsory measures of care in respect of

children are set out in Part III of the Social Work (Scotland) Act 1968

("the 1968 Act") supplemented by subordinate legislation.

Under Section 20 of the 1968 Act, the local authority has a

general responsibility for promoting social welfare in its area. It

has the duty to inquire into and tell the Reporter of cases of children

who may need compulsory measures of care.

The Reporter is appointed under Section 36 of the 1968 Act by the

local authority. Though employed by the local authority, he is

expected to exercise his judgment independently and is separate from

the local authority's social work department. He may not be removed

from office without the consent of the Secretary of State. His duties

include deciding whether a case should be referred to the Children's

Hearing and arranging such hearings when they are necessary.

Children's Hearings

Children's Hearings are the sittings of members of the children's

panel which decide whether a child requires compulsory measures of care

and if so, they may order such measures. Pursuant to Section 34 of the

1968 Act, a Children's Hearing consists of a chairman and 2 other

members drawn from the children's panel constituted under Section 33

of the 1968 Act.

Section 33 and Schedule 3 provide for constitution of the

children's panel. The Secretary of State appoints a children's panel

for each local authority area. appropriate. The members hold office

for such period as the Secretary of State specifies, but may be removed

by him at any time.

The Children's Hearing may only consider the case of a child

where it has been referred to them by the Reporter and where certain

"grounds of referral" are established, either by agreement with the

child and his parent or by a court decision.

The grounds of referral

The Children's Hearing may only consider a case and decide if

compulsory measures of care are appropriate where one of the "grounds

of referral applies to the child, either by being accepted by the child

and his parent or by being established by a decision of the Sheriff.

The grounds as set out in Section 32 of the 1968 Act, include -

(c) lack of parental care is likely to cause him

unnecessary suffering or seriously to impair his health or

development;

Thus, in the absence of agreement, a decision by a judge on the

grounds of referral after hearing appropriate evidence, is essential

before the Children's Hearing can consider the case.

A parent has the right to attend at all stages of a Children's

Hearing. "Parent" excludes the father of a child born out of wedlock

but includes a person who has been granted parental rights under

Section 3 of the 1986 Act. A parent may be represented, by any person

of their choice. Where the Chairman of the Children's Hearing considers

that there is a conflict of interest between child and parent, he has

the power to appoint a person known as a safeguarder to represent the

child.

Procedure

The Reporter is under a duty to notify the parents of a child of

a Children's Hearing giving at least 7 days' notice. He also must

provide before the first hearing a statement of the grounds of

referral.

At the first Children's Hearing, they must ascertain if the

grounds of referral are accepted by the child and his parent. If they

accept, the hearing may proceed. If not, they must direct the Reporter

to apply to the Sheriff Court for a decision as to whether the grounds

are established. Such application must be made within 7 days and heard

within 28 days of that application. The parents may appear as parties

and be represented. Following a hearing, the Sheriff may either

discharge the referral or where he is satisfied that the grounds are

established, remit the case to the Reporter. The Reporter, pursuant

to S. 42(6) of the 1968 Act arranges for consideration and

determination of the case by the Children's Hearing.

At this stage, the Children's Hearing must consider what

arrangements would be in the best interests of the child (Section 43

of the 1968 Act).

They may, inter alia,

(1) decide no further action is required and discharge

the referral

(2) adjourn pending further investigations, including

directing that a child attend a clinic or hospital;

(3) make a suspension requirement under Section 44,

requiring the child to submit to supervision in accordance

with such conditions as they may impose or to reside in a

named establishment.

Before the conclusion of the hearing the chairman must inform the

child, parent or parents, safeguarder if any and representatives if

attending the hearing of the decision of the Children's Hearing the

reasons for the decision the right of the child or parent to appeal to

the Sheriff against the decision and the right of the child and parent

to receive a statement in writing of the reasons for the decision.

Such a written statement must then be given if requested. Any parent,

child or safeguarder who did not attend must be notified in writing of

the decision, the right to receive a statement of reasons and the right

to appeal. (Children's Hearing, Rules 19(4) and 20).

The mode of operation of a Children's Hearing is intended to

differ from that of a court. The Children's Hearing is intended to

determine what is in the child's best interest. Its aim is to achieve

this by informal discussion, not by an adversarial procedure.

Nevertheless, the child and his parent, and any safeguarder appointed

to look after the child's interests, must be fully involved in the

discussion.

Reports and documents considered at the Children's Hearing

The Children's Hearings are required to consider all the

information so supplied (Children's Hearings rules, Rule 19(2)(a).

Apart from the statement of grounds of referral this information

(reports, documents etc.) is not usually supplied to the child or his

parents, but the chairman is required at the hearing to inform the

child and his parents of their substance if it appears to him that this

is material to the manner in which the case should be disposed of and

that its disclosure would not be detrimental to the interests of the

child (Children's Hearing Rules, Rule 19(3) ).

Supervision requirements

Supervision requirements are the orders of the Children's Hearing

imposing compulsory measures of care. They may be of 2 kinds.

(a) Requirements to submit to supervision in accordance

with such conditions as the Children's Hearing may impose.

(Section 44(1) (a) of the 1986 Act). The conditions may include

for example conditions requiring the child to reside in a

particular place other than a residential establishment or

with particular persons.

(b) Requirements to reside in a named residential

establishment and to be subject to such conditions as the

Children's Hearing may impose. (Section 44(1)(b) of the

1968 Act).

The effect of supervision requirements has been clarified in

court decisions, in particular the decisions of the Court of Session

in the cases of Aitken v. Aitken 1978 SC 297, Dewar v Strathclyde

Regional Council 1984 SC 102 and Kennedy v. A 1986 SLT 358. A

supervision requirement makes the local authority responsible for the

care of the child in accordance with the requirement and give them the

necessary powers to exercise this responsibility. It does not,

however, formally vest in them any parental rights of custody and does

not take away parental rights. Those rights are subject to the

supervisory requirements and so far as inconsistent with those

requirements they cannot be exercised. Thus the right of custody cannot

be exercised where a supervision requirement has required a child to

live in foster care. The Court of Session has indicated in the case

of Aitken v. Aitken that while such a supervision requirement subsists

it would be possible for them to award a person custody of the child,

but this award would have effect subject to the supervision requirement

and the person could not exercise actual custody while the supervision

requirement subsisted.

As regards access, the Children's Hearing are entitled to attach

conditions as to access when making or continuing a supervision

requirement. This was made clear in the case of Kennedy v. A. In the

absence of any express condition as to access, the parents will be

given reasonable access. However, it is competent for a local

authority to terminate access where that is appropriate in pursuance

of their duty under Section 20 of the 1968 Act.

The Court of Session have made it clear in the case of Dewar v.

Strathclyde Regional Council, that the courts will not adjudicate on

questions of access between the parents and the local authority. If

a parent is dissatisfied with the decision of a local authority as to

access, the Court of Session have indicated that it is appropriate for

him to apply to the Children's Hearing to regulate the matter by

attaching a condition as to access to the supervision requirement.

A parent has the right to request a review of a supervision

requirement every 6 months after the last review (Section 48 (4) of the

1968 Act) and can use this right to obtaining a ruling on access.

Duration and review of supervision requirements

The 1968 Act prescribes that a child should not continue to be

subject to a supervision requirement for any longer than is necessary

for his interest. The requirement must be reviewed by a Children's

Hearing -

(a) at any time if the local authority consider that it

should cease to have effect or be varied;

(b) within one year, otherwise it will cease automatically

to have effect;

(c) at the request of the child or his parent, after the

expiry of these periods.-

(i) 3 months from imposition of the

requirement;

(ii) 3 months from any variation of the

requirement of review;

(iii) 6 months from any other review.

The Reporter must make the necessary arrangements for such

revision hearings. On review the Children's Hearing may terminate,

continue or vary the requirement. (Section 47 (1) and 48 of the 1968

Act).

Appeal against decision of a Children's Hearing

Within 3 weeks of a decision of a Children's Hearing a child or

parent or both may appeal against it to the Sheriff (Section 49(1) of

the 1968 Act). This applies to all decisions.

The Reporter has the duty to ensure that all reports and

statements available to the Children's Hearing along with reports of

the proceedings of the Children's Hearing and their reasons for their

decisions are lodged with the clerk to the Sheriff Court. These

documents are not made available to the parents as a matter of

practice.

The appeal is heard in chambers. The Sheriff must first hear the

appellant or his representative and any safeguarder appointed. Where

an irregularity in the conduct of the case is alleged, then unless the

facts are admitted by the Reporter, the Sheriff must hear evidence

tendered by or on behalf of the appellant and Reporter as to the

irregularity.

The Sheriff will then proceed to question, if he thinks fit, the

Reporter and the authors or compilers of any reports and statements

before him. He can call for further reports and statements where he

thinks this may help him. The child and parents and safeguarder are

normally entitled to be present throughout.

The Sheriff looks at the merits of the case. Where he decides

the appeal has failed, he confirms the decision of the Children's

Hearing. Where he is satisfied that the decision is not justified in

all the circumstances of the case, he may remit the case to the

Children's Hearing for consideration or discharge the child from any

further proceedings arising from those grounds of referral (Section

49(5) of the 1986 Act).

Adoption procedure

The legislation governing adoption procedure is the Adoption

(Scotland) Act 1978 ("the 1978 Act").

Under the 1978 Act, an order declaring the child free for

adoption may be made by the Court of Session or Sheriff Court.

Before making the order the court must be satisfied as regards

each parent or guardian of the child that either -

(a) he or she freely, and with full understanding of what

is involved, agrees generally and unconditionally to the

making of an adoption order; or

(b) his or her agreement to making the adoption order

should be dispensed with on one of the grounds specified in

Section 16(2) of the 1978 Act.

There are a number of grounds for dispensing with the parents'

or guardians' consent. These include the ground that the parent or

guardian is withholding his agreement unreasonably.

For the purposes of the 1978 Act the natural father of a child

born out of wedlock would not be a "parent' except where he has

subsequently married the mother or has a parental rights order in his

favour.

The effect of an order freeing the child for adoption is to vest

parental rights and duties in the adoption agency and to extinguish

existing parental rights.

An order of the Sheriff Court freeing a child for adoption is

subject to appeal to the Court of Session. On such an appeal the Court

of Session can decide on the merits of the action. The Court of

Session will normally proceed on the basis of the Sheriff's findings

of fact but is not obliged to do so. It may where appropriate take

evidence itself or remit the case to the Sheriff with instructions as

to how he should proceed.

COMPLAINTS

The applicants complain that they have been deprived of the care

and custody of their son A. and thereby of their right to found a

family. They complain that they have not had a fair hearing before the

Children's Hearing and that they have not had access to confidential

reports and other documents submitted to the Hearing. They complain of

being deprived of access to A. and of the freeing of A. for adoption.

The first applicant also complains that as a natural father he

had no legal rights to custody of A. or to participate in the custody

or adoption proceedings and that he was discriminated against in this

respect.

The applicants do not invoke any particular provision of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 October 1989 and registered

on 10 April 1990.

On 3 December 1990 the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

It decided not to refer the case to a Chamber.

The Government's observations were submitted on 16 May 1991 after

two extensions in the time-limit and the applicant's observations in

reply were submitted on 5 August 1991 and 25 September 1991.

On 7 April 1992, the Commission decided to hold an oral hearing.

On 23 July 1992, the Commission granted the applicants legal aid.

At the oral hearing, which was held on 8 December 1992, the

parties were represented as follows:

For the Government:

Ms. D. Brookes Agent

Mr. T. Dawson, QC Solicitor General for Scotland

Counsel

Mr. D. Ogg, Advocate Counsel

Mr. J.W. Sinclair Adviser

Mr. J.L. Jamieson Adviser

For the applicant:

Mr. Peter McCann Solicitor

Mrs. McCann Assistant

Mr. and Mrs. McMichael, the applicants, were also present.

THE LAW

1. The applicants complain that they have been deprived of the care

and custody of their son A. They also complain of the termination of

access and the freeing of A. for adoption.

The Commission has examined these complaints under Article 8

(Art. 8) of the Convention, which provides as follows:

"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 Commission finds, in accordance with its well-established

case-law, that the decisions refusing custody, terminating access and

freeing their son A. for adoption constituted an interference with the

applicants' right to respect for their family life within the meaning

of the above provision (see e.g. Eur. Court. H.R., W. v. the United

Kingdom Judgment of 8 July 1987, Series A no. 121, p. 27 para. 59).

The Commission must therefore examine whether this interference was

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

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

legitimate aims enumerated in Article 8 para. 2 (Art. 8-2) and whether

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

aims.

The Commission recalls that the compulsory measures of care were

taken under the provisions of the Social Work (Scotland) Act 1968 and

the freeing for adoption order granted by the Sheriff Court pursuant

to the provisions of the Adoption (Scotland) Act 1978. The Commission

notes that the decisions were taken as being in the best interests of

A., having regard, inter alia, to the difficulties posed by the second

applicant's health. In these circumstances, the Commission finds that

these decisions were "in accordance with the law" and for the

legitimate aim of protecting A.'s health and rights.

The question remains whether the decisions were "necessary"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

The case-law of the Commission and the Court 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.

Further, in determining whether an interference is necessary the

Commission and the Court will take into account that a margin of

appreciation is left to the Contracting States, which are in principle

in a better position to make an initial assessment of the necessity of

a given interference. It is not the Commission's task to take the

place of the competent national courts and make a fresh examination of

all the facts and evidence in the case. The Commission's task is to

examine whether the reasons adduced to justify the interference at

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

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

The Commission has accordingly examined the reasons given for the

decisions.

The Commission recalls that the decisions depriving the

applicants of the care and custody of A. were taken in light of the

facts, established before the Sheriff Court, that the second applicant

suffered from a major psychiatric illness and was as a result unable

to care adequately for A. The Commission recalls that the decisions

of the Children Hearing regarding the applicants' access to A. were

made following a 3 month period of intensive access during which

concern arose as to the effect on A. and it appeared that the

applicants had made no progress in their ability to care for. A. The

second applicant also had a recurrence of ill-health during this period

and was admitted to hospital. As regards the decision to free A. for

adoption, the Commission notes the judgment of the Sheriff given as 14

October 1992 where he found that the applicants had failed to

demonstrate the capacity for parenting and that, in light of the

evidence, it would be wholly contrary to A.'s welfare for him to be

returned to them.

The Commission finds that the above reasons were "relevant and

sufficient" for the decisions in question and were based on a thorough

and careful investigation of the case.

The Commission concludes, bearing in mind the margin of

appreciation accorded to the domestic authorities, that the

interference in the present case was justified under Article 8 para.

2 (Art. 8-2) of the Convention as being "necessary in a democratic

society" for the protection of health and for the protection of the

rights of others.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicants also complain that they were unable to see the

confidential reports and documents submitted to the Children's

Hearings. The first applicant further complains that as a natural

father (prior to his marriage to the second applicant) he had no legal

rights to custody of A. or to participate in the care proceedings and

that he was discriminated against in these respects.

The Commission has examined these complains under Article 6, 8

and 14 (Art. 6, 8, 14) of the Convention.

Article 6 (Art. 6) provides, as relevant:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

Article 8 (Art. 8) [see above].

Article 14 (Art. 14) 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 Commission considers that these complaints raise serious

question of fact and law which are of such complexity that their

determination should depend on an examination on the merits. It

follows that the complaints cannot be dismissed as manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring them inadmissible has been

established.

For these reasons, the Commission, by a majority,

DECLARES INADMISSIBLE the applicants' complaints relating to the

taking of A. into care, the termination of access to A. and

freeing of A. for adoption;

DECLARES ADMISSIBLE the remainder of the application, without

prejudging the merits.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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McMICHAEL v. THE UNITED KINGDOM

McMICHAEL v. THE UNITED KINGDOM

LEXI