AS TO THE ADMISSIBILITY OF

Application No. 13184/87

by Paul Walter HORN and Margaret HORN

against the United Kingdom

        The European Commission of Human Rights sitting in private on

4 July 1988, the following members being present:

                MM.  C.A. NØRGAARD, President

                     S. TRECHSEL

                     E. BUSUTTIL

                     A.S. GÖZÜBÜYÜK

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     J. CAMPINOS

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 7 January 1987

by Paul Walter HORN and Margaret HORN against the United Kingdom and

registered on 7 September 1987 under file No. 13184/87;

        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 first applicant is a British citizen born in 1957 and

resident in Llandudno.  The second applicant, who is married to the

first applicant, is a British citizen born in 1952 and also resident

in Llandudno.  The facts as submitted by the applicants may be

summarised as follows.

        While the second applicant was six months pregnant, the

applicants (at that stage unmarried) approached St-Helens Metropolitan

Borough Council (hereinafter "the local authority") in February 1985

seeking financial help and a temporary fostering situation for the

expected baby.

        On 12 May 1985, the second applicant gave birth to a son T.

While the second applicant was discharged from hospital, T. was kept

in hospital.  On arrival at the hospital on 17 May 1985 to visit T.,

the applicants discovered that T. had been removed by the local

authority who had instituted wardship proceedings in respect of the

child.  Counsel's note on appeal refers in this respect to the Social

Service's concern at the father's personality and the mother's

apparent complete and utter acceptance of his rather bizarre views on

parenting.  On contacting the local authority, the applicants were

allowed to visit T. once per week for one hour.  On 2 July 1985, the

first applicant's access was revoked by the High Court, apparently as

a result of the first applicant's conduct in threatening and abusing

the supervising social worker.  The second applicant took the view

that she would not avail herself of her access arrangements if the

first applicant was excluded.

        It appears that at some stage there was concern whether the

first applicant was, as a result of his mental health, able to act on

his own behalf and the Official Solicitor was brought in.  However a

consultant psychiatrist reported that the first applicant was not

disabled from acting on his own behalf and the Official Solicitor

withdrew from the proceedings.

        In October 1985, reasonable access was granted again to the

second applicant by the court, on condition that the child was not

brought into contact with the first applicant.  However, the second

applicant again failed to take advantage of this opportunity.

        On 11 November 1985, the court gave leave to place T. with

long-term foster parents.

        After 11 December 1985 apparently no access visit took place

until 13 June 1986.  On this occasion the first applicant accompanied

the second applicant and although he did not enter the room, he

apparently stayed at the window and according to the supervising

social worker, caused a commotion which distressed the child.

        The local authority subsequently applied to the High Court

which by order of 22 July 1986 terminated the second applicant's

access.  At a hearing on 12 November 1986, the High Court considered

an application by the local authority to place T. for adoption and a

cross-application by the applicants for custody or access.  The

applicants, as on previous occasions, were represented by counsel.

The judge heard evidence from the first applicant and the local

authority.  The judge also had before him a report by a consultant

psychiatrist dated 13 October 1986 which indicated that the first

applicant was not mentally ill but suggested that he has a personality

disorder.  The psychiatrist also described the first applicant as

being of relatively low intelligence, forceful, impulsive and

abrasive, with an immature outlook.  In his judgment, the judge

reviewed the previous proceedings and noted that access had been

withdrawn from the first applicant as a result of his behaviour, that

the second applicant had failed to make use of her access rights in

the absence of her husband and that the access was withdrawn from her

following an incident when the first applicant had accompanied her and

caused distress to T. by making commotion through a window.  He found

that their history of access was poor (no more than 7 occasions since

T.'s birth) and did not appear to show much commitment.  He concluded

that the child was with secure foster-parents, whom, as a result of

these circumstances and of the passage of time, he would regard as his

parents and that it was in the best interests of the child that this

security should not be disrupted.  He accordingly made a care order in

favour of the local authority and gave leave for T. to be placed for

adoption.  He refused access to the applicants but ordered photographs

to be provided every six months until adoption.  The applicants were

advised by counsel that an appeal would stand no prospect of success

and their legal aid certificate was accordingly discharged.

        On 8 July 1987, the second applicant gave birth to their

daughter Tm., who lives at home in the care of the applicants.

COMPLAINTS

        The applicants complain of a violation of their rights as

natural parents.  They complain that they have been deprived of

custody of and access to their own son.

THE LAW

        The applicants complain that they have been refused custody of

and access to their son, who has been made subject of a care order in

favour of the local authority and placed for adoption.  The Commission

has examined the applicants' complaints under Article 8 (Art. 8) of the

Convention which provides that:

        "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, in accordance with the established

case-law of the Commission and the European Court, that the decision

taken to place the applicants' son in care of the local authority and

to refuse any future access constituted an interference with their

rights to respect for their family life as protected by Article 8

para. 1 (Art. 8-1) of the Convention (see e.g.  Olsson v.  Sweden, Comm.  Rep.

2.12.86, paras. 127-129 and Eur.  Court H.R., W v. the United Kingdom judgment

of 8 July 1987, Series A No. 121-A, 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 the second

paragraph of Article 8 (Art. 8) and whether it is "necessary in a democratic

society" for one or more of those aims.

        The Commission recalls that the decisions taken in relation to

the applicants' son were made in the context of the wardship

jurisdiction of the High Court and finds that they were "in accordance

with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.  The Commission also accepts that the decision of the

judge on 12 November 1986 to refuse access and make a care order in

favour of the local authority was taken in the best interests of T.

and it accordingly finds that the interference pursued the legitimate

aims of protecting the health and the rights and freedoms of T.

        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 Convention 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 (see e.g.  Eur.  Court H.R., Handyside judgment of

7 December 1976, Series A No. 24, pp. 22-24, paras. 48-50 and Eur.

Court.  H.R., W v. the United Kingdom, loc. cit.).

        When determining whether or not the refusal of custody and of

access to T. was necessary, the Commission also observes that it is

not its task to take the place of the competent national courts and to

make a fresh examination of the facts and evidence.  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

Court has also established that certain procedural requirements are

implicit in Article 8 (Art. 8), in particular that, as regards decisions in

child-care matters, the parents must "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" (Eur.

Court H.R., W v. the United Kingdom, loc. cit., paras. 62-66).

        The Commission recalls that the High Court had heard evidence

from the first applicant, the Social Services and had a psychiatric

report concerning the first applicant.  The judge found that the

applicants had a poor history of access (only 7 occasions since birth)

which showed a lack of commitment on their part.  He noted that the

first applicant's turbulent behaviour had resulted in access being

withdrawn from him and that the second applicant, who acted in

complete submission to him, had tended not to avail herself of her

right to access visits in his absence.  He also recalled that the

second applicant's access had been terminated following an incident

when the first applicant accompanied her on a visit and caused

distress to T. by making a commotion through a window.  The judge

found that as a result of these circumstances and of the passage of

time T. regarded his foster-parents as his proper parents and that

any change would disrupt this security.

        The Commission considers that the reasons adduced to justify

the interference were both "relevant" and "sufficient".  The

Commission also notes that the applicants were parties in the wardship

proceedings and were able to participate in the various hearings

before the High Court, where they were represented by counsel.  The

Commission therefore finds that the applicants were afforded

sufficient opportunities to argue their point of view before the

courts and to influence the decisions taken.

        Accordingly, bearing in mind the margin of appreciation

accorded to the domestic authorities, the Commission finds that the

interference in the present case was not disproportionate to the

legitimate aim pursued and that it was justified as being "necessary

in a democratic society" for the protection of the child's health and

for the protection of rights of others, i.e. of the child, within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

        It follows that this 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.

Deputy Secretary to the Commission      President of the Commission

            (J. RAYMOND)                       (C.A. NØRGAARD)