Lexploria

Application No. 18456/91

by Denise WERBICKAS

against the United Kingdom

The European Commission of Human Rights sitting in private on

31 August 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

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 7 February 1991

by Denise WERBICKAS against the United Kingdom and registered on 3 July

1991 under file No. 18456/91;

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

Stockton.

The facts, as submitted by the applicant, may be summarised as

follows.

The applicant gave birth to her daughter F. on 13 November 1986.

She had already received treatment for depression and had been admitted

to hospital several times. Following the birth, she suffered from a

post-natal depression and was experiencing problems with her marriage

breaking down. On 7 February 1987, she was admitted to a psychiatric

unit with her baby. On 15 April 1987, the Social Services removed F.

from the unit, following a decision that mother and child should be

permanently separated. A case-conference had been held to which

neither she nor any of her family had been invited. The applicant

alleges that she asked for F. to be cared for by her own family pending

her discharge but that her request was refused. On 16 April 1987 F.

was made a ward of court and on 12 May 1987, her interim care was

confided to the local authority. Between April 1987 and July 1988, F.

remained with short-term foster parents.

The applicant was discharged from hospital on 22 June 1987.

On 19 October 1987, the court ordered that the applicant and F.

spend a period of time together in a special unit. The applicant

however discharged herself, considering that she did not require

hospital treatment and wanting to care for F. at home. The case came

for hearing before the High Court on 5 February 1988. The applicant's

solicitor had failed to prepare the case properly. No affidavits had

been filed. The court made an order to place F. with long-term foster

parents with a view to adoption and terminated the applicant's access

to F. The applicant's counsel had applied for an adjournment, but this

was refused.

It is unclear whether the applicant's solicitor failed to put in

any appeal against the decision or, having lodged an appeal, it was

dismissed. The applicant was merely told by her solicitor some time

after the hearing that the appeal had been dismissed.

On 20 March 1990, the Official Solicitor was appointed guardian

ad litem of F.

The applicant made an application for care and control of F,

which was heard on 30-31 October and 1 November 1990. The application

was dismissed and access of the applicant to F. was terminated, but the

applicant's solicitor was summoned to show cause why an order should

not be made in respect of their costs.

On 16 November 1990, the Court made an adoption order in respect

of F., dispensing with the applicant's consent.

In his report to the Court, the Official Solicitor recommended

that adoption was in the best interests of F. but criticised the local

authority as being precipitate in its decision to separate F. and the

applicant and for failing to try to rehabilitate them at an early stage

with the support of the applicant's extended family. He also

criticised "the failure of the legal processes to ensure that all of

the parties gained a full and fair hearing of their points of view...".

He added: "It is alarming that [the applicant] was so poorly

represented. What I find even more alarming is that the lack of proper

representation of [the applicant's] case was not picked up by those

other members of the legal profession who were present at the

proceedings. In terms of the best interests of F. a thorough hearing

at that point would have ensured that her future could have been

secured without the need for such delay and distress to all the parties

concerned ..."

The judge, when making the adoption order, also deprecated the

decision-making process followed by the local authority, in particular

their decision immediately to pursue the policy of adoption and not to

investigate more thoroughly the possibility of rehabilitating F. with

the applicant and her family. He also noted that the local authority

had not served affidavits until the day of the hearing on 5 February

1988 and that the applicant's solicitor had given no instructions to

counsel. He however concluded that in view of the possible risk of the

applicant suffering further health problems and the risk of taking F.

again from a settled environment where she had been for two years, it

was in F.'s interests to stay with her adoptive parents. The applicant

was advised by her legal representative that she had no grounds of

appeal.

The applicant has been advised that she has a claim for

negligence against her former solicitors, and proceedings have been

instituted.

COMPLAINTS

The applicant has complained that she was not involved in the

decision taken with respect to F.'s future while she was in hospital

and that the social services refused to allow F. to remain with the

applicant's family. She has also complained that she did not receive

a fair hearing in February 1988 and that she has been deprived of the

right to bring up F. as a Catholic (F. has been placed with

non-Catholic adopters).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 February 1991 and

registered on 3 July 1991.

On 2 December 1991, 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 30 April 1992, the Government proposed

settling the case on the basis of an ex gratia payment of £3 000 and

paymant of reasonable legal costs. By letter dated 1 July 1992, the

applicant's solicitors informed the Secretariat that she had accepted

the settlement and no longer wished to continue with the case.

REASONS FOR THE DECISION

The Commission recalls that the applicant has accepted the

proposal of the respondent Government to settle the case and that she

no longer wishes to pursue the case.

In these circumstances the Commission finds that the applicant

does not intend to pursue her 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 Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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WERBICKAS v. THE UNITED KINGDOM

WERBICKAS v. THE UNITED KINGDOM

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