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AS TO THE ADMISSIBILITY OF

Application No. 19527/92

by M.C. against the United Kingdom

The European Commission of Human Rights sitting in private on

15 May 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. 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 13 July 1991 by

M.C. against the United Kingdom and registered on 11 February 1992

under file No. 19527/92;

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 1944 and resident in

Blackburn. She is represented before the Commission by Mr. Turner, a

solicitor practising in Blackburn. The facts as submitted by the

applicant may be summarised as follows.

On 5 April 1980 the applicant gave birth to a son C.

The applicant's husband left the matrimonial home on or about

1986. On 2 February 1989 the applicant went to pick up her son from

school. She was called into the headmaster's office and told that her

son had been taken into care, but no reasons were given. In the course

of the evening, a protection order was served on the applicant by two

officers of the NSPCC (National Society for the Prevention of Cruelty

to Children).

On 3 February 1989 the applicant was taken to Blackburn police

station for questioning when, for the first time, it became clear that

her son had been removed because allegations of sexual abuse were being

made against her.

On 6 February 1989 the applicant was told to attend the local

Magistrates Court on 9 February 1989, when an Interim Order was made

for 28 days, with the final hearing fixed for April. On 26 April 1989

the magistrates found the allegations of sexual abuse to have been made

out, and a Care Order was made. The applicant states that her lawyer

told her that no appeal was possible in respect of the Care Order. It

subsequently transpired that an appeal had been possible since

31 August 1988, when the Children and Young Persons Act 1969 was

amended to give an appeal to the parent of a child taken into care.

Criminal proceedings were subsequently begun, alleging gross

indecency. These proceedings were discontinued when the Crown

Prosecution Service gave notice on 22 May 1989 that they did not intend

to proceed with the charges.

The applicant regarded the decision to discontinue the charges

as a vindication of her denial of any sexual abuse.

The applicant only saw her son three times after he was taken

into care. The Social Services Department decided to terminate access

because the applicant was not co-operating. In particular the

Department concluded that until the applicant accepted that there had

been abuse of a sexual character, it could not help the applicant to

be rehabilitated with her son.

On 6 June 1989 the applicant introduced an application before the

Commission, alleging, inter alia, that her son had been taken into care

contrary to Article 8 of the Convention. By decision dated

13 December 1989, the Commission declared this application, registered

under No, 15350/89, inadmissible. The applicant's complaints under

Article 8 of the Convention were rejected on the ground that since she

had not appealed against or applied for discharge of the care order and

also had not appealed against the termination of access she had failed

to exhaust domestic remedies as required by Article 26 of the

Convention.

The applicant withdrew her appeal against the termination of

access before the Juvenile Court on 24 April 1990.

The local authority decided to place C. for adoption and applied

to the County Court for an order freeing him for adoption.

On 5 July 1991 the County Court judge made the order pursuant to

the provisions of the Adoption Act 1976. In his judgment, the judge

criticised the "blinkered" approach taken by the authorities and the

shortcomings in the procedure adopted by the Social Services. He

stated that he had grave reservations as to the correctness of the

original findings that sexual abuse had taken place and commented that,

unwittingly or otherwise, C. had been encouraged and sustained in the

belief that he had been sexually abused without the authorities making

any attempt to evaluate the applicant's credibility. The judge had

regard to the length of the time which had elapsed since the applicant

had last seen C., i.e. 22 months, and the expressed preference of C.

to be adopted. He held that C.'s greatest need was for stability and

the security of a permanent home, which adoption would provide. He

regretted that true or false, the allegations of sexual abuse remained

an insurmountable obstacle to C. resuming a natural and loving

relationship with the applicant. He concluded that adoption was in C.'s

best interests and dispensed with the applicant's consent.

COMPLAINTS

The applicant complains that her son has been taken into care and

freed for adoption contrary to Article 8 of the Convention.

THE LAW

The applicant complains of a violation of Article 8 (Art. 8) of

the Convention in respect of the placement of her son in care and the

decision freeing him for adoption.

Article 8 (Art. 8) of the Convention 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."

i. Insofar as the applicant complains that her son was placed in

care, the Commission recalls that this complaint was previously

considered in connection with the applicant's first application to the

Commission, No. 15350/89.

The Commission must therefore determine whether the present

application is substantially the same as the one which it already has

examined or whether this application contains relevant new information

within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the

Convention.

The Commission recalls that the applicant's complaints were

rejected for non-exhaustion of domestic remedies since she had not

appealed against the care order or applied for its discharge. Since

then, the applicant's son was freed for adoption in proceedings in

which the judge expressed criticism of the earlier proceedings and had

doubts concerning the findings of sexual abuse. However, the

Commission finds that this cannot constitute new and relevant

information within the meaning of Article 27 para. 1 (b) (Art. 27-1-b).

These proceedings do not affect the basis of the Commission's finding

of non-exhaustion and indeed indicates that there were substantial

grounds on which a care order could have been appealed or its discharge

sought.

The Commission accordingly finds that this complaint is

substantially the same as that in the previous application and in these

circumstances must be rejected as inadmissible under Article 27 para.

1 (b) (Art. 27-1-b) of the Convention.

ii. Insofar as the applicant complains of the freeing of her son for

adoption, the Commission recalls that this step was taken following its

previous decision in No. 15350/89 and consequently the Commission may

proceed to examine this aspect of the application.

The Commission finds that the decision to free C. for adoption

constitutes an interference with the applicant's right to respect for

her family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the

Convention. The Commission must therefore determine whether this

interference was justified under the terms of Article 8 para. 2

(Art. 8-2), i.e. whether it was in accordance with the law, pursued one

or more of the legitimate aims set out in paragraph 2 and whether it

was 'necessary in a democratic society' for any of those legitimate

aims.

The Commission recalls that C. was freed for adoption by the

County Court under the provisions of the Adoption Act 1976 and that the

County Court made the order as being necessary in C.'s interests. The

Commission accordingly finds that this decision was "in accordance with

the law" and for the legitimate aim of protecting C.'s health and well-

being.

The question remains whether the decision was "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.

When determining whether or not the freeing of C. for adoption

and terminating the applicant's access to him was necessary in his

interest, 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 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 in the

judgment of the County Court on 5 July 1991.

The Commission recalls that the County Court judge found that the

adoption was in the best interests of C. He had regard to C.'s wishes,

the length of time which had elapsed and the fact that, true or false,

the allegations of sexual abuse remained an unsurmountable obstacle to

C. resuming a relationship with the applicant.

The Commission finds that these reasons were "relevant" and

"sufficient" for the decisions in question.

The Commission also recalls that the applicant was present at the

hearing and was represented by solicitor and counsel. The applicant

therefore had the possibility of putting forward any views which in her

opinion would be decisive for the outcome of the case. With regard to

these facts, the Commission finds that the procedural requirements

implicit in Article 8 (Art. 8) were satisfied since the applicant was

involved in the decision-making process to a degree sufficient to

provide her with the requisite protection of her interests (see e.g.

Eur. Court H.R., W v. the United Kingdom judgment of 8 July 1987,

Series A no. 121, pp. 28-29, paras. 63-65).

The Commission therefore finds that, bearing in mind the margin

of appreciation accorded to the domestic authorities, the interference

in the present case was justified under the terms of Article 8 para.

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

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (C.A. NORGAARD)

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M.C. v. THE UNITED KINGDOM

M.C. v. THE UNITED KINGDOM

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