Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13997/88

by Jean Elizabeth DOUGLAS

against the United Kingdom

The European Commission of Human Rights sitting in private on

14 December 1988, 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

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 12 October 1987

by Jean Elizabeth DOUGLAS against the United Kingdom and registered

on 1 July 1988 under file No. 13997/88;

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 1952 and resident

in London. The facts as submitted by the applicant may be summarised

as follows.

The applicant's half-sister gave birth to a daughter C. on

16 September 1981. The applicant's half-sister gave C. into the

applicant's care soon after birth and took no further part in C.'s

upbringing. The applicant already had three sons of her own (B. born

on 4 July 1972, L. born on 22 March 1973 and S. born on 18 April

1975). The applicant's sons had been in voluntary care prior to May

1978 when a parental rights resolution was passed by Leeds City

Council. Her sons were returned on trial to the applicant's care in

July 1982.

On 16 November 1982, the applicant left L., S. and C. in the

care of a Miss T. On 17 November, Miss T. was arrested and was taken

to the police station with C., who was collected by the Social

Services Department of the London Borough of Lambeth (hereafter the

"Social Services"). From 17 to 22 November L., S. and C. were cared

for by a temporary carer, while efforts to trace the applicant were

unsuccessful. On 22 November 1982 C. was placed in care under Section

2 of the Child Care Act 1982 and placed with short-term foster

parents. On 26 November 1982, the applicant contacted the Social

Services and on 29 November 1982 C. was returned to the applicant, who

also had regained the care of her sons. It later was revealed that on

16 November 1982 the applicant had flown to the West Indies with B. to

visit B.'s father who was ill.

On 4 March 1983, the Social Services were informed that the

applicant had been arrested in Switzerland in connection with cheque

frauds. They also discovered that the applicant had been arrested in

Switzerland on a previous occasion in September 1982. On visiting her

home, they found that Mr. L., the applicant's co-habitee, was looking

after the four children. The Social Services applied to the High

Court for C. to be made a ward of court and by order dated 11 March

1983 C. was confirmed as a ward of court and committed to the care of

the London Borough of Lambeth.

The Social Services informed the High Court that the applicant

had been involved in various criminal activities while she had been

living in Leeds which had contributed to her difficulties in caring

for her sons and that they were concerned that if the applicant

continued to be absent from home for substantial periods of time

because of criminal or other activities she would be unable to offer

C. appropriate long-term care. They recommended however that pending

definite information regarding the applicant's return to the United

Kingdom C. remain at the applicant's home in the care of Mr. L. but

that they should have the right to remove C. if there were any ground

for concern for her welfare. On 27 April 1983, the High Court

directed that C. continue to reside in the applicant's home under the

care of Mr. L. It also became apparent that the applicant had left

owing substantial sums for the phone, gas and electricity, all three

services now threatening disconnection. The Social Services came to

an agreement with Mr. L. and paid the bills to prevent disconnection.

On 27 August 1983, the applicant returned to the United

Kingdom, having been sentenced in Switzerland to a 18 month suspended

prison sentence in relation to fraud offences. The applicant was

warned by the Social Services that any further disappearances might

lead to C. being removed.

On 13 December 1983, the applicant was arrested on suspicion

of fraud offences and held in custody pending attendance at Croydon

Crown Court. On 14 December 1983, two friends, who had been caring

for C. in the applicant's absence, left C. with the Social Services.

All four children were placed in emergency care that day. On

15 December 1983 the applicant was released and the children returned

to her.

On 1 March 1984, the applicant was remanded in custody on a

charge of conspiracy to defraud. The Social Services discovered that

the applicant had arranged for a friend Mr. C. to stay at her home

with her three sons, while C. was sent to live with Mr. C.'s wife.

On 8 March 1984, the Social Services held a case conference and

decided that the applicant had shown herself to be unreliable and

unfit to care for C. They proposed to place C. with long-term foster

parents with a view to adoption and requested Leeds Social Services to

take the three boys back into residential care.

On 15 March 1984, the three boys were collected by a social

worker from Leeds. B. succeeded in running away and was sent to Leeds

several days later. All three were placed in a children's home in

Leeds.

On 13 April 1984, the applicant was committed for trial. Bail

was refused.

On 16 May 1984, the High Court ordered C. to be removed from

Mr. and Mrs. C. and placed with short-term foster parents.

On 10 September 1984, the applicant was sentenced to 21 months'

imprisonment, inter alia for handling stolen goods and possession of a

stolen cheque book and false passport. She was released from prison

on parole on 3 May 1985.

On 2 November 1984, C. was placed with a short-term foster

mother, who noticed marks of injury on her back.

The matter came back before the High Court on 5 December

1984. In their affidavit of 4 November 1984, the Social Services

submitted to the court:

"The have been very concerned indeed about

the disruptions in 's life caused in some part by the

's arrest and imprisonment. They acknowledge that

the applicant is the parent figure in 's life and believe

that the applicant again feels strongly that she wishes to

undertake 's care upon her discharge from prison. On

balance they now believe subject to anything that may emerge

as a result of the doctor's report on 's bruising, the

applicant should be given one final chance to show that she

can change her lifestyle in order to provide a stable home for

and accordingly would propose that upon her parole from

prison there should be a programme of access to the child

leading, if all went well, to her rehabilitation to the

applicant after a relatively short introductory period. ...

would regard the 's cooperation

with them as essential for the success of the rehabilitation.

They in turn would offer the social work support,

reasonable financial help in providing necessaries for C. and

help in finding a day nursery place for her. Thus the

Services> consider it important to give C. increased stability

in her life and to monitor her development which from time to

time has given cause for concern. The also

believe that the would find it easier to stay away

from criminal activities if she had a regular job and thus a

greater income ...

... The have reached these recommendations

after very lengthy consideration and consider that any

rehabilitation of to the should be seen as the

last chance and be undertaken only upon stringent conditions.

If C. were to come into care again or if she were again left

in the care of persons other than the applicant in

circumstances such as have arisen in the past they would

recommend that an alternative permanent placement be sought

for C. forthwith."

Following the order of the High Court, C. was returned to the

applicant's care on 17 May 1985 on the applicant's undertaking to

reside at all times with C. at her home address or other address as

notified to the Social Services and to ensure C.'s regular attendance

at a day nursery. The order also gave the Social Services leave to

remove C. from the applicant if they considered it necessary on

condition they restored the matter to the Court within 48 hours. L.,

B. and S. returned home in August 1985.

The applicant was charged with an offence relating to use of a

stolen cheque and was tried on 28 January 1986. She received a nine

months' prison sentence to be suspended for two years.

On 22 April 1986, the Social Services rang the applicant's home

and discovered that the applicant had disappeared, her whereabouts

unknown though she had arranged to leave her children in the care of a

friend and a neighbour. The applicant was later discovered to have

been arrested on her return from Jamaica for possession of cannabis.

On 25 April 1986, the Social Services were granted a seek and

restore order from the Court, to secure the custody of C. who had been

removed at the applicant's instruction to a place unknown to the

Social Services. C. was found on 28 April with the applicant who had

been released on 24 April. C. was placed in a children's home.

On 29 April 1986, the High Court granted leave to place C.

with short-term foster parents. The applicant was allowed access to

C. of 1 1/2 hours per fortnight.

On 29 July 1986, the High Court granted leave for C. to be

placed with long-term foster parents.

On 8 September 1986, the applicant was convicted of a drugs

offence and sentenced to 27 months' imprisonment.

The applicant was granted home-leave from prison and by order

of the Court dated 20 August 1987 was allowed access to C. on

7 September 1987. The Social Services took the view that this visit

caused disruption to C. and applied to the High Court for further

access to be suspended. This suspension was granted on 8 December

1987. On 18 and 19 January 1988, the Social Services' application

for C. to be placed for adoption and for the applicant's access to be

terminated came before the Court. The applicant was present and

represented by counsel and solicitor. The judge held that the risks

of further imprisonment of the applicant meant that it would not be in

the interests of C. to return to the applicant. While the judge

recognised the close relationship between the applicant and C., he

found that he could not trust her to end her criminal activities and

noted that C. had become close to her foster mother. Over a period of

18 months there had been no improvement in the situation of the

applicant and the risk of her not being able to provide stability to

C. was too high. Since it was not possible to pursue the course of

long-term fostering with continued access (since the Social Services

stated that no foster parents looking towards adoption would agree to

this), the judge granted the Social Services' application. By order,

no further access was to be granted to the applicant save one possible

further occasion at the discretion of the Social Services.

The applicant was released from prison on 16 March 1988.

COMPLAINTS

The applicant complains that the Social Services lied in the

evidence they presented to the Court and that the order placing C. for

adoption and terminating access was based on petty reasons. She

complains that she and her daughter have been treated inhumanly and

wishes to resume care of her daughter. The applicant does not invoke

any particular Article of the Convention.

THE LAW

The applicant complains that she has been deprived of the

custody of and access to her daughter C. She complains that the

Social Services told lies to the Court and that she and her daughter

have been treated inhumanly.

The Commission has examined the applicant's complaints under

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

While C. is not the applicant's natural daughter, the

Commission notes that the applicant assumed the care of C. when she

was two weeks old and that until the conclusion of the wardship

proceedings, the applicant has been C.'s de facto mother.

The Commission finds that, in accordance with its established

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

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 C. was placed with long-term

foster parents with a view to adoption and access terminated following

the decision of the High Court on 19 January 1988, when the judge

found that the applicant was unable to provide C. with the necessary

stability and that it was not in C.'s interest to return to the

applicant. The Commission accordingly finds that this decision, made

pursuant to the Court's common law jurisdiction, was "in accordance

with the law" and was made for the aim of protecting C.'s health and

rights.

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, 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 C. in care with

a view to adoption and terminating the applicant's access to her were

necessary in the interest of 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, para.

68). The Commission has accordingly examined the reasons given in the

judgment of the Court on 19 January 1988.

The Commission recalls that the judge acknowledged the close

relationship between C. and the applicant but found that the applicant

could not be trusted to end her criminal activities and the risks of

further imprisonment meant it would not be in C.'s interests to return

to the applicant. The judge also found that over the previous 18

months the applicant had made no improvement and the risk of her not

being able to provide stability to C. was too high. Since the

applicant could not be trusted to care for C. and it was not possible

to have long-term fostering with access, the judge ordered that C. be

placed for adoption and that access should cease. The Commission

finds that these reasons were "relevant" for the decisions in

question. It also considers that the judge had "sufficient" reasons

for thinking that it was necessary to place C. in care for adoption

and to terminate the applicant's access to her.

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

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 health and for the

protection of the rights of others.

It follows that 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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DOUGLAS v. the UNITED KINGDOM

DOUGLAS v. the UNITED KINGDOM

LEXI