AS TO THE ADMISSIBILITY OF

Application No. 14114/88

by Andrea DAVISON

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 9 August 1988

by Andrea DAVISON against the United Kingdom and registered on

18 August 1988 under file No. 14114/88;

        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 1966 and resident

in Newcastle-upon-Tyne.  She is represented by David Smark, a

solicitor practising in Newcastle-upon-Tyne.  The facts as submitted

by the applicant may be summarised as follows.

        The applicant had an unhappy childhood.  She was abandoned by

her own mother and sexually abused by her father.  She was taken into

care at the age of 11 and became pregnant while in care.  Her son K

was born on 8 March 1983.

        After K's birth, the applicant went with K to a family care

centre in order to learn mothering skills.  At the end of 1983 the

applicant and K left the centre to live with Mr. and Mrs.  H, who had

once been her own foster-parents.  The relationship between the

applicant and Mr. and Mrs.  H broke down.  There were rows about what

Mrs.  H regarded as her lack of care for the baby and the applicant

told Mr.  H that the baby was "costing her boyfriends".  In discussions

with Mr. and Mrs.  H, the applicant agreed it would be better for

herself and K if K went to long-term foster-parents.  On 31 December

1984, the applicant left K with a babysitter and did not return.  She

phoned Mr. and Mrs.  H the next day to inform them that she would not

return until K had been placed with foster-parents.  For the next few

months K was looked after by Mr. and Mrs.  H and the applicant had

access to K for one hour each week.

        On 12 April 1984, the Social Services Department of the City

of Newcastle-upon-Tyne (hereafter the "Social Services") held a case

conference concerning K which the applicant was not invited to attend.

They had made K a ward of Court soon after his birth on 23 June 1983

and shortly afterwards an order was made committing the interim care

and control of K to the Social Services.  The Social Services took the

view that K should be adopted.  They placed K with long-term

foster-parents on 17 May 1984, without prior consultation with the

applicant or seeking the permission of the Court, following erroneous

advice from the District Registrar.  They also applied to the Court to

terminate the applicant's access.  On 25 June 1984, the High Court

granted the application terminating the applicant's access, although

the judge criticised the moving of K to long-term foster-parents

without application to the Court because it had pre-empted his

decision terminating access.

        The applicant appealed to the Court of Appeal, which on

31 August 1984 restored access of one hour per week on the basis that

it was too early to close the door on rehabilitation.  The applicant

alleges that the Social Services disagreed with the decision and led

the applicant to believe that it would not be complied with.  The

Social Services had also led K's foster-parents to believe that they

could adopt K.

        The Social Services sought the advice of a child psychiatrist,

who in his report of 11 March 1985 recommended that access should be

increased.  Access was subsequently increased.

        In December 1985, a statutory review was held by the Social

Services concerning the case which the applicant was invited to attend

with her legal adviser.  While it was reported that access had taken

place successfully, the Social Services decided that an application

should be made to the Court to terminate access since it was in their

view leading nowhere.  In April 1986, a summons was issued applying

for termination of access and leave to place K for adoption.

        Following alleged signs of distress by K during access visits

in May, the Social Services applied to the High Court which, on 18 June

1986, suspended access except for diagnostic purposes, pending the full

hearing of the Social Services' application.

        Following a hearing on 4 November 1986, the High Court in a

judgment dated 24 November 1986 agreed to terminate access and grant

leave for K to be placed for adoption.  In the judgment, the judge

found that the Social Services had in fact flouted the spirit of the

Court of Appeal's decision by failing to consider or trying

rehabilitation.  He also found that following the case conference in

December 1985, "a decision to terminate access was taken at that stage

without any evidence that the child was being upset, without any

evidence that any step towards rehabilitation was being considered and

I am  drawn to the conclusion that the reason why this extraordinary

decision was taken ... was because the overall plan was, right from

the start, to apply for a permanent placement, adoption and access

just did not fit into that plan".  The judge went on however to find

that K had bonded very successfully with his foster-parents with whom

he had lived for two years and that the Court no longer had any

choice:

        "Today, in giving this judgment, this Court is presented with

        a fait accompli.  The child has now been with foster-

        parents too long for him to be taken away from them at his

        early age; no attempt has been made at rehabilitation and

        it is now too late, and if is to stay with

        parents> it clearly should be under an Adoption Order in

        order to avoid strain and stress.  It is right that access,

        therefore, should be broken off.  The Court has been placed

        in a position in which a decision has literally been thrust

        upon it and there is no alternative."

        The judge reviewed in detail the evidence relating to the

history of access visits.  He noted that K was increasingly distressed

during access visits in the six-month period before the hearing.  He

accepted the evidence of the consultant psychiatrist, who had stated:

        "During the earlier months of 's life there were serious

        doubts as to 's ability to care for him in an

        unsupported environment, therefore the local authority sought

        long-term foster-parents for him, with whom he has now been

        placed for over two years.  's personal

        circumstances have certainly changed for the better and she is

        in a better position now than she was before, to offer him a

        home.  But is a demanding boy who requires clear limits

        and is functioning at a reasonable level at the present time.

        He has lived with for over two years, the

        most crucial over the period of maximum attachment - in other

        words, between 18 and 24 months.  behaviour to access

        visits and his behaviour within the foster-parents' home leads

        me to the conclusion that he views as his

        parents at an emotional level.  Over the last year the quality

        of the relationship between and does not

        appear to have improved despite ... regular access visits.

        Any attempts to return to 's full time care

        must be seen as the equivalent of removing from his

        emotional parents.  The uncertainty which exists about 's

        future has perhaps contributed to the anxious attachment which

        he shows prior to an access visit.  If he is to remain in his

        present family; the certainty of this placement needs to be

        confirmed as quickly as possible, perhaps by adoption.  In

        these circumstances continued access would offer no positive

        benefits to 's long-term development."

        The judge concluded in light of the evidence that K was not

benefitting from access and that he might suffer harm if it continued.

        The applicant appealed to the Court of Appeal which on

16 February 1987 upheld the High Court's decision.  Though it

commented critically on the handling of the case by the Social

Services, it held that the judge had given proper consideration to

the question of whether it was in the interests of K for access to

continue and that her conclusions on the evidence could not be

faulted.

        The applicant appealed further to the House of Lords which,

after hearings held on 30 November 1987 and 1 December 1987, gave its

judgment on 18 February 1988.  The House of Lords agreed that the

decision of the High Court had been "distressingly inevitable" but did

not agree with the criticisms levelled at the Social Services by the

High Court and the Court of Appeal.

        Lord Oliver gave a long and detailed judgment, with which the

other Lords of Appeal concurred and in which he examined in depth the

child care cases dealt with by the European Court of Human Rights.

The following extract sets out part of his findings:

        "...  I am, however, for my part, quite unable to discern in

        the conduct of the respondents anything that could fairly be

        described as a disregard of the spirit of the Court of

        Appeal's order.  The court's intention, on its face, was

        simply that access should continue for the time being so that

        the possibility of rehabilitation should not be wholly

        excluded and nothing in the court's judgment indicated any

        disagreement with the view of Hollis J., formed after a close

        analysis of the evidence, that rehabilitation was not a

        realistic present possibility.  I read that judgment as

        doing no more than suggest that the effect of access should be

        assessed over a longer period before making a final decision

        of where the ward's interests lay.  If there is a criticism

        which can legitimately be made of the respondents it is, I

        think, this, that , their social worker in charge of

        the case, had clearly perceived at a very early stage that the

        ward's long-term future lay in adoption by the foster-parents

        and this, rather than positive attempts at rehabilitation,

        continued to colour her approach to the question of access by

        the child's mother.  At the same time, there has to be borne

        in mind that her primary responsibility was to this child who

        had already had a fairly disturbed babyhood and had, for the

        first time, been received into a stable home with people to

        whom he could relate as his parents.  What the respondents

        determined to do was to seek the advice of a very well known

        paediatrician, , and an application to the court to

        enable that to be done was made and granted.  lived in

        the south of England and it was some time before arrangements

        could be made to enable him to report.  He did so, however,

        on 11 March 1985 and recommended a programme of phased

        extension of access by the appellant to embrace visits of up

        to three hours, weekly in the first instance.  In his report,

        emphasised that this was to be an entirely diagnostic

        exercise and was not to be thought to imply any bias either

        for or against eventual rehabilitation.  The judge regarded a

        'diagnostic exercise' as being entirely contrary to the spirit

        of the Court of Appeal's order, but I am bound to say that I

        think that that was exactly what the court had in mind in

        speaking of a review in the light of the effect of continued

        access on both mother and child.  Following that report,

        access was increased as suggested and continued on an

        increased scale throughout the year of 1985.  In December 1985

        a departmental review took place, which was attended by the

        appellant and her solicitor and by the foster-parents and it

        is common ground that in the course of the discussion which

        then took place regarding 's future it was intimated that

        the respondents had decided to apply to the court again to

        terminate access and to seek leave to arrange for 's

        adoption.  It is also common ground that, up to that point,

        access by the appellant to the ward had not given rise to any

        difficulties although it was 's evidence that she

        perceived no positive benefit from it to .  's account

        of her reasoning was that her concern throughout was with the

        child's long-term future, that the access which had taken

        place demonstrated nothing to indicate any more realistic

        prospect of rehabilitation than had previously existed and

        that continuing access was likely to be unsettling both for

        the child and for the foster-parents.  It is, however, clear

        from her evidence that she had not regarded rehabilitation

        within the foreseeable future as a practical possibility and

        this no doubt coloured her thinking.  The judge described the

        decision as 'extraordinary'.  It may well have been one that

        could have been more tactfully communicated, but in the light

        of the facts that, at that stage, the ward had been in the

        care of for over 18 months and that the

        appellant was not in a position to provide a settled and

        stable home for him and also having regard to the likely

        effect of an indefinite continuance of a state of uncertainty,

        both on the child and on the foster-parents, I am bound to say

        that the decision, though no doubt inevitably a hard one, and

        from the appellant's point of view perhaps a harsh one, can

        hardly be considered irrational.  In fact access by the

        appellant was continued for the time being and it was not

        until the beginning of April 1986 that a summons was issued by

        the respondents for access to be discontinued and leave for

        the foster-parents to apply for adoption.  Access continued

        thereafter until 18 June 1986 when Hollings J. made an order

        adjourning the hearing of the respondents' summons to a date

        to be fixed and terminating access in the meantime except for

        diagnostic purposes.  The hearing of the summons before Judge

        Cohen occupied four days in October and November 1986 and

        judgment was delivered on 24 November 1986.  In addition to

        the evidence of the social workers involved the judge had the

        evidence of a court welfare officer and a consultant

        psychiatrist, , whom the respondents had obtained leave

        to consult.  That evidence clearly pointed to adoption as the

        only viable long-term solution for the ward.  Particularly

        significant was a passage from 's conclusions:

                'Any attempts to return to full

                time care must be seen as the equivalent of removing

                from his emotional parents.'

        Additionally, the evidence established a deteriorating pattern

        of access, with displaying alarmingly acute signs of

        distress on access visits.  Various suggestions have been

        canvassed to account for this - for instance, that the

        respondents' decision to make the application in December

        created an uncertainty in the foster-parents which

        communicated itself to the child.  The judge made no findings

        about it and any conclusion would be purely speculative.  The

        fact remains that, by the date of the hearing, it was quite

        evident that access visits were, for whatever reason,

        producing reactions of distress the level of which was, in

        P>'s words, 'of a much more intense degree than a typical

        separation anxiety such as one might see for children going

        to school, for instance'.  At the same time, the appellant's

        situation offered little confidence in any present ability to

        provide a satisfactory  home for .  She was living with a

        young man by whom she was pregnant and whom she hoped to

        marry.  Her past relationship with him had, however, been a

        somewhat stormy one and there had been incidents involving

        physical violence, although there was no suggestion that they

        had involved the ward" (<1988> 2 WLR p. 398).

        Lord Oliver concluded that he found no error in the High Court

judge's approach to the question which she was called upon to

determine or in the conclusion to which she felt compelled.  The

appeal was therefore dismissed.

        The applicant had been represented by solicitor and counsel

throughout these proceedings.

        The applicant has since given birth to a second son, who has

remained in her care since his birth.

COMPLAINTS

        The applicant complains of a violation of Article 8 of the

Convention.  She complains that the Social Services failed to make any

effort to rehabilitate the applicant with K.  The Social Services also

placed K with long-term foster-parents without the consent of the High

Court and thus pre-empted the situation despite the decision of the

Court of Appeal and the 1983 Code of Practice.

        She also complains that the Social Services excluded the

applicant from their decision-making process.  She only attended one

case conference (December 1985), all other case conferences and

statutory reviews having been held in confidential circumstances and

the resultant decisions not communicated to her.  The applicant

further submits that her case before the United Kingdom courts

foundered on the effluxion of time and were not decided on the merits.

        The applicant also complains of the length of time taken in

the proceedings and invokes Article 6 para. 1 of the Convention.

THE LAW

1.      The applicant complains of the Social Services.  She complains

that they failed to try to rehabilitate the applicant with K, that

they placed K with long-term foster-parents without the consent of the

High Court and that they excluded her from their decision-making

process.  She also complains that her case before the courts was

decided by the effluxion of time rather than on the merits.  She

invokes Article 8 (Art. 8) of the Convention, which provides as

follows:

        "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 applicant's complaints under this provision arise from the

events following the birth of her child K, who was made a ward of

court on 23 June 1983 and committed by the High Court to the care and

control of the Social Services shortly afterwards.  The Commission

notes that the applicant does not complain of the decisions whereby

access was terminated and K placed for adoption and will not therefore

examine the conformity of these decisions with Article 8 (Art. 8) of the

Convention.  The applicant instead complains of various aspects of the

procedure and decision-making process.  The Commission will therefore

consider whether the subject-matter of these complaints disclose any

lack of respect for the applicant's rights guaranteed under Article 8

(Art. 8) of the Convention.

        The applicant has complained of a lack of involvement in the

decision-making process implemented by the Social Services in relation

to K.  She submits that she only attended one case conference for

example and was excluded from all other discussion of the case.

        An analogous issue was considered before the Court in W v. the

United Kingdom (Eur.  Court H.R., judgment of 8 July 1987, Series A No.

121-A) where it was stated:

        "In the Court's view, what therefore has to be determined

        is whether, having regard to the particular circumstances

        of the case and notably the serious nature of the decisions

        to be taken, the parents have been involved in the

        decision-making process, seen as a whole, to a degree

        sufficient to provide them with the requisite protection

        of their interests.  If they have not, there will have

        been a failure to respect their family life and the

        interference resulting from the decision will not be

        capable of being regarded as 'necessary' within the

        meaning of Article 8 (Art. 8)."

        The Commission recalls that while it appears that the

applicant participated in only one case conference, K had been a ward

of court from 23 June 1983 and that decisions concerning K's future

and welfare lay within the responsibility and control of the High

Court.  Thus, the Social Services were required to apply to the courts

for approval of any proposed measures and the applicant, as party in

the wardship, was fully involved in such proceedings.  The Commission

further recalls that she was legally represented in the wardship

proceedings.  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 overall

decision-making process to a degree sufficient to provide her with the

requisite protection of her interest.

        The applicant has also complained that the Social Services

failed to gain the consent of the court to place K with long-term

foster-parents and that they failed to make any efforts to

rehabilitate the applicant with K.

        The Commission recalls that the Social Services placed K with

long-term foster-parents without applying to the court after receiving

erroneous advice from the District Registrar.  While the High Court

considered in its judgment of 25 June 1984 terminating access that

this had pre-empted his decision, the Court of Appeal on 31 August

1984 reversed his decision and restored access.  Further, while the

applicant complains of the Social Services' failure to pursue a course

of rehabilitation, the Commission recalls that following the Court of

Appeal judgment which stated it was too early to close the door on

rehabilitation, the Social Services consulted a child psychiatrist and

following his recommendation, increased the applicant's access.  In

December 1985 the Social Services then held a case conference attended

by the applicant and came to the decision to terminate access and an

application was accordingly made to the court.  The Commission notes

that the High Court and the Court of Appeal criticised the Social

Services' implementation of the previous Court of Appeal decision.

However, in its judgment of 18 February 1988, the House of Lords found

that the Social Services had not flouted the spirit of the Court of

Appeal's order but acted correctly in conducting a review of the

effect of further access on the applicant and K, before coming to the

conclusion that it was in K's interest for access to be terminated.  In

light of these circumstances, the Commission finds that the

applicant's complaints disclose no lack of respect for her right to

respect for her family life within the meaning of Article 8 para. 1

(Art. 8-1) of the Convention.

        The applicant has further complained that, as in the case of

H v. the United Kingdom (Eur.  Court H.R., H v. the United Kingdom

judgment of 8 July 1987, Series A No. 120, p. 41), the question of

access was decided, not on the merits, but as a result of the

effluxion of time.

        The Commission recalls however that in H v. the United Kingdom

the applicant's access to her child had been terminated on 24 June

1977 and her application for access to be restored was not heard until

22 October 1980, when the child (4 1/2 years old) had already been

placed with adopters and had not seen the applicant for 3 1/2 years.

In the present case, while K had indeed been placed with long-term

foster-parents, access had continued, with only a brief gap

(June-August 1984) until the High Court decision terminating access in

1986.  An examination of the judgments of the High Court, the Court of

Appeal and the House of Lords also shows that the matter of continuing

access for the applicant was examined thoroughly on the merits.

        The Commission accordingly finds that this complaint discloses

no appearance of a violation of Article 8 (Art. 8) of the Convention.

        It follows that the application is manifestly ill-founded

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

2.      The applicant also complains that the length of time taken by

the proceedings breached Article 6 (Art. 6-1) of the Convention, which

in its first sentence of paragraph 1 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 recalls that, in the first proceedings brought

to terminate the applicant's access, the decision of the High Court was

given on 25 June 1984, but reversed two months later on 31 August

1984 by the Court of Appeal.

        Following a period of increased access, the Social Services

again instituted proceedings to terminate access in April 1986.  The

High Court hearing took place on 4 November 1986 and its judgment was

given on 24 November 1986.  The Court of Appeal heard the applicant's

appeal on 16 February 1987 and the applicant's further appeal to the

House of Lords was dismissed in its judgment of 18 February 1988,

following hearings held on 30 November 1987 and 1 December 1987.  These

proceedings accordingly lasted less than two years.  As previously

stated, the Commission finds that the subject-matter of the

proceedings was decided on the merits and not by the effluxion of

time.

        In light of these circumstances, the Commission finds that the

proceedings did not exceed the reasonable time required by Article 6

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

        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

        DECLARES THE APPLICATION INADMISSIBLE.

  Secretary to the Commission         President of the Commission

         (H.C. KRÜGER)                      (C.A. NØRGAARD)