Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13641/88

by Valerie BRYCELAND

against the United Kingdom

The European Commission of Human Rights sitting in private on

8 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

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 2 February 1988

by Valerie BRYCELAND against the United Kingdom and registered on

15 February 1988 under file No. 13614/88;

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 applicant is a British citizen born in 1959 and resident

in London. She is represented by P. William Ackroyd, a solicitor

practising in London.

The facts as submitted by the applicant may be summarised as

follows.

The applicant is the mother of four children. Her first

daughter L. was born on 29 December 1975 during the applicant's first

marriage. After the applicant's divorce in 1977-78, the applicant

lived for two years with the father of her second daughter K., who was

born on 7 December 1978. On 1 July 1980, the applicant married again

and gave birth to her son M. on 10 September 1980. The applicant has

been recently divorced. From 1981, the applicant lived with D. L. who

was father to her fourth child, a son C., born on 20 September 1983.

When D. L. first began living with the applicant, the

applicant's children were put on an "at risk" register by the London

Borough of Croydon, as a result of his previous conviction for assault

on a child and the local authority apparently threatened to remove the

children, though no such action was taken. The applicant moved to

Southwark with D. L. and, while pregnant with C., began taking heroin,

with the result that she became addicted.

In July 1984, D. L. hit the applicant's son M. and the

applicant took her children to live with her mother and sought help

from Southwark Social Services. Shortly afterwards, all four children

went into voluntary care and the Social Services arranged for the

applicant to spend two months in the drug unit at Bethlehem hospital.

However, two months did not prove long enough and the children

continued to live with foster-parents, Mr. and Mrs. N., whom the

applicant had known in 1980 as neighbours.

In or about January 1985, the applicant moved back to Croydon

and the two boys M. and C. came back to live with her, the girls

remaining in voluntary care as it was felt that the applicant should

not try to resume care of all four children at once. The two girls L.

and K. however came to stay at weekends and returned home completely

at Easter 1985.

The applicant had registered as a drug addict in January 1985

at a drug clinic to continue to receive help to end her addiction. In

July 1985, Croydon Social Services discovered the fact that she was a

registered addict and instituted care proceedings, having removed the

children under a Place of Safety Order. In or about October 1985,

they obtained a care order in respect of the children, the Court

finding that the children were in moral danger and in need of care and

protection.

The children returned to Mr. and Mrs. N. and the applicant

visited them weekly, while continuing her treatment at the drug clinic

where they were reducing her prescription in the hope of ending her

addiction. The applicant's social worker apparently refused to find

the applicant a place in hospital, since he felt she was not committed

to giving up drugs.

In February 1986, the applicant was admitted to a "detox"

centre for heroin addicts. After a 3 week stay, the applicant, who

had developed a drug-related psychosis, was transferred to Bethlehem

Psychiatric Unit. In July 1986, the applicant was given a place at

Oak Lodge and remained there until July 1987, when she moved into her

present home. Since her admission to the "detox" centre, the

applicant has not taken heroin and suffered only one lapse when she

took a dose of heroin substitute. The applicant had the intention of

resuming care of her children when she had re-established herself and

maintained contact with Mr. and Mrs. N. for this purpose.

Meanwhile, following a case-conference attended by the

applicant on 27 November 1986, the Social Services decided that the

applicant should have less contact with the children. They reduced

access visits to once per month and arranged for Mr. and Mrs. N. to

apply for custodianship of the children. The application was due to be

heard on 2 July 1987, but Mr. and Mrs. N. withdrew their application

before the hearing.

A representative of the Family Rights Group enquired on the

applicant's behalf of the appeal procedures available to challenge the

decision to reduce access and was informed by letter dated

10 December 1986 that an appeal lay to the Director of the Social

Services. By letter dated 19 January 1987, the applicant appealed to

the Director requesting that the decision be reconsidered. The

Director by letter dated 27 February 1987 informed the applicant that

after studying the situation, he felt that monthly access would be

most in the interests of the children, but that he would expect this

to continue without any further reduction in the future. The

applicant was later informed that the next stage of the appeal

procedure would be to submit the case to the Child Protection and

Special cases Sub-Committee of the local authority and that there was

no provision for parties to attend in person.

Access arrangements were reviewed by the sub-committee

at a meeting on 22 June 1987, where it was decided that not less

than monthly access was in the best interests of the children; that,

save in the most exceptional circumstances, there should be no further

reduction in access; and that access should take place at the foster

home but this situation should be kept under review in light of any

change which indicated that the children might benefit from time spent

with their mother elsewhere.

In July 1987, the applicant left Oak Lodge and moved into a

one bedroom flat. She began training to be a Youth Worker.

On 18 January 1988, the Social Services reviewed the case

again, noting the applicant had attended all the monthly visits to her

children. It was decided that monthly access continue but that a

social worker should visit the applicant's accommodation and that a

social worker and the foster parents should find out the children's

wishes and feelings regarding access.

In February 1988 the applicant instructed her solicitors to

apply to the Juvenile Court to revoke the care orders on her

children. The Social Services agreed however that they would not

dispute on jurisdictional grounds an application by the applicant

within wardship. The applicant obtained legal aid and issued an

originating summons in wardship. Following an order on 21 June 1988,

the children have been confirmed as wards of court. Since then, the

applicant has been granted further access namely, 2 periods during

which the applicant may take her eldest daughter out during part of a

day. The guardian ad litem appointed by the Juvenile Court continued

to represent the children. In a report dated 3 June 1988, she stated

that the change in the applicant over the last 3 years was remarkable

and that she now appears to be a thoughtful young woman who views the

future positively. She reported that the applicant had been drug free

since 1987, was starting to establish a career for herself and that

although the applicant wishes to resume care of her children, she

recognised that the children's best interests were paramount and would

accept whatever that might entail. The guardian ad litem recommended

that access be increased, to allow the applicant to take out her 2

daughters at fortnightly intervals between the monthly visits.

The guardian ad litem has since been replaced before the High

Court by the Official Solicitor. The High Court would again consider

the applicant's access to her children on 27 February 1989.

COMPLAINTS

The applicant's complaints relate only to the decisions on

access culminating on 22 June 1987. In this regard, the applicant

complains that the law relating to children taken into care is in

breach of Article 6 of the Convention in that parents are not entitled

to a fair and public hearing. The applicant complains that she is

denied any right to challenge in a court of law the amount of access

which she is allowed.

The applicant complains that the legislation and application

of the legislation as indicated by recent cases before the European

Court of Human Rights is in breach of Article 8 of the Convention and

is not necessary in a democratic society. The applicant complains

that the decision-making machinery concerning parental contact with

children in care does not afford her an adequate opportunity to

influence or to participate in the decisions and therefore violates

her rights under Article 8 of the Convention. In particular, the

applicant complains of the failure of the local authority to provide

access which could develop into reintegration of the children into

family life with the applicant.

The applicant also complains that she does not have an

effective remedy in respect of her complaints contrary to Article 13

of the Convention.

The applicant further submits that, for the purposes of

Article 26 of the Convention, there has been no final decision in

respect of her complaints, the situation being a continuing one in

which the applicant is denied any right to challenge in a court of law

the amount of access which she is allowed.

THE LAW

The applicant has complained that she is denied access to

court to challenge decisions concerning access, that the

decision-making machinery concerning access of children in care fails

to protect her interests and that she has no remedy for her

complaints. She invokes Articles 6, 8 and 13 of the Convention.

The Commission recalls that it must confine itself, as far as

possible, to an examination of the concrete case before it and may not

review the law in abstracto. The Commission therefore may only

examine the applicant's complaints insofar as the system of which she

complains has been applied against her (see e.g. Eur. Court H.R.,

Olsson judgment of 24 March 1988, Series A no. 130, para. 54). It

follows that the Commission can only examine the decisions taken and

procedures implemented in the present case.

The Commission recalls that following the case-conference of

27 November 1986, the local authority decided to reduce access from

once per week to once per month and that this decision was reviewed by

firstly, the Director of Social Services and secondly, the special

sub-committee of the local authority, which on 22 June 1987 upheld the

decision to reduce access.

The Commission considers that it is not required to decide

whether or not the facts alleged by the applicant disclose any

appearance of a violation of the provisions invoked by the applicant.

Article 26 of the Convention provides that the Commission "may only

deal with the matter... within a period of six months from the date on

which the final decision was taken".

In the present case the decision of the sub-committee of the

local authority, which was the final decision regarding the subject

of the applicant's complaints, was given on 22 June 1987 whereas the

application was submitted to the Commission on 2 February 1988, that

is more than six months after the date of this decision. It is true

that the applicant submits that, in particular, the lack of access to

court is a continuing situation and that the decision of 22 June 1987

cannot be regarded as the "final decision" within the meaning of

Article 26. However, this factual situation arose on 22 June 1987 and

must therefore in the Commission's opinion be regarded as the "final

decision" also for the purposes of the complaint of non-access to

court. Furthermore, an examination of the case does not disclose the

existence of any special circumstances which might have interrupted or

suspended the running of the six month period.

It follows that the application has been introduced out of

time and must be rejected under Article 27 para. 3 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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BRYCELAND v. THE UNITED KINGDOM

BRYCELAND v. THE UNITED KINGDOM

LEXI