Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17071/90

by W.

against the United Kingdom

The European Commission of Human Rights sitting in private

on 7 January 1991, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 8 August 1990

by W. against the United Kingdom and registered on 24 August 1990

under file No. 17071/90;

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 resident in S. H.

She is represented by Mr. S.G. Lesson, a solicitor practising in South

Harrow. The facts as submitted by the applicant may be summarised as

follows.

The applicant is mother of three children, J. born on

25 November 1979, D. born on 18 March 1981 and R. born on

14 May 1983. Following separation and divorce from her husband, the

applicant had custody of the children. The applicant experienced

problems with her ex-husband and was granted a non-molestation order

and exclusion order against him by the Court. Her ex-husband was also

committed to prison for 28 days for breach of these orders. The

applicant's ex-husband continued to enjoy access visits in respect of

J. and D.

On 31 May 1986, during an access visit, the applicant's

ex-husband took J. and D. to hospital alleging that they had been hit

by the applicant. The same day J. and D. were made the subject

of a Place of Safety Order by the local authority (London Borough of

Harrow) as a result of bruising which the applicant said could only have

been caused as a result of the children fighting together and falling

over. The consultant paediatrician took the view that J.'s bruising had

been inflicted in a non-accidental manner: he was uncertain about the

injuries to D.

On 4 June 1986, the local authority held a case conference.

The applicant had asked to attend but had been refused permission.

She was allowed to make written submissions. Following the case

conference, the applicant's children were returned home, but all three

children's names were placed on the Child Abuse Register, a record which

is available to certain public bodies. The record of J. read:

"3. Nature of injury and by whom inflicted, whether child

abuse has been substantiated: bruise on back and forehead,

graze on side of nose, near eye (black eye), inflicted

by mother. Child abuse substantiated."

The applicant considered that there had been a breach of

natural justice since she had not been present at the case conference

nor been able to refute any allegations made against her at that

conference in respect of both the incidents in question and previous

history of the family. For example, it was mentioned at the

conference that J. had previously been on the Child Abuse Register, a

fact of which the applicant was ignorant and other criticisms had been

made concerning her care of her children. She instituted proceedings

for judicial review in seeking to quash the decision to place her

children's names on the register.

Leave was granted on 2 October 1986 by the High Court. The

application for judicial review was heard before the High Court on

25 November 1988. The applicant was represented by counsel and

solicitor. Following the hearing, the judge held that the failure to

invite the applicant to attend the case conference could not be

considered unfair or unreasonable in the circumstances of this case,

when the local authority had before it the applicant's account of the

bruising given to the consultant paediatrician and her written

submissions. He therefore dismissed the application.

The applicant appealed to the Court of Appeal. Following a

hearing on 28 July 1989, at which the applicant was represented by

counsel, the Court of Appeal held that neither the procedure followed

nor the result offended the requisite principles of fairness. It

emphasised that entry on a register constitutes neither a finding of

fact, even less a finding of guilt and dismissed the appeal. Leave to

appeal to the House of Lords was refused on 14 February 1990.

RELEVANT DOMESTIC LAW AND PRACTICE

Both case conferences and abuse registers are non-statutory

procedures utilised by local authorities in fulfilling their statutory

responsibilities to promote the welfare of children (see e.g. Section

18 of the Child Care Act 1980) and to make enquiries where

information is received which suggests that there are grounds for

bringing care proceedings (Section 2 of the Children and Young

Persons Act 1969).

In a draft guide published by the Department of Health and

Social Security to advise local authorities (Child Abuse: Working

Together. A guide to arrangements for interagency co-operation for the

protection of children) case conferences are described as follows:

"2.16 Case conferences are an essential feature of interagency

co-operation. They provide a forum for the exchange of

information between professionals involved with the child

and family (see paragraphs 2.23 to 2.28) and allow for

interagency, multidisciplinary discussion of:

(a) allegations or suspicions of abuse;

(b) the outcome of investigation;

(c) assessments for planning;

(d) an action plan for protecting the child and

helping the family;

and

(e) reviews of the plan.

...

2.17 For reasons of both efficiency and confidentiality the

number of people involved in a case conference should be

limited to those with a need to know and a contribution to

make to the tasks involved.

...

2.18 A case conference is an inter-professional meeting but

on occasion it may wish to invite a non-professional who is

working with the child or family; for example, foster

parents or volunteer workers. In this event, the key worker

or the professional most closely involved with the

non-professional should undertake to brief him or her

beforehand about the purpose of the conference, the duty of

confidentiality and the primacy of the child's interests

over that of the parents if a conflict of interest arises.

...

2.24 From the outset, it is important that parents or carers

are kept fully informed about the basis of an investigation or

intervention. They need to know the reasons for

professional concern, the statutory powers, duties and roles

of agencies involved and the changes in the family's

situation which the agencies consider necessary or desirable

in the interests of the child. Openness and honesty and the

ability of professional staff to confront parents with

reality are an essential basis on which to build a

foundation of understanding that may lead to change.

2.25 The key worker and other professionals, individually and

jointly, will need to decide how best to involve parents in

assessment, planning and review. It may be helpful for the

key worker and one or more members of the core group to meet

as a group with parents from time to time in the course of

work with the family. Such meetings, however, should be

clearly distinguished from formal interagency case

conferences. It is not appropriate for parents to attend

the latter which are professional meetings focused on the

details of interagency co-operation to protect the child and

plan for the future. It is important, however, that case

conferences, wherever possible, are given clear and

up-to-date accounts of the views and wishes of parents and

other close relatives. ..."

COMPLAINTS

The applicants complains of a breach of Article 6 para. 1 of

the Convention. She submits that she was deprived of a fair hearing

since she was not informed in advance of the allegations to be made in

respect of her care of her children, in particular, the alleged

assault on 31 May 1986 or to be present at the case conference.

The applicant also complains that the above matters

constituted a violation of her right to respect for her family life

guaranteed under Article 8 of the Convention.

THE LAW

1. The applicant complains that she did not receive a fair

hearing at a case conference held by the local authority since she was

not informed in advance of the allegations to be made or allowed to be

present. She invokes Article 6 para. 1 (Art. 6-1) of the Convention,

which, in its first sentence, provides:

"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 notes that the above provision of the

Convention guarantees to everyone a fair hearing in the determination

of his civil rights and obligations or of a criminal charge against

him. The Commission must therefore consider firstly, 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 and secondly, whether there was a criminal charge.

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.,

W v. the United Kingdom judgment of 8 July 1987, Series A No. 121, p.

32, 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 that there is no right in English law for

parents to attend case conferences. The Commission also notes that

the case conference in question reached the decision to place the

applicant's children on a Child Abuse Register, which had no effect on

the applicant's continuing custody of the children. The Commission

accordingly finds that the case conference did not involve the

determination of any of the applicant's civil rights within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission also recalls that the applicant was not charged

with assault or faced with any criminal proceedings in respect of the

incident. It notes the finding of the Court of Appeal, that the

decision by the case conference to place the children's names on the

register did not constitute a finding of guilt. The Commission

therefore finds that no criminal charge was in issue in the case.

It follows that this part of the application must be dismissed

as incompatible ratione materiae with the provisions of the Convention

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

2. The applicant has also complained that the refusal to allow

her to attend the case conference constituted a violation of her right

to respect for her family life within the meaning of Article 8 (Art. 8)

of the Convention.

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."

The Commission has examined whether the refusal to allow the

applicant to attend the conference constituted in itself an

interference with the applicant's rights under the above provision.

The Commission recalls that the case conference discussed the bruising

found on the applicant's children and any further action to be taken

by the local authority. The decision taken was to place the

children's names on the Child Abuse Register. No decision was taken

adversely affecting the applicant's custody or access to her children.

Even assuming, however, that the refusal to allow the applicant to

attend constituted an interference under Article 8 para. 1 (Art. 8-1)

of the Convention, the Commission finds that it was justified under

the second paragraph (Art. 8-2) as being in accordance with law and as

being necessary in a democratic society for the purpose of

safeguarding the health and rights of others, namely, J., D. and R.

The Commission notes the fact that the applicant was able in any event

to present written submissions. The Commission has had regard also to

the fact that the applicant has also not shown that she suffered any

prejudice from the inclusion of the children's names on the register

and to the finding of the Court of Appeal that the inclusion of names

on the register constituted neither a finding of fact nor of guilt.

It follows that this complaint is manifestly ill-founded

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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W. v. the UNITED KINGDOM

W. v. the UNITED KINGDOM

LEXI