Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16184/90

by Carolyn-Jean LAVENDER

against the United Kingdom

The European Commission of Human Rights sitting in private

on 7 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 August 1989

by Carolyn-Jean LAVENDER against the United Kingdom and registered

on 21 February 1990 under file No. 16184/90;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they appear from the applicant's

submissions, may be summarised as follows.

The applicant is a British citizen, born in 1967 and resident

in Bristol. She is represented before the Commission by Mr. Edwin

Lavender, her father, who introduced this application on her behalf.

The applicant has four children, S. (a son), A. (a daughter),

K. (a daughter) and M. (a son).

The applicant gave birth to her daughter A. on 6 September

1985. On 17 December 1985, A. was subject to a Place of Safety Order

following her admittance to hospital with bruises. The applicant's

explanation for the injury was that her eldest son S. had fallen on

top of A. The local authority (the County of Avon) applied for a care

order which was granted in May 1986 after a hearing at which the

applicant was represented by solicitor and counsel. Medical reports

stated that A. had a "characteristic frozen watchfulness" demeanour in

that she seemed afraid and unresponsive to normal social overtures.

Her weight was also below the normal range.

On 16 April 1987, A. was returned home to the applicant on

trial. After 6-7 weeks however, A. was taken back into care when a

social worker noticed further bruising on A.'s back, although the

applicant contended that this could only have happened as a result of

S. throwing toys into A.'s cot.

In November 1987, the applicant states that her daughter K.

fell and sustained bruising on her face. Her explanation was not

believed by the Social Services Department of the local authority who

removed K. under a Place of Safety Order. The applicant was charged

with causing actual bodily harm.

In January 1988, the application of the local authority for a

care order in respect of K. was heard before the Juvenile Court, which

however returned K. to the applicant's care.

From this period onwards, the applicant stated that if any of

her children had a bruise or scratch, they would be taken to a doctor,

stripped and examined.

On 18 March 1988, the applicant was informed that the local

authority had decided to place A. for adoption.

In November 1988, the applicant was tried in respect of the

injury to K. and was found guilty of a charge of neglect. She was put

on probation for two years. The judge stated that the applicant was

not taking enough steps to stop her children sustaining knocks and

bruises. The local authority made the applicant's three children, S.,

K. and M., wards of court in November 1988.

On 9 February 1989, the applicant's application to revoke the

care order in respect of A. was heard before the magistrates court.

She was represented by solicitor and counsel. The court refused the

application finding that since A. had been with her foster-parents for

three years and lost all memory of the applicant, it was in her best

interests for A. to remain with her foster-parents.

The applicant states that following her period in care K. had

become a temperamental child throwing serious tantrums which meant

that she was a danger to herself and her latest baby M. The applicant

was obliged to place K. in voluntary care of the local authority in

March 1989, where she has remained since. While the applicant states

that she wants K. to return home, she alleges that she has been told

by social workers not to insist since otherwise she might lose S.

and M.

On 10 August 1986, the applicant's father had introduced an

application before the Commission on behalf of the applicant. The

application was registered on 7 March 1989 under No. 14745/89. The

application was struck from the Commission's list of cases on 13 July

1989 following a letter from the applicant's father seeking to

withdraw the application.

COMPLAINTS

The applicant complains that there has been a lack of respect

for her family and private life contrary to Article 8 of the

Convention as a result of the placing in care of A. and depriving her

of custody. The applicant complains of the constant suspicion which

she lives under and the policy of the local authority which resulted

in repeated medical examination of her children. The applicant also

complains that K. remains in care.

THE LAW

1. The applicant has complained of being deprived of the custody

of A. She also complains of constant scrutiny by the local authority

and that K. remains in care.

The Commission recalls that the applicant introduced a

previous application No. 14745/89 which was struck from the list. It

notes that while the previous application concerned largely the same

facts and complaints, the present application has added some further

material and fresh allegations. The Commission has treated the

applicant's complaints as a new application rather that restoring the

previous application to the list. It has also decided not to go into

the question of compliance with the six months' time limit imposed by

Article 26 (Art. 26) of the Convention for the reasons given below.

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 finds that, in accordance with its established

case-law, the decision to take A. into care and terminate the

applicant's custody constituted an interference with the applicant's

right to respect for her family life protected by Article 8 para. 1

(Art. 8-1) of the Convention (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

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

namely whether it is "in accordance with the 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 A. was taken into care following

injuries sustained. The magistrates court refused to revoke the care

order on the ground that it was in the best interests of A. to remain

with her foster-parents. The Commission finds that these decisions

were taken in accordance with the relevant child care legislation and

made for the aim of protecting A.'s health and rights. Consequently,

the decisions were "in accordance with the law" and pursued a

legitimate aim under Article 8 para. 2 (Art. 8-2), i.e. "the

protection of health or morals" and "the protection of the rights and

freedoms of others".

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, who 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 placing of A. in care and

the refusal of custody to the applicant were necessary in the interest

of A., 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 recalls that the decision to place A. in care

was taken following injury and that A. suffered further injury when

allowed home on trial. In deciding not to revoke the care order, the

Court also had regard to the fact that A. had been placed with her

foster-parents for three years and lost all memory of the applicant.

The Court concluded that it was therefore in her best interests to

remain with her foster-parents.

The Commission also recalls that the applicant was present

during the proceedings 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

interest (see e.g. Eur. Court H.R., W. v. the United Kingdom

judgment, loc. cit., 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 a

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

protection of the rights of A. Consequently, this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. As regards K., who is now also in the care of the local

authority as well as a ward of Court, the Commission notes that the

applicant herself placed K. in voluntary care.

It appears that the applicant has not requested the return of

K. from the local authority as she is entitled to do in respect of a

child who is in voluntary care nor brought her complaint before the

High Court which has jurisdiction in matters concerning wards of

court. It therefore appears that the applicant has not complied with

the condition as to the exhaustion of domestic remedies imposed by

Article 26 (Art. 26) of the Convention.

This part of the application must therefore be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

3. In so far as the applicant has also complained of the constant

scrutiny of her family by the local authority, the Commission notes

that there has been a history of incidents involving injury to the

applicant's children and that the local authority is under a statutory

duty to have regard to the welfare of children within its area. On

examination of the facts as submitted by the applicant, the Commission

finds that there is no indication of a violation of Article 8 (Art. 8)

of the Convention in this respect.

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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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LAVENDER v. the UNITED KINGDOM

LAVENDER v. the UNITED KINGDOM

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