C. v. THE UNITED KINGDOM
Doc ref: 14247/88 • ECHR ID: 001-1313
Document date: July 3, 1992
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AS TO THE ADMISSIBILITY OF
Application No. 14247/88
by C.
against the United Kingdom
The European Commission of Human Rights sitting in private on
3 July 1992, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
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 10 June 1988 by
C. against the United Kingdom and registered on 26 September 1988 under
file No. 14247/88 ;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 11 August 1989 and the observations in reply submitted
by the applicant on 9 December 1991;
Having regard to the parties' submissions at the hearing on
3 July 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1924 and resident in
Ipswich. He is a chiropodist. At present he is unemployed. He is
represented before the Commission by Françoise Hampson, a law lecturer
at Essex University.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant's daughter S. was born on 5 March 1970. On 28 June
1979, the Hereford and Worcester County Council (the "Council")
successfully applied for a care order in respect of S., who had been
described as an "elective mute", on the ground that the applicant was
not allowing her to receive the treatment and educational assessment
considered necessary by the Council. One major point of disagreement
between the applicant and the Council was the applicant's desire for
S. to receive mainstream schooling and the Council's belief that S.
required special schooling.
Following the care order, S. was placed as a week-day boarder in
a residential special school. On 10 January 1983, S. was admitted as
a full time boarder to Ryes school, a special residential school. In
April 1983 the applicant was separated from his wife, who retained
custody of the other two children of the family.
The applicant was initially allowed weekly access to S. at Ryes
school. In view of concern at the effect of these visits, the Social
Services of Essex County Council (the "local authority"), who had taken
over responsibility for supervision of the care order, decided, at a
statutory review on 24 April 1985 to reduce the applicant's access to
one visit per month, pending advice from a consultant child
psychiatrist.
The applicant met with representatives of the Social Services
Department in June 1985 but their differences remained unresolved. By
letter dated 31 July 1985, the local authority reported to the
consultant psychoanalyst that the applicant did not accept invitations
to S.'s lessons or usual activities and that communication with him was
made difficult as he refused to disclose his home address and insisted
that they negotiate through his solicitor.
The applicant saw S. in July 1985. The applicant was invited to
see the consultant with S. on 21 January 1986 for a psychiatric
assessment to be made on the subject of continued access but the
applicant declined the invitation. No further access visit took place
until May 1986 when the applicant wrote to the school informing them
of his intention to visit the following Sunday. When the applicant
arrived, however, he was told that S. was not available.
By letter dated 10 August 1987 to the local authority, the
applicant's solicitors requested access to S. for the applicant. On
20 November 1987, the applicant was served with a Notice of Termination
of Access Order and the applicant applied to the Court pursuant to
Section 12 B of the Child Care Act 1980 to review this decision.
A guardian ad litem was appointed to represent S. In her report
dated 12 February 1988, with supplement dated 23 February 1988, the
guardian ad litem, Mrs. J., reported that the applicant had not seen
S. for 2 1/2 years and during the preceding 2 1/2 years there had been a
deterioration in communication between the applicant and the school and
an increasing concern by the school with what the school regarded as
the applicant's inappropriate behaviour with S. and S.'s marked
negative reaction to his visits. She commented however that there were
times that S. appeared to enjoy seeing her father and that it was
difficult to establish a connection between the applicant's visits and
disturbances in S.'s behaviour. She concluded that she could not
recommend that it was in S.'s interests to see her father. The Court
also had before it a report from the headmaster of the special school
where S was resident, containing the opinion that access should not
take place without an independent psychiatric assessment of the effects
of such access.
On 26 February 1988, the Colchester Juvenile Court refused the
applicant access to S.
The care order in force in relation to S. expired on 5 March 1988
when she reached 18 years of age. By letter dated 25 May 1988 the
applicant approached the local authority concerning access. By letter
dated 15 June 1988, the local authority agreed that S. was no longer
in their care and that the decision of the court refusing access was
no longer in force. The local authority stated however that the Social
Services Department considered that it was not in S.'s interests for
the applicant to have access and that they were not prepared to make
any arrangements for access or to allow the applicant on their premises
for the purpose of seeing S.
S. was transferred to a home for mentally handicapped young
adults run by the local authority in July 1988. In October 1988, the
staff of the home reviewed the question of access by the applicant to
S. They took into account the reports before the Juvenile Court and
S.'s continued extreme negative responses to questions about the
applicant. They concluded that any sudden trauma might cause a
regression and access should not be recommended. They proposed
reviewing access in a year's time.
By letter dated 24 January 1989, the local authority replied to
the applicant's solicitors' letter enquiring as to the legality of
their actions that "...it has no right to deny access as such but
conversely is under on obligation to make any arrangements for access."
It recalled that S.'s previous school and the court has agreed with its
view that access was not in S.'s interests. It also commented that the
question of access did not revolve around one person's interests and
that S. should have the right to decide whether she wanted to see the
applicant. Since the appplicant had mentioned his intention to
institute legal proceedings it suggested that steps should be taken for
S. to be represented by the Official Solicitor.
On 14 July 1989, the local authority wrote to the applicant
informing him that S. had settled down well and inviting him to come
to discuss S.'s situation further. The applicant apparently did not
respond to the invitation.
By a letter dated 20 November 1989, the applicant's solicitors
informed the local authority that the applicant wished unsupervised
access to S. away from the home.
By a letter dated 3 January 1990, the local authority informed
the applicant that if access were agreed it would need to be a
carefully planned programme of re-introduction. It considered that
unsupervised access off their premises would not be in her interests.
It informed the applicant that it was intended to try to ascertain the
views of S. if possible on the subject and repeated its request for the
applicant to come to have a talk with the Social Services Department.
By a letter dated 22 January 1990, the applicant's solicitors
disagreed with the proposal to obtain a report on the wishes of S.
which they did not consider necessary and repeated the applicant's
request for unsupervised access off the premises.
By a letter dated 1 February 1990, the local authority maintained
its view that S. as an adult had a right to express a choice. It
informed the applicant that if S. wished to see him it would facilitate
access though it strongly advised against unsupervised access away from
the home. If S. expressed no preference it intended to commence a
planned programme of re-introduction of access but if S. expressed a
with not to see the applicant, no steps would be taken.
In a report dated 7 July 1990 by the previous guardian ad litem,
it was concluded after ten meetings with S. exploring her wishes
through, inter alia, photographs and drawings that S. associated her
father with unhappy experiences and did not wish to see him.
"... During the course of the ten meetings it became
increasingly clear that S. was trying to tell us about some
past unhappy experiences which she associated with her
father...
It does not necessarily follow that if a young person has
unhappy memories of a parent that he or she does not wish
to see that parent. I did not therefore regard it as
conclusive that because S. was telling us about some past
trauma, she would totally refuse to entertain the idea of
seeing her father. The focus of the meetings was therefore
specifically directed towards parental visits being a
normal and enjoyable event. Care was taken to be positive
in asking S. if she would like to see her father. She was
reminded that he loved her and sent cards and presents. It
was made clear that he wanted to see her. At no time were
any negative comments made to S. about her father. In my
opinion, her reaction was very clear. She firmly said 'no'
on two occasions to the suggestion of seeing her father and
on another occasion responded by bringing up her bad
experiences. When she said 'no' it was not a mechanical
response but followed by appropriate expression of quiet
and sadness.
S.'s clear message in these meeitngs is that she does not
wish to see her father. It is evident that despite her
mental impairment, she is capable of indicating her wishes.
Nothing has come to my notice to suggest that she has in
any way been influenced in her reactions. I am satisfied
that a fair, unbiased and comprehensive attempt has been
made to ascertain her wishes and feelings. I do not
consider that there are grounds for the Local Authority to
promote a reintroduction between S. and her father, given
her unequivocal response. ..."
RELEVANT DOMESTIC LAW AND PRACTICE
Local authorities are required by virtue of paragraphs 1 (a) and
4 of the Appendix to circular LAC 19/74 to make residential
accommodation available for persons who are or have been suffering from
mental disorder. The circular was issued under Section 12 of the
Health Services and Public Health Act 1968, which was replaced by
Schedule 8 to the National Health Service Act 1977. Under paragraph
2 of Schedule 8 the local social services authority may, with the
Secretary of State's approval, and to such extent that he may direct,
shall, make arrangements for the purposes of prevention of illness and
for the care of persons suffering from illness. "Illness" includes
mental disorder. Equivalent provisions require local authorities to
provide residential accommodation for persons in need of care and
attention which is not otherwise available to them by reason of age,
infirmity or any other circumstances as directed in paragraphs 3 (a)
and 4 of circular LAC 13/74 and Section 21 (1) of the National
Assistance Act 1948.
Under the common law, the proprietor of premises is entitled to
control access to and egress from those premises. There is no relevant
statutory provision requiring local authorities to allow their premises
to be used for the purposes of contact between residents and, as in
this case, their relatives. The Government have stated that as a
matter of practice, however, such contact between residents and their
relatives is encouraged unless this would not be in the residents'
interests.
As a public authority performing statutory and other duties, a
local authority may be challenged in judicial review proceedings if it
has acted unreasonably, for an improper purpose, with reference to
irrelevant considerations or in a procedurally unfair manner.
COMPLAINTS
The applicant complains of interference with his family life
contrary to Article 8 of the Convention in that he has been prevented
from seeing his daughter since her 18th birthday when the care order
expired. He submits that the refusal is not in accordance with law,
that it does not pursue a legitimate aim and that there are
insufficient procedural safeguards.
He further complains that he has no effective access to court to
challenge the decision of the local authority refusing access contrary
to Article 6 of the Convention. He also complains that he does not have
an effective remedy for his complaints as required by Article 13 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 June 1988 and registered on
26 September 1988. The Commission decided on 13 April 1989 to bring
the application to the notice of the respondent Government and invite
them to submit written observations on the admissibility and merits of
the applicant's complaints. The Government submitted observations on
11 August 1989.
On 8 September 1989, the Commission granted legal aid to the
applicant.
By letter dated 22 September 1989 the applicant stated, in light
of the Government's observations on domestic remedies, that he withdrew
his application since he intended to apply for judicial review in
respect of the local authority's decision to refuse him access to his
daughter. He also expressed the intention of renewing his application
if necessary, following exhaustion of local remedies. In these
circumstances, the Commission decided on 4 December 1989 to strike the
application off its list of cases. On 24 June 1990 the applicant was
advised by Counsel that he would not be granted leave to apply for
judicial review. On 27 June 1990 the applicant requested that his case
be re-opened. On 12 October 1991, the Commission restored the case to
the list.
The applicant submitted observations in reply to those of the
Government on 9 December 1991.
On 31 March 1992, the Commission decided to hold an oral hearing.
On 7 May 1992, the Government submitted further observations.
At the hearing o 3 July 1992, the parties were represented as
follows:
For the Government:
Mrs. D. Brookes Agent
Mr. D. Pannick Q.C.
Mr. R. Aitken Adviser
Mr. L. Took Adviser
For the applicant:
Ms. F. Hampson Senior Law Lecturer, University of Essex
The applicant himself was present.
THE LAW
Exhaustion of domestic remedies
The applicant makes a number of complaints concerning the refusal
of the local authority to allow him access to his daughter who is a
resident in one of their homes. He invokes Articles 6 and 13
(Art. 6, 13) of the Convention.
The Government submit that the applicant has failed to exhaust
domestic remedies as required by Article 26 (Art. 26) of the Convention
since he has not instituted judicial review proceedings. The applicant
submits that such proceedings would not provide an effective remedy
within the meaning of that provision.
The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of such remedies which relate
to the breaches of the Convention alleged and at the same time can
provide effective and sufficient redress. An applicant does not need
to exercise remedies which, although theoretically of a nature to
constitute remedies, do not in reality offer any chance of redressing
the alleged breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78).
It is furthermore established that the burden of proving the
existence of available and sufficient domestic remedies lies upon the
State invoking the rule (cf. Eur. Court. H.R., Deweer judgment of
27 February 1980, Series A no. 35, p. 15, para. 26, and No. 9013/80,
Dec. 11.12.82, D.R. 30 p. 96, at p. 102).
The Commission recalls that judicial review proceedings provide
only a limited means of challenging a decision. They may be used to
seek a remedy against the decision of a public authority on the grounds
of illegality, irrationality or procedural impropriety but cannot
impugn the merits of a decision. The opinion of the applicant's counsel
dated 24 June 1990 indicated that the applicant had no prospect of
success in judicial review proceedings.
In these circumstances, the Commission finds that the application
cannot be declared inadmissible for non-exhaustion of domestic
remedies.
Article 8 (Art. 8) of the Convention
The applicant complains that the local authority have prevented
him from having access to his daughter S., who is resident in a home
run by the local authority. He 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 submits that his relationship as father to S. falls
within the scope of the above provision. He contends that the refusal
to facilitate access constitutes an interference with his right to
respect for family life, which has no basis in law. He also complains
that there are insufficient safeguards in the decision-making procedure
to protect his rights.
The Government submit that there has been no interference
contrary to Article 8 (Art. 8) of the Convention since S. has no wish
to see the applicant and Article 8 (Art. 8) does not guarantee the
applicant a right of access to an adult member of his family who does
not wish to see him.
The Commission recalls first of all that the existence or not of
a family life falling within the scope of Article 8 (Art. 8) will
depend on a number of factors and on the circumstances of each
particular case (see e.g. No. 12402/86, Dec. 9.3.88, D.R. 55 p. 224).
In the present case, the applicant is the father of S. who is mentally
handicapped and who has lived since the age of nine in public care.
The applicant enjoyed access to S. until 1985 and since then has
continued to claim the right of access. In these circumstances, the
Commission finds that the relationship between the applicant and S.
falls within the scope of the concept of "family life".
Where a parent is denied access to a minor child taken into
public care the Commission recalls that this would constitute in most
cases an interference with the parent's right to respect of family life
as protected by Article 8 para. 1 (Art. 8-1) of the Convention (see eg.
Eur. Court H.R., W v the United Kingdom judgment of 8 July 1987, Series
A No. 121). This however is not the case in respect of a refusal of
access to a child, albeit suffering a mental handicap, who has reached
the age of majority. Whether the restriction on access amounts to an
interference or lack of respect for the right guaranteed in the first
paragraph of Article 8 (Art. 8) will depend on the circumstances of the
case. Relevant factors include the nature of the past relationship
between the parent and the handicapped adult child, the capacity of the
child to express its views and its preference if stated.
The Commission recalls in the present case that the applicant's
access to S. was terminated when she was still a minor and that this
decision was upheld as being in the child's best interests by the
juvenile court on 26 February 1988. Shortly afterwards S. reached the
age of 18 and the court order in force expired. The Commission notes
that while the local authority has since then refused to facilitate
access to S., it did not arbitrarily rule out the possibility of
access. The correspondence between the applicant and the local
authority indicates that the applicant was requiring unsupervised
access outside the premises of the local authority, to which the local
authority could not agree and that he refused to discuss the situation
with the Social Services Department in person.
Further, the local authority took the view, which the Commission
finds to be proper and reasonable, that the wishes of S. should be
taken into consideration and at their request, the previous guardian
ad litem supervised a series of ten sessions with a view to
establishing whether S. was capable of communicating her wishes in
respect of the applicant and if so, her preference. The conclusion was
that S. clearly did not wish to see her father. The applicant has
criticised this procedure. The Commission notes however that no
complaint has been made as to bias on the part of Mrs. J. The
Commission sees no weight in the allegation that there was an
appearance of bias on the ground that Mrs. J. was involved in the
earlier court proceedings. Her role at that stage was as an independent
expert and there is no complaint or indication in the report that she
showed herself not to be impartial. The applicant has also complained
of the use of dolls in the sessions supervised by Mrs J. whatever
criticism might be made od their use as a means of obtaining
information, the Commission sees no indication that they invalidate the
findings as to S.'s wishes.
In light of the above, the Commission considers that the local
authority have acted reasonably and fairly in weighing up the interests
of the applicant in seeing S. and the interests of S. The Commission
has had regard also to the fact that the applicant, for whatever
reason, has tended to show himself uncooperative with the local
authority and to the past history of the relationship between the
applicant and S. The Commission concludes that the conduct of the local
authority does not disclose any lack of respect for the applicant's
family life within the meaning of Article 8 (Art. 8) of the Convention.
It follows that the complaint must be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
Article 6 (Art. 6) of the Convention
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he has no access to a court to determine the dispute
as to access to S.
Article 6 para. 1 (Art. 6-1) provides in its first sentence:
"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."
The Commission recalls first of all that the case-law of the
Commission and the Court has established that Article 6 para. 1
(Art. 6-1) guarantees to everyone an effective right of access to the
courts for the determination of their civil rights and obligations.
The Commission must therefore consider whether a right was at all
involved in the present case and, if so, whether that right was a civil
right within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
The Commission notes that, generally speaking, Article 6 para.
1 (Art. 6-1) of the Convention is not aimed at creating new substantive
rights which have no legal basis in the State concerned but at
providing procedural protection to rights which are recognised in
domestic law. It is not however decisive whether a particular benefit
or expectation is characterised under the domestic legal system as a
right since the term "right" must be given an autonomous interpretation
under Article 6 para. 1 (Art. 6-1) of the Convention (e.g. Eur. Court
H.R., König judgment of 28 June 1986, Series A No. 27, p. 29, para.
87). In W v. the United Kingdom (Eur. Court H.R., judgment of 8 July
1987, Series A No. 121, p. 32 et seq., para. 73) the Court stated:
"It is true that Article 6 para. 1 (Art. 6-1) extends only to
'contestations' (disputes) over (civil) 'rights and obligations'
which can be said, at least on arguable grounds, to be recognised
under domestic law; it does not in itself guarantee any
particular content for (civil) 'rights and obligations' in the
substantive law of the Contracting States (see, amongst other
authorities, the Lithgow and Others judgment of 8 July 1986,
Series A no. 102, p. 70, para. 192)."
The Commission notes in the present case that there is no right
as such in English law for parents to require that they be given access
to their adult offspring. The availability of judicial review to
challenge, in certain limited circumstances, the decision of a local
authority cannot be taken as indicating the existence of a substantive
right of access capable of falling within the scope of the concept of
"civil rights".
In these circumstances, the Commission finds that the applicant
cannot be said to have, on arguable grounds, a claim to a right of
access under domestic law.
It follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 6-1) of the Convention.
Article 13 (Art. 13) of the Convention
The applicant further submits that he does not have an effective
remedy in respect of his complaints. He invokes Article 13 (Art. 13)
of the Convention which provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The case-law of the Commission establishes, however, that Article
13 (Art. 13) does not require a remedy in domestic law for all claims
alleging a violation of the law. The grievance must be an arguable one
in terms of the Convention (Eur. Court H.R., Boyle and Rice judgment
of 27 April 1988, Series A no. 131, p. 23, para. 52). In light of the
conclusions that the applicant's complaints under Articles 6 and 8
(Art. 6, 8) of the Convention are incompatible ratione materiae and
manifestly ill-founded, the Commission finds that the applicant does
not have an arguable claim of a breach of these provisions for the
purposes of a remedy under Article 13 (Art. 13) of the Convention.
This part of the application must therefore be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NORGAARD)