AS TO THE ADMISSIBILITY OF

Application No. 15993/90

by C.S., D.S., C.S. and A.S.

against the United Kingdom

        The European Commission of Human Rights sitting in private on

15 February 1990, the following members being present:

                MM.  C.A. NØRGAARD, President

                     E. BUSUTTIL

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     J. CAMPINOS

                Mrs. G.H. THUNE

                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 21 December

1989 by C.S., D.S., C.S. and A.S. against the United Kingdom and

registered on 4 January 1990 under file No. 15993/90;

        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 as they have been submitted by the applicants may be

summarised as follows.

        The applicants are British citizens living in Weymouth,

Dorset.  The first applicant is a civil servant, born on 25 December

1958.  The second applicant is the first applicant's wife and is a

chambermaid, born on 17 July 1960.  The third and fourth applicants

are children of the first and second applicants, born in 1982 and 1985.

        The applicants were married on 25 February 1978.  On 6 October

1978, they had their first child, A, a daughter.  Following the birth,

the second applicant suffered severe post-natal depression, and this

combined with difficulties in the applicants' marriage resulted in

social workers becoming involved with the family.

        One morning when A had been crying continuously, the second

applicant, after trying to comfort her, became frustrated and threw A

into a chair which she bounced out of and hit her head on the side of

the wall.  A was knocked unconscious and was taken to hospital where

she was found to have a fractured skull.  The paediatrician, Dr.  P.,

who examined A, was of the opinion that as a result she was paralysed

down one side and partially blind in one eye.

        Following this incident, A was taken into care by the local

county council who placed A with foster parents.  The second applicant

was prosecuted on a charge of grievous bodily harm.  She pleaded

guilty and was placed on probation for three years and obtained

psychiatric help.

        The applicants' relationship with each other improved and they

instituted proceedings in the Magistrates' Court to regain the care

and control of their daughter A.  At first instance, they failed and

appealed to the Crown Court where they succeeded.  Wardship

proceedings were then instituted in the High Court by the foster

parents and the county council.  The applicants failed in these

proceedings and care and control of A was awarded to the foster

parents.  Both before and after these proceedings the applicants were

allowed limited access to A.

        On 19 November 1982 the applicant had a second child, B, a son

(the third applicant).  B is thought to suffer from hereditary

epilepsy.

        B was originally on a child at risk register until July 1985

when he was removed from this register, as the applicants state that

they had shown themselves to be good parents.  When B was two years

old, the second applicant became pregnant again.

        On 27 August 1985, an incident occurred, which resulted in B

being taken to hospital with injuries.  The applicants stated that the

first applicant had taken B to the toilet.  B made his own way to the

top of the stairs where he was told to wait.  According to the

applicants B tried to make his own way down the stairs but fell.  He

was taken to the hospital and seen by Dr.  P who considered that the

injuries sustained by B were not consistent with a fall down stairs as

there were bruises on the back of his legs.  The applicants state that

these bruises were caused whilst B was being put into a push chair

during a temper tantrum.

        As a result of this incident involving B, the county council

obtained a place of safety order and a 28 day care order from the

Magistrates' Court.  The county council then initiated wardship

proceedings in the High Court.

        The applicants' third child, a son C (the fourth applicant),

was born on 21 October 1985.  The applicants made C a ward of court

as the county council were threatening to do this.  A hearing was

scheduled for December 1985 but was postponed until January 1986 due

to the number of people listed to give evidence on behalf of the

county council.

        On 22 January 1986, following a hearing, the judge found the

first applicant responsible for injurying B's frenulum under his top

lip.  While extremely sceptical as to the causes of the other

injuries, that is, a fractured collar bone and other bruises, the

judge was unable to conclude that they were non-accidental.  The

applicants had only one medical opinion to rely on at the hearing, as

they state their solicitors had failed to approach anyone else.  They

also were not given a copy of the medical report concerning B's

injuries.  The matter was adjourned by the judge until July 1986 to

allow for further reports to be made.  The judge advised the

applicants to obtain a good psychiatrist to show that they were

capable parents and the applicants were advised by their counsel that

they had a lot of work to do in order to sort matters out.  The

applicants state that as they were very upset they were unable to

grasp what was expected of them and relied upon their solicitors to

sort matters out.

        Following the hearing in January 1986, B remained with the

short-term foster parents and C was allowed to stay with the

applicants though under constant supervision.  The first and second

applicants also were allowed access to B.  The county council appealed

against the judge's decision in January 1986, and the appeal was

turned down in June 1986.

        The applicants state that prior to the July 1986 hearing they

did not have proper consultations with their solicitors in order to

decide what was needed.  They obtained for themselves a psychologist,

who turned out to be not sufficiently experienced in cases such as the

applicants'.  They also obtained medical evidence and attempted to

obtain evidence from a forensic scientist.

        The applicants state that, a week before the July hearing, the

first applicant was pressed by his solicitors and counsel into

admitting that he injured B and was told that if he did not admit

this, B would remain in care and C would be taken into care.  The

first applicant was very confused and accepted the legal advice he

received and admitted to injuring B although he states that this was

not true.

        Following a hearing in July 1986, the judge ordered on 28 July

1986 that A be released for adoption, and B and C be placed in

long-term foster care.  The applicants were to be allowed reasonable

access to B and C.  In his judgment, the judge found that C was being

"perfectly properly looked after" and that no criticism could be made

of the first and second applicants' management of him in their home.

The judge went on however:

        "My finding at Bristol was that I set myself the criminal

        burden of proof, and I was quite sure that the injury to

        mouth was caused by a severe blow.  It must have

        been a vicious one.  I was extremely cynical about other

        explanations.  In the end I felt that that blow was the

        clearest possible evidence of child abuse.  I made a number

        of comments on the other injuries which indicated that I

        found the explanation highly unsatisfactory, and if necessary

        reference can be made to my judgment of 22 January 1986,

        which is before me.

        Since that time, on the issue of injuries,

        applicant> has now at the last minute, a few days before

        coming in front of me, admitted that he did strike B.

        He only admits to a much less vicious blow than I think

        occurred.  He also admits to having treating B roughly

        when putting him into his pushchair, which was the

        alleged cause of the marks across his buttocks.  I must

        say that I do not think I have heard the whole truth about

        this matter.  The line across the buttocks, being a

        continuous line, seems to be one that is unlikely to have

        been suffered as a result of being pushed into a pushchair

        where the child is probably struggling, as I understand it,

        in a tantrum.  Thus I remain cynical in my approach to the

        remaining injuries, and I approach the matter now on the

        basis that those injuries occurred whilst B was in the

        care and control of his parents.

        I therefore have two incidents with different children

        where the children have suffered severe injuries.  In

        A's case with sad after effects and that, plus a number

        of other injuries, occurred whilst these children were

        in the care of their parents."

        The judge reviewed the psychiatric evidence concerning the

first and second applicants:

        "There are one or two factors in the individual tests

        which cause me some concern in assessing the future of

        these parents.  There were fifteen headings under which

        they were assessed and I only refer to five of them.

        Under 'Deferences' as a heading, 'conformism following

        instructions and expectations', the mother was marked

        as 'low'.  Under 'Automony', that is (quoted) she was

        marked as 'high'.  They were each marked as 'average'

        on 'Succorance', that is in receiving help and

        encouragement from others.  Father on 'Endurance',

        that is perseverence and persistence, was low.  On

        'Aggression', tendency to contradict and criticise

        and be angry, the mother was high and father was low.

        So that in three fields which do seem to me to be

        important mother was low in following instructions,

        high in avoidance of obligations, high in tendency to

        contradict and criticise and be angry.  Father was low

        in perseverence and persistence and low in aggression.

        It seems to me, therefore, that there are very considerable

        problems thrown up by that test in the characters of the

        parents which lead me to think that the future holds very

        considerable doubts.

        - to whom I am grateful for a most

        careful report - went on to indicate that if there was a

        huge input of social work therapy and intervention in this

        family he felt that the risk to B and C in the future ...

        to use his expression, 'the possibility of any damage

        occurring to either child would be minimised';  but he did

        require intensive supervision and regular therapy on various

        aspects.  He also emphasised that the therapy could not

        really expect to succeed unless the children were back

        with their parents and the logical step from there is

        that it would be necessary in order to seek to help the

        parents to put the children at some risk.  The whole

        process would take some time.  That time was uncertain

        but certainly it would depend upon motivation.  Motivation

        here is obviously an important factor because of the

        history of the matter.  It is stressed by the local

        authority that whilst the motivation is there the parents

        can conform and keep themselves under control, whereas

        when motivation no longer exists the risk not only arises

        but the damage takes place.

        C's position, it is commented, is really a repeat story.

        There has been, as I have said, constant and intense

        supervision.  Their case is really put in this way.  This

        was .  He pointed to the fact that

        this really was a replay of what had occurred between 1980

        and 1985.  He said this was not a real situation which now

        existed because of the intense supervision.  He said it was

        unnatural and it was really unusual in his experience.  He

        pointed out that the dangerous age for children, when they

        are most at risk to physical abuse, is when they become wilful,

        independent, and more mobile.  That A and B had been at a

        vulnerable age and that C had not reached, but in about a

        few months or years would reach, the dangerous age, and

        that the problems would exist, he felt, in the parents

        trying to deal with two children, in seeking to control

        B who was now growing even older they would have great

        problems amongst themselves.  He felt that he could not be

        confident and he had a deep feeling quite clearly, from

        watching, that something further might happen to one or

        other of these children if they remained with their parents.

        He undoubtedly had genuine fears about the matter.

        He has been involved in this case for a substantial

        period of time, knows everyone involved well, and one

        can only respect his frankness.  I must take that into

        account.

        The relationship between the parents has been one of the

        major factors running through the history of this matter.

        I was, therefore, yet again, as I did in Bristol, observing

        them and seeking to discover whether there was a real

        basis of secure understanding and mutual respect upon which

        one could build real hopes for the future.  It is perfectly

        understandable, and indeed I sympathise with their acute

        emotional distress, which occurs frequently and persistently.

        It is a factor, but only a factor.  But looking at the whole

        history, looking at the comments made through the evidence,

        and there has been a mass of affidavit evidence and other

        evidence to which I have not referred in detail, I am left

        in considerable doubt about the future stability of the

        relationship between the parents.  In the light of what has

        happened one would need to be doubtful since that the

        relationship had reached a stability on which one could

        build ..."

        The judge concluded:

        "... where does that review of the picture as it now presents

        itself leave me?  It leaves me with the greatest worries.

        I do not think I have heard the whole story from these

        parents.  It is a very sad case indeed.  I realise

        second applicant> was sterilised after the birth of C.

        I also saw in the evidence that at one stage

        applicant> had considered a vasectomy.  What do these two

        children need?  They need above all a plan for their future.

        They need a security from that plan and a consistency, and

        they need to avoid the serious risks which undoubtedly in

        my judgment exist.

        Now, if B was to return to his family and there were

        anxieties subsequently, even though no actual injury took

        place, he would have to be removed once more.  That would

        mean back to short term foster parents and then a further

        issue no doubt as to whether he should go back to his parents

        or not.  He undoubtedly suffered a number of injuries whilst

        in their care and the future must in my judgment lie in the

        long-term planning with foster parents.  In B's case I shall

        make a full care order giving leave for him to be placed with

        long-term foster parents.  ..., to whom I am indebted for a

        most admirable presentation of the parents' case, suggested

        that a further six months could elapse during which one could

        see whether therapy instituted by was in any way

        successful.  She submitted that there were the beginnings

        of such signs even now.  I do not think that, with respect

        to her submission, I should take that course, as I am

        satisfied that B now must be allowed to plan his future

        through those who are looking after him.

        As to C, one is left with probably the saddest and most

        difficult decision of all three children.  It is a

        question here of balancing the risks.  It is happily -

        although publicity is given to every incident in this country

        now, or to many of them - that child abuse is comparatively

        rare.  But for it to happen twice is in my experience, and I

        believe in the experience of many others, extremely rare.  The

        picture now is the picture which was presented by B when he

        was taken off the 'at risk' register, and within six weeks he

        was in hospital with the injuries which I have described.

        I appreciate the hurt that I shall be causing to the parents,

        but my duty is clear to this child, which is to place him

        in care.  I shall make a care order in respect of C also."

        Following the hearing in July, the first applicant sought a

variation of the July order on the basis that the first and second

applicants had been advised that until they made frank admissions and

acknowledged that they were at fault and needed help, no-one would be

prepared to trust them.  The first and second applicants also applied

to seek further psychiatric evidence.  The application was heard by

the High Court judge on 22 August 1986 who refused it on the basis

that it was in effect an appeal against his earlier order and the

proper forum for that was the Court of Appeal.  He commented that he

had adjourned the hearing in January for evidence to be sought and

that there had been ample opportunity for this to be done.

        The applicants' counsel submitted advice on the appeal and

legal aid was revoked in spite of this advice.  The applicants changed

their solicitors who obtained for them new counsel.  The applicants

state that the new legal advisers were critical of the applicants'

previous legal representatives' handling of the case.  The applicants

successfully appealed against the revocation of legal aid and obtained

advice to appeal out of time.  The application for leave to appeal out

of time was granted, but the appeal against the July 1986 order was

dismissed on 19 February 1987.

        On 2 March 1987, the first and second applicants introduced

before the Commission an application, no. 12792/87, in which they

complained of being deprived of a fair hearing contrary to Article 6

para. 1 of the Convention and of being deprived of the care and

custody of B and C contrary to Article 8 of the Convention.  The

applicants alleged that their right to a fair hearing was prejudiced

by their legal advisers' neglect in not obtaining proper medical and

psychiatric evidence and their advice to the first applicant to make a

false statement under oath that he had caused certain injuries to his

son, B.  The Commission dismissed the application as manifestly

ill-founded on 13 July 1987.

        On 14 April 1987, the county council took out a summons

seeking leave to commence proceedings for orders that B and C be freed

for adoption and that access by the applicants be terminated on the

making of such an order and that leave be given to place C with

long-term foster parents.

        On 26 May 1989, following a hearing at which the first and

second applicants were represented by counsel and solicitor,

Mrs.  Justice Booth made an order terminating the first and second

applicants' access to B and C and ordered that B and C be freed for

adoption.  The judge stated in her judgment that she was bound by the

findings of the courts dealing with the earlier applications.  She

found that B and C, who were now placed in the same foster home, were

settled with the foster parents and that rehabilitation with the first

and second applicants was not a viable proposition.

        "It is inconceivable that a child such as C - so young -

        for whom the V 's home is really the

        only home that he will ever remember, could be moved

        without the risk of enormous emotional damage.  It would,

        I think, destroy these children to be separated for no

        good reason, even if it was thought safe to remove B,

        which I cannot find any evidence for whatever.

        It seems to me therefore that an adoption order at the

        end of the day would be one that was in the best interest

        of these children.  Having said that, it must follow as

        a matter of course that access then would be very difficult

        to sustain indeed.  Access is generally not compatible with

        an adoption order.  That is not a once and for all or

        hundred per cent rule, because there are circumstances

        where the attachment of children to their natural parents

        or natural family is so strong that access should be

        continued and can be contained in an adoption situation

        - in other words, it will not undermine the adoption

        placement.  But in my judgment, this is not that sort of

        case.  Indeed it is far from it, because my findings already

        make it clear that access is incompatible now with the

        placement with Mr. and Mrs.  V.  It is disturbing to B.

        It will soon be disturbing to C.  It does not promote their

        security and stability within the V's household.  It

        undermines that placement.  For those reasons, I would

        think it right that access should come to an end."

        The first and second applicants appealed to the Court of

Appeal, but their appeal was dismissed on 28 November 1989.

COMPLAINTS

        The applicants complain that they have been deprived of their

right to family life under Article 8 of the Convention.  They submit

that in determining questions as to care, courts have a duty to ensure

that they are equipped with all the relevant facts.  Since the

applicants were not given a copy of the medical report concerning B's

injuries and the applicants' solicitors failed to obtain an

independent medical report, the judge was not presented with the full

facts of the case in deciding whether the injuries were

non-accidental.  The judge should have ordered an adjournment to allow

the applicants to obtain an independent medical opinion.  The finding

of the judge lead to B and C being taken into care and later freed for

adoption and the applicants submit there has therefore been an

unjustified interference with their right to family life in that the

parents have been unjustifiably deprived of their children and the

children unjustifiably deprived of their family life with their birth

parents.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 21 December 1989 and

registered on 4 January 1990.  By letter dated 21 December 1989, the

applicants requested that Rule 36 of the Commission's Rules of

Procedure be applied to prevent the adoption of B and C pending their

application before the Commission.  On 11 January 1990, the President

of the Commission decided not to indicate to the United Kingdom

Government the measure requested but that the applicants be informed

that the application would be examined by the Commission in its

session beginning on 5 February 1990.

THE LAW

        The applicants complain of being deprived of their right to

respect for family life as guaranteed under 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 recalls that the first and second applicants

introduced an earlier application, No. 12792/87, in which they

complained under Article 8 (Art. 8) in respect of the proceedings

before the High Court following which B and C were placed in long-term

foster care.  This application was dismissed as manifestly ill-founded

on 13 July 1987.

        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 notes that the present application is

based on the same facts as the earlier one.  In this application

however it is argued that the courts were at fault in determining the

question as to custody of B and C without ensuring that they were

equipped with all the relevant facts and that the findings in these

proceedings led to B and C subsequently being freed for adoption.

This application is also brought on behalf of B and C, the third and

fourth applicants.

        Insfar as the first and second applicants complain of the

decision of the High Court of 28 July 1986 which ordered B and C to be

placed in care, the Commission considers that the new argument adduced

as to the duty of the courts to ensure they were equipped with all the

relevant facts does not constitute new relevant information within the

meaning of Article 27 para. 1 (b) (Art. 27-1-b).  The Commission

accordingly finds this part of the application substantially the same

as the previous application and in these circumstances, the first and

second applicants' complaints as to these proceedings must be

dismissed as inadmissible under Article 27 para. 1 (b) (Art. 27-1-b)

of the Convention.

        Insofar as the first and second applicants complain that B and

C have now been freed for adoption and access terminated, the

Commission recalls that this step was taken following its previous

decision in application no. 12792/87 and consequently the Commission

may proceed to examine this aspect of the first and second applicants'

complaints.

        The Commission finds that the decision to free B and C for

adoption and terminate access constitutes an interference with the

first and second applicants' right to respect for their 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 (Art. 8-2) and whether it was

"necessary in a democratic society" for that or those legitimate aims.

        The Commission recalls that B and C were freed for adoption by

the High Court pursuant to its wardship jurisdiction and that the High

Court made the order as necessary to protect B and C from further risk

of injury or emotional damage.  The Commission accordingly finds that

this decision was "in accordance with the law" and for the legitimate

aim of protecting B's and 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 B and C for

adoption and terminating the first and second applicants' access to

them were necessary in the interest of B and C, 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 High Court on 26 May 1989.

        The Commission recalls that the High Court judge found that

the adoption was in the best interests of the children, since removal

from their foster parents would cause enormous emotional damage and

place them at further risk.  The High Court judge also found that

access was incompatible with adoption since it was disturbing B,

threatened to disturb C and undermined their security and stability

in their new home.

        The Commission finds that these reasons were "relevant" and

"sufficient" for the decisions in question.

        The Commission also recalls that the first and second

applicants were present at the hearing and were represented by

solicitor and counsel.  The applicants therefore had the possibility

of putting forward any views which in their 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 first and second applicants were

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

provide them with the requisite protection of their 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

a 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.

3.      The Commission has lastly examined the application as

presented on behalf of B and C as third and fourth applicants.  The

Commission has considered whether the first and second applicants may

properly act on behalf of the third and fourth applicants but finds it

unnecessary to decide the issue for the reasons set out below.

        Insofar as complaints in a petition are substantially the same

as those put forward in an earlier application, they cannot be

rejected under Article 27 para. 1 (b) (Art. 27-1-b) where they are

presented by different persons with a specific personal interest in

introducing the application (see e.g. No. 9028/80, Dec. 16.10.80,

D.R. 22 p. 230). However, the Commission finds no reason to differ

from its conclusions in the previous application no. 12792/87 and its

finding above that the courts acted in the best interests of B and C

in reaching their decisions and that the measures taken were in

accordance with the law and necessary in a democratic society for the

protection of B' and C's health under Article 8 para. 2 (Art. 8-2) of the

Convention.

        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)