Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11240/84

by Frank CAMPBELL

against the United Kingdom

The European Commission of Human Rights sitting in private

on 12 December 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

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 1984

by Mr. Frank Campbell against the United Kingdom and registered

on 13 November 1984 under file N° 11240/84;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 29 October 1985 and the observations in reply submitted

by the applicant on 22 March 1986;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows:

The applicant is a United Kingdom citizen, born in 1936.

He is a universal grinder by profession although he is presently

unemployed. He lives with his wife in London. Before the Commission

he is represented by Susan C. Hulton, legal director of Interights,

London.

I. Particular facts of the case

It appears that certain difficulties arose between the

applicant and the Inner London Education Authority concerning the

applicant's son A, who was born in 1971. The Education Authority

subsequently applied for a care order because of continuing concern

for the welfare of A owing to his persistent non-attendance at school.

On 25 October 1982 the Kensington and Chelsea Juvenile Court

decided to place A in a children's home for an assessment period

of one month.

On 22 November 1982 a care order was made in respect of A

under Section 1(2)(e) of the Children and Young Persons Act of 1969.

The Court found that A was in need of care, or control, which he was

unlikely to receive unless an order was made in respect of him and he

was to remain in the children's home where he had initially been

placed. The applicant lodged a notice of appeal against the Juvenile

Court's decision but withdrew his appeal before it was heard.

Under the care order A was taken from the custody of the

applicant and his wife into the care of the local education authority.

Following the order the local authority made arrangements for access

visits by the applicant and his wife on weekdays with A visiting his

parents at their home on Saturdays and Sundays. A did visit his

parental home at weekends but only the applicant availed himself of

the weekday offered, his wife finding the experience too upsetting.

Difficulties arose in the contacts between the applicant and

his son. The Government submit that the difficulties started in May

1983 when allegedly it was reported by local authority officials

concerned with A that he was unhappy about maintaining contact with

his parents. The applicant maintains that the difficulties did not

start until January 1984 when he experienced problems in communicating

with A, who on several occasions was not in the home on visiting

evenings.

It is clear, however, that the applicant obtained advice

during the summer of 1983 in relation to seeking the return of A to

him and his wife. Following the advice he received the applicant made

an application to the Juvenile Court for a discharge of the care order

according to Section 21(2) of the Children and Young Persons Act of

1969. The applicant's request for legal aid was refused by the Law

Society on 1 November 1983 and the application for the revocation of

the care order was refused by the Juvenile Court on 5 December 1983.

The applicant did not seek appeal against this decision nor has he

made any further application for a discharge of the care order.

The applicant continued to visit A but due to the problems

mentioned above these visits became more and more strained. It was

also reported by the applicant himself that in late 1983 there was an

incident of violence against A by his mother. Having regard to

these problems and the fact that A was to be starting school in early

1984, for which reason the applicant did not wish to interfere in any

way with the prospects for success of the education programme by

persisting with visits which might be distressing for A, the applicant

ceased visiting his son in January/February 1984. On 10 February 1984

A's mother wrote a letter to him and after receipt of this letter it

appears that A began refusing to see his parents.

In February 1984 the local authority suggested a meeting

between the applicant and his wife and the social worker taking care

of A. The meeting was scheduled to take place on 16 March 1984 but

the social worker was told by the applicant that he was unwelcome. By

letter of 21 March 1984 the social worker informed the applicant inter

alia:

"I regret your unwillingness to discuss (A) with me.

However I wish to state that I shall offer, as a matter

of course, to have a discussion with you every six months

prior to each Statutory Review. As (A's) next Review,

after this, will be in September I hope you will be

able to respond, at that time, to another approach from

me."

There was no contact between the applicant and his son until

June 1984 when the applicant, after a telephone call to the place

where A lived, sought to recommence his weekday visits. The local

authority offered a meeting and the meeting took place on 24 July

1984. At the meeting the applicant maintains that he was informed by

A's social worker that he could no longer visit, telephone or write to

A. The Government submit, however, that it was impressed upon the

applicant that contact should remain but that there was a need for

planned contact and a need to meet to plan such contact.

Referring to the above meeting the local authority by letter

of 26 June 1984 expressed the view that:

" ... planned arrangements for (A) to keep in contact with

both of you are essential to his commendable progress at

school and at (the children's home). We feel that

unnecessary feelings of rejection on your part and

disappointment on (A's) part can be avoided by planning the

contact as well as possible. For instance, you might call

at (the children's home) and find that (A) is away on holiday or on an outing.

It is in (A's) interest that we all make strong efforts to come together to

discuss his future contact with both of you. I wish to repeat my invitation to

you both to come to this office to meet Mr. W and me for this discussion."

A meeting took place on 1 August 1984 but the applicant

nevertheless felt that he was now barred from seeing his son and

complained on 18 September 1984 to the Director of Social Services

who, on 1 October 1984, replied:

"I have discussed the situation with the social worker (Mr.

M). It seems that Mr. M has been in contact with you and

has talked about (A's) contact with you and your wife. From

the records which have been kept I see that you and your

wife have not been able to agree to see Mr. M at your home.

In view of the Department's responsibilities there has been

a reasonable expectation that a discussion takes place

concerning (A's) contact with you. This expectation is very

much linked to the fact that on the last occasion at which

(A) visited there was an incidence of violence being used

against him.

I regret that you have not seen (A) during the last nine

months or so as you have been unable to accept a visit from

Mr. M which must precede this. You have been informed by

Mr. M and Mr. W of (A's) progress at school and the

encouraging advances he has made in other areas.

I am aware of your great love and concern for (A) and would

wish to help in whatever way possible to re-establish a

contact which relates to (A's) long-term needs. If you

think it would be of assistance I am prepared to meet you

and (your wife) at this office and discuss the basis on

which we can proceed.

I hope you can accept this offer and look forward to hearing

from you giving me some idea of the most suitable days and

times convenient for you."

Due to this development another meeting was arranged at the

Social Services Building on 25 October 1984 in order to clarify the

situation. The applicant was informed that only prearranged visits

with his son would be offered in the future, supervised by the

responsible social worker at the offices of the Social Services or at

the parents' home. Continuing review of the situation would follow

these visits and the wishes of A should be taken into consideration.

It was finally decided that the first visit should take place on

1 November 1984 at the Social Services Building.

The meeting took place but the applicant submits that it was

very unsuccessful. He therefore complained to the Social Services

about the responsible social worker whose presence he felt to have

been unnecessary and intrusive. Nevertheless a new meeting was

arranged on 16 November 1984, this time at the children's home but

otherwise under the same conditions. After these two meetings the

Government submit that A refused further visits unless and until his

mother retracted the statements made in her letter of 10 February 1984

mentioned above.

On 3 December 1984 the applicant's complaints against the

responsible social worker were dismissed. In his letter the Area

Officer of the Social Services wrote inter alia:

"Lastly, therefore, I come to your request for a

different social worker and your belief that this will

facilitate your 'starting afresh'. After careful thought

and examination of Mr M's objectives I find I am unable to

agree that the ends you seek will be brought about by the

means you advocate. Indeed, I think it important that for

the first time since the care proceedings (your wife) has

joined her voice with yours in signing the letter you

sent me. I do consider that this bodes well for the future

and hope that it is not long before (A) is able to meet you

both, albeit in the first instance on his terms in the

presence of his social worker."

There were no further visits arranged but certain contacts

between the local authority and the applicant. The situation was

described in a letter of 6 February 1985 to the applicant and his wife

from the local authority stating inter alia:

"Now the situation, (the applicant) insists, is one in which

he says there is no point in any further discussion with me

unless I am planning for (A's) return to live with you. In

the present situation, as I explained, this is not the

Department's plan. I again told you that a social worker

from the Fostering and Adoption Unit has been allocated to

pursue plans to obtain a foster family for (A).

We seem now to be in a position of stalemate concerning a

very important part of (A's) life: his contact, or lack of

it, with you both. It cannot be in (A's) interest to have

his uncertainty and anxiety unrelieved. This is a matter as

I told (you) I shall be discussing with my supervisor, Miss D."

The local authority held a review of the case on 1 April 1985

as a result of which it was agreed that quarterly visits to the

applicant and his wife should be offered with the acquiescence of A.

Such a supervised visit to the parental home was arranged for and took

place on 1 May 1985. The applicant and his wife did not attend or

participate in the review of the case. Nor were they informed of the

reasons for the decision taken. They subsequently conveyed to the

local authority the wish that they be allowed weekly or monthly visits

but by letter of 5 September 1985 the applicant was informed of "the

Review's view that a visit every three months seemed to offer benefits

to all concerned".

In accordance with the offer of quarterly access decided by

the local authority in April 1985 a visit for September 1985 was

arranged. The Government submit, however, that the visit was abandoned

at the applicant's son's own request and that he is at present still

refusing to visit his parents.

II. Domestic law and practice

The compulsory placing of a child in care by order of the Juvenile

Court under the Children and Young Persons Act of 1969

A local education authority, as defined in Section 114 of the

Education Act of 1944, has, by virtue of Section 2(8) of the Children

and Young Persons Act of 1969 ("CYPA 1969"), a duty under Section 2(2)

of the CYPA 1969 to apply to the Juvenile Court, which is a specially

constituted Magistrates' Court, for an order under Section 1(3) of the

CYPA 1969 in respect of a child who it appears to that local

education authority is of compulsory school age (within the meaning of

the Education Act of 1944) and is not receiving efficient full-time

education suitable to his age, ability and aptitude.

In the application before the court the local education

authority has to show:

a. that the child is of compulsory school age (within the meaning

of the Education Act of 1944) and is not receiving efficient full-time

education suitable to his ability, age and aptitude. By virtue of

Section 2(8)(b) of the CYPA 1969 this condition is deemed to be met if

it is proved that the child is a registered pupil at a school which he

is not attending regularly within the meaning of Section 39 of the

Education Act of 1944 and it is not proved he is receiving the

education mentioned in Section 1(2)(e);

b. that he is also in need of care and control and that he is

unlikely to receive it unless one of the orders mentioned in Section

1(3) of the CYPA 1969 is made.

Section 44 of the Children and Young Persons Act of 1933

provides that every court in care proceedings shall in a proper case

take steps to remove children from undesirable surroundings and to

secure that proper provision is made for their education and training.

The effect of a care order under Section 1(3)(c) of the CYPA

1969 is that the rights of the parents except the right to agree to

adoption and the right to influence the child's religious beliefs are

taken from the parents and vested in the local authority. The powers

and duties of local authorities with respect to children and young

persons committed to their care are contained in Section 10 of the

Child Care Act of 1980.

The care proceedings are, unless ground (f) in Section 1 of

the CYPA 1969 is alleged, civil proceedings and are governed by the

Magistrates' Courts (Children and Young Persons) Rules 1970

(S.I.1970/1972) and the law of evidence in civil cases applies

to such proceedings.

The parties to the proceedings are the local authority and the

child. Subject to his means the child is entitled to legal aid and

to be represented (Section 28(3) of the Legal Aid Act of 1974). It is

open to the child to have his parent conduct his case on his behalf

either directly or indirectly through a lawyer in which case the

parent can apply for legal aid on the child's behalf (Section 40(2) of

the Legal Aid Act of 1974). The child being of sufficient competence,

may decide that he wishes to be separately represented. Where a court

thinks there may be a conflict of interest between the child and the

parent, the court may make a legal aid order and appoint a solicitor

to act on the child's behalf. In that case the parent may be granted

legal aid. Legal aid will be granted if the interests of justice

require.

When the parent is not acting on behalf of the child he has

the right to attend the hearing and to give or call evidence

challenging allegations made against him by the local authority. In

practice the court would also allow the parent to cross-examine

witnesses on behalf of the local authority and to have separate legal

representation. The position has since May 1984 been clarified,

without prejudice to the court's inherent jurisdiction, as a result of

amendments to the Magistrates' Courts (Children and Young Persons)

Rules 1970 (S.I.1970/1972).

The child or parent on behalf of the child (except where the

parent has not represented the child in the Juvenile Court) may appeal

against the order to the Crown Court under Section 2(12) of the CYPA

1969. The Crown Court reviews the decision by way of a rehearing of

the case. The local authority has no general right of appeal where

no order is made under Section 1(3), or where the order made was not

the one sought, except on a point of law to the Divisional Court of

the High Court.

After a care order has been made, the child and the parent on

his behalf have a right under Section 21 of the CYPA 1969 to seek at

intervals of three months or, with the consent of the court, more

frequently, the discharge of the order or its variation to a

supervision order. A supervision order, which is dealt with in

Sections 11 to 19 of the CYPA 1969, will enable the child to live with

his parents but the child may be required by the order to comply with

instructions, for example to participate in certain activities, given

from time to time by the local authority which is the supervisor. The

parent and child have a right to appeal to the Crown Court against a

refusal of any application to discharge or vary a care order. Further

appeal lies to the Divisional Court by case stated with leave of that

court. If the point at issue is a point of law the parent and child

may go directly from the Juvenile Court to the Divisional Court and

thereafter to the Court of Appeal and in very rare cases and on a

point of law of general public importance to the House of Lords. The

same provisions as to separate representation and legal aid apply as

in relation to the original proceedings.

Termination or refusal of access in respect of a child placed

in care

In reaching any decision relating to the child in their care a

local authority have to give, by virtue of Section 18 of the Child

Care Act of 1980, first consideration to the need to safeguard and

promote the welfare of the child throughout his childhood and have so

far as practicable to ascertain the wishes of the child regarding the

decision and give due consideration to them having regard to his age

and understanding.

Since 30 January 1984, under the provisions of Section 12A to

D of the Child Care Act of 1980, a local authority may not terminate

or refuse to make arrangements for access to a child in their care

pursuant to (inter alia) a care order unless they give notice of the

termination or refusal to the parent in accordance with the Notice of

Termination and of Refusal Order 1983 (S.I.1983/1680). This notice

must inform the parent of his right to apply to the Juvenile Court for

an access order. The parent may then make a complaint to the Juvenile

Court, which may make such order as to access, subject to such

conditions with regard to commencement, frequency, duration or place

of access or to any other matter for which it appears to the court

that provision ought to be made in connection with the requirement to

allow access (Section 12C(3) of the Child Care Act of 1980). Appeal

from any such decision lies to the High Court (Section 12C(5)). The

order is subject to variation and discharge (Section 12D). A parent

applying for an access order is eligible to receive legal aid in

respect of representation.

Section 12G requires that the Secretary of State should

prepare and lay before Parliament a code of practice with regard

to access to children in care. The Secretary of State for Social

Security laid before Parliament such a code on 16 December 1983.

The code sets out "the basic principles on which local

authorities and other agencies should operate in promoting and

sustaining access and in the handling of decisions to restrict and

terminate access where that becomes necessary". Paragraph 11 of the

code reiterates the local authority's duty to give due consideration

to the child's wishes and feelings having regard to his age and

understanding and indicates that where a child is openly unwilling to

see his parents local authority staff should help resolve the

difficulties, but where these cannot be resolved the local authority

may have to conclude that a child cannot be forced unwillingly into

seeing a parent and that access has to be terminated.

Paragraph 13 of the code requires that access arrangements

should be kept under review and discussed with parents. Paragraph 15

requires that decisions on access should be explained to parents and

discussed with them.

As the regulation of access in respect of a child committed to

its care under Section 1 of the CYPA 1969 is a matter which has been

vested in the local authority by statute, the actions of the local

authority can be challenged by way of judicial review in the High

Court, if it acts improperly in the regulation of access. The

practice laid down in the statutory code as well as any special

extenuating circumstances would be matters for the High Court to

take into consideration in such review.

The relevant parts of the new legislation reads as follows:

"12A. Children to whom Part 1A applies

(I) Subject to sub-section (2) below, this Part of this Act applies

to any child in the care of a local authority in consequence -

(a) of a care order (including an interim order);

(b) of an order under Section 2(I) of the Matrimonial

Proceedings (Magistrates' Courts) Act 1960;

(c) of committal under Section 23(I) of the Children

and Young Persons Act 1969;

(d) of an order under Section 2(2)(b) of the Guardianship

Act 1973;

(e) of an order under Section 17(I)(b) of the Children

Act 1975 or Section 26(I)(b) of the Adoption Act

1976 (order on refusal of adoption order);

(f) of an order under Section 36(2) or 3(a) of the

Children Act 1975 (order on revocation of

custodianship order);

(g) of an order under Section 10(I) of the Domestic

Proceedings and Magistrates' Court Act 1978; or

(h) of a resolution under Section 3 above.

(2) This Part of this Act does not apply to a child in the care of

a local authority in consequence of an order made by the High Court.

12B. Termination of access

(I) A local authority may not terminate arrangements for access to

a child to whom this Part of this Act applies by its parent, guardian

or custodian, or refuse to make such arrangements unless they have

first given the parent, guardian or custodian notice of termination or

refusal in a form prescribed by order made by the Secretary of State.

(2) A notice under this Section shall contain a statement that the

parent, guardian or custodian has a right to apply to a court for an

order under Section 12C below.

(3) A notice terminating access shall state that access will be

terminated as from the date of service of the notice.

(4) A local authority are not to be taken to terminate access for

the purpose of this Section in a case where they propose to substitute

new arrangements for access for existing arrangements.

(5) A local authority are not to be taken to refuse to make

arrangements for the access for the purposes of this Section in a case

where they postpone access for such reasonable period as appears to

them to be necessary to enable them to consider what arrangements for

access (if any) are to be made.

(6) A notice under this Section may be served on a parent,

guardian or custodian either by delivering it to him or by leaving it

at his proper address or by sending it by post.

(7) For the purposes of this Section, and of Section 7 of the

Interpretation Act 1978 in its application to this Section the proper

address of a person shall be his last known address.

12C. Access orders - general

(I) A parent, guardian or custodian on whom a notice under Section

12B above is served may apply for an order under this Section (in this

Part of this Act referred to as an 'access order').

(2) An application under sub-section (I) above shall be made by way

of complaint to an appropriate juvenile court.

(3) An access order shall be an order requiring the authority to

allow the child's parent, guardian or custodian access to the child

subject to such conditions as the order may specify with regard to

commencement, frequency, duration or place of access or to any other

matter for which it appears to the court that provision ought to be

made in connection with the requirement to allow access.

(4) A juvenile court is an appropriate juvenile court for the

purposes of this Part of the Act if it has jurisdiction in the area of

the authority serving the notice under Section 12B above.

(5) An appeal shall lie to the High Court against any decision of

a juvenile court under this Part of this Act.

12D. Variation and discharge of access orders

(I) Where an access order has been made -

(a) the parent, guardian or custodian named in the order;

or

(b) the local authority,

may apply for the variation or discharge of the order.

(2) An application under this Section shall be made by way of

complaint to an appropriate juvenile court.

12E. Emergency orders

(I) A qualified justice of the peace may make an order under this

sub-section where he is satisfied that continued access to a child by

its parent, guardian or custodian in accordance with the terms of an

access order will put the child's welfare seriously at risk.

(2) Subject to sub-section (3) below, an order under sub-section (I)

above shall be an order suspending the operation of the access order

for 7 days beginning with the date of the order under sub-section (I)

above, or for such shorter period beginning with that date as may be

specified in that order.

(3) If during that period for which the operation of the access

order is suspended the local authority make an application for its

variation or discharge to an appropriate juvenile court, its operation

shall be suspended until the date on which the application to vary or

discharge is determined or abandoned.

(4) An application for an order under sub-section (I) above may be

made ex parte.

(5) A justice of the peace is a qualified justice of the peace

for the purposes of this Section if he is a member of a juvenile court

panel formed under Schedule 2 to the Children and Young Persons Act

1933.

12F. Safeguarding of interests of child

(I) A court -

(a) to which an application for an access order or

any other application under this Part of this Act

is made; or

(b) to which an appeal under this Part of this Act

is brought,

shall regard the welfare of the child as the first and

paramount consideration in determining the matter.

(2) In any proceedings before a court under this Part of this Act

the court may, where it considers necessary in order to safeguard the

interests of the child, by order make the child a party of the

proceedings.

(3) If the court makes the child a party to the proceedings, it

shall in accordance with rules of court appoint a guardian ad litem of

the child for the purposes of the proceedings unless it is satisfied

that to do so it is not necessary for safeguarding the interests of

the child.

(4) A guardian ad litem appointed in pursuance of this Section

shall be under a duty to safeguard the interests of the child in the

manner prescribed by rules of court.

12G. Code of practice

(I) The Secretary of State shall prepare, and from time to time

revise, a code of practice with regard to access to children in care.

(2) Before preparing the code or making any alteration in it the

Secretary of State shall consult such bodies as appear to him to be

concerned.

(3) The Secretary of State shall lay copies of the code and of any

alteration in the code before Parliament; and if either House of

Parliament passes a resolution requiring the code or any alteration in

it to be withdrawn the Secretary of State shall withdraw the code or

alteration and, where he withdraws the code, shall prepare a code in

substitution for the one which is withdrawn.

(4) No resolution shall be passed by either House of Parliament

under sub-section (3) above in respect of a code or alteration after

the expiration of the period of 40 days beginning with the day on

which a copy of the code or alteration was laid before that House; but

for the purposes of this sub-section no account shall be taken of any

time during which Parliament is dissolved or prorogued or during which

both Houses are adjourned for more than four days.

(5) The Secretary of State shall publish the code as for the time

being in force."

The above legislation, except the new Child Care Act 1980,

Section 12F(3) and (4), was brought into force on 30 January 1984, and

those provisions were brought into force on 27 May 1984 by the Health

and Social Services and Social Security Adjudiciations Act 1983

(Commencement No. 2) Order 1983, SI 1983 No. 1862, made under 32(2),

ante.

The above Section 12 inserts a new Part IA in the Child Care

Act 1980, Vol 50(I), p 1054 which implements proposals made by the

Government to provide natural parents and others with parental duties

with statutory rights of access to children who are in local authority

care, but, at the same time, enable authorities to exercise their

existing legal responsibilities towards children in their care. The

new provisions apply to all children in care with the exception,

firstly, of those who are there as a result of a High Court order (in

such cases the court already has power to make an access order)

(Section 12A(2) of the Act of 1980) and, secondly, in cases where

children are in voluntary care by virtue of Section 2 of the Act of

1980, Vol 50(I), p 1058 (where the child can be removed from care, and

where the authority has not got unrestricted power to terminate

access). In the latter case, however, the provisions may apply where

the child concerned, though originally in care on a voluntary basis

under Section 2, is subsequently the subject of a resolution under

Section 3 of the Act of 1980, Vol 50(I), p 1061, whereupon the

authority assumes parental rights and duties (Section 12A(I)(h) of the

Act).

The main features of these provisions may be summarised as

follows:

(i) existing arrangements for access may not be

terminated, and initial arrangements for access may

not be refused, unless notice of termination or

refusal has first been given to the child's parent,

guardian or custodian: termination of access does

not occur, for these purposes, if the authority

substitutes new access arrangements for the existing

arrangements (Section 12B(I), (4));

(ii) upon receipt of a notice terminating or refusing

access, the parent may apply to a juvenile court for

an "access order" (Section 12C(I), (2)). The order,

if granted, will require the authority to allow access

to the child and specify the frequency of visits

and other relevant conditions (Section 12C(3)): an

appeal lies to the High Court (Section 12C(5));

(iii) either a parent or the authority may apply to a

juvenile court for variation or discharge of an

order (Section 12D);

(iv) provision is made for the suspension of an access

order if continued access would put the child's

welfare seriously at risk (Section 12E);

(v) the court considering the application for an access

order or on appeal is to regard the welfare of the

child as the first and paramount consideration in

determining the matter (Section 12F(I));

(vi) the Secretary of State is required to prepare and

periodically revise a code of practice with regard

to access to children in care, and publish that code

(Section 12G).

COMPLAINTS

The applicant complains that the decision of the local

authority to restrict his contact with his son who is in their care,

and the manner in which that decision was made, violated his right to

respect for his family life guaranteed in Article 8 of the Convention.

He further complains that the procedure for deciding upon

access to his son was not in conformity with Article 6 para. 1 of the

Convention.

The applicant also complains that he did not have an effective

remedy before a national authority, as required by Article 13 of the

Convention, in respect of his complaint that the decision of the local

authority interfered with his right to respect for his family life.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 August 1984 and registered

on 13 November 1984.

The Commission decided on 1 July 1985 to bring the application

to the notice of the respondent Government and invite them to submit

written observations on the admissibility and merits. Having been

granted an extension of the time-limit the Government submitted their

observations on 29 October 1985.

On 7 November 1985 the President, acting in accordance with

Rule 7 of the Addendum to the Commission's Rules of Procedure, decided

that legal aid should be granted to the applicant.

The applicant was invited to submit observations in reply to

those of the respondent Government by 24 February 1986. Having been

granted an extension of this time-limit twice the applicant submitted

his observations on 22 March 1986.

On 17 July 1986 the Commission decided to adjourn the

examination of the case pending the outcome of the five child care

cases brought before the European Court of Human Rights. The Court

pronounced its judgments in these cases on 8 July 1987 (Eur. Court

H.R., Series A no. 120).

SUBMISSIONS OF THE PARTIES

The Government

Article 6 of the Convention

The present application discloses no issue arising under

Article 6 para. 1 in respect of the proceedings before the Juvenile

Court. Article 6 para. 1 is only applicable to the present case if a

parent's claim to access to his child constitutes a civil right within

the meaning of that Article. The jurisprudence of the Commission

indicates that rights of access and custody may fall within Article 8

of the Convention - see eg. No. 7911/77, Dec. 12.12.77, D.R. 12 p. 192

(193) where the Commission said: "in principle a parent always has a

right of access to his or her child under paragraph 1 of Article 8 of

the Convention". This does not necessarily mean that such a right is

"a civil right" for the purposes of Article 6 para. 1 and the

Government make no admission as to that. But, even assuming that it

can be a civil right for those purposes, it is not a right that has a

separate continuing existence in a situation where the bundle of

parental rights of which it forms part has been lawfully transferred

to another party.

Thus in this case the local authority, following the care

order made by the Juvenile Court under the CYPA 1969, stood in the

shoes of the parents and was entitled to exercise the whole bundle of

parental rights including the right to regulate and supervise the

child's association with other persons in the interests of the child.

It follows that the persons the local authority might wish to restrict

having access to the child in its interests could include its natural

parents. This is likely to be necessary when visits by the natural

parents prove to be disruptive to the child's welfare and, as in the

present case, the child plainly indicates that he does not wish to

see his parents. The parents' rights of access cannot be considered

in such cases as separable from the parental rights as a whole.

Support for this view can be drawn from the Commission's

jurisprudence in relation to a parent's right to determine a child's

education. In Dec. No. 7911/77 (cited above) the Commission decided

that the applicant had lost his right to determine his child's

education because that was "an integral part of the right to custody

which in the present case has been removed from the applicant by the

Swedish courts". In a more recent case (No. 9867/82, Dec. 7.12.82,

unpublished), where the applicant had complained that his former wife

had been permitted to remove his children to South Africa to be

brought up in a society to which he objected, the Commission reaffirmed

the dictum in No. 7911/77 quoted above and went on to say:

"Similarly it is normally for the parent having custody to

determine more broadly the mode of the child's upbringing

and to assess the consequences of taking up residence in a

given society."

In just the same way the lawful transfer to the local

authority of all the rights of a parent mean that the rights forming

an integral part of the parental rights transferred, such as the

rights to custody and access, are for the local authority as custodial

parent to determine. The transfer of all the parental rights may be

challenged, and was so challenged in the present case in the

proceedings for the care order under Section 1(2) of the CYPA 1969 and

by the subsequent application for the discharge of that order under

Section 21 of the CYPA 1969.

If, however, contrary to the view taken above, Article 6

para. 1 is applicable, the Government submit that no breach of the

Article has occurred. The hearing for which Article 6 provides was

afforded in the opportunities, of which the applicant at least partly

availed himself, for challenging the care order itself and seeking its

revocation. On both occasions when matters relating to the

applicant's son were before the Court, that is the proceedings for a

care order on 22 November 1982 and the proceedings for its discharge

on 5 December 1983, there was a full hearing in which the applicant

had the opportunity to participate.

As regards the applicant's opportunities to challenge the

access arrangements themselves, the Government would point out that

prior to January 1984 the applicant had unrestricted access to his

son. As regards the arrangements which the local authority sought to

make for the visits of the applicant to his son since 1984, the local

authority has acted subject to the code of practice with regard to

access to children in care laid before Parliament by the Secretary of

State for Social Security on 16 December 1983. If the authority had

terminated access or refused to make arrangements for it in accordance

with Section 12 of the Child Care Act of 1980 it would have been open

to the applicant to apply to the Juvenile Court for an order for

access. If the applicant had had a complaint that the authority was

not complying with the provisions of the Code in making arrangements

for access, it is submitted that he could have challenged the local

authority's conduct in the High Court by way of an application for

judicial review. This he did not do.

It is accordingly submitted that if, which is not admitted,

the applicant's claim to access is a "civil right" within the meaning

of Article 6 para. 1, the procedures available to the applicant for

the determination of that right are in conformity with that Article.

Article 8 of the Convention

Paragraph 1 of Article 8 prohibits in principle, and subject

to the provisions of para. 2, interference with an existing family

unit. Denial of access to a parent, for example, may constitute

interference under Article 8 para. 1. It may however be justified

under the exception in para. 2.

The history of this case shows that until January 1984 the

applicant and his wife had unlimited access to their son. Thereafter

for some five months the applicant stopped visiting his son of his own

volition. The local authority during this period made efforts to

restore the access arrangements and discussed the child's future needs

and requirements with the applicant. Subsequent to the applicant's

application to the Commission, the abandonment of A's visit for

September 1985, arranged as a result of the review of the case by the

local authority in April 1985, was at A's own request; he is still

refusing to visit his parents. The local authority are continuing

their efforts to resolve this situation.

It is therefore denied that the local authority prevented the

applicant having access to his son. Of his own volition the applicant

ceased, albeit temporarily, visiting his son. Thereafter the son has

expressed a desire not to see his parents.

Under Section 18 of the Child Care Act of 1980 and the code of

practice laid before Parliament on 16 December 1983 pursuant to

Section 12G of the Child Care Act of 1980, the local authority have a

duty to give due regard to the wishes and feelings of a child in their

care having regard to his age and understanding. It must be pointed

out that the child at the centre of this dispute is now 16 years old

and of good intelligence. The local authority have sought to resolve

the problems relating to access and made considerable efforts to

discuss these difficulties with the applicant and his wife in

accordance with the code of practice. It is therefore submitted that

there has been no interference with the applicant's right to respect

for his family life.

If contrary to the Government's submission it is found that

the arrangements made by the local authority interfere with the

applicant's right to family life under Article 8 para. 1, this

interference was justified by the exceptions set out in paragraph 2

of Article 8, in particular the protection of the child's health.

The health or morals of a child include his psychological health and

well-being and this requires that he be brought up in a stable

environment free from conflict and tension. The child has his own

"rights and freedoms" under Article 8 to be brought up in such an

environment. Public authorities have to maintain a balance between

the rights of either party, and the access of the parent may have to

be stopped or restricted in order to protect the rights and freedoms

of the child. Hendriks v. the Netherlands, Comm. Report 8.3.82, D.R.

29 p. 5 exemplifies the Commission's consistent jurisprudence in

stating that "in assessing the question of whether or not the refusal

of the right of access to the non-custodial parent was in conformity

with Article 8 of the Convention, the interests of the child

predominate. The interference is therefore justified when it has been

made for the protection of the health of the child". In its recent

decision on admissibility in Application No. 10148/82 (Dec. 14.3.85,

to be published in D.R. 42) the Commission stated:

(provisional translation)

"... having regard to Article 8 para. 2, when as in the

instant case there is a serious conflict between the

interests of the child and those of one of his parents which

can only be resolved to the detriment of one of these

parties the interests of the child must prevail. In the

eyes of the Commission there is nothing to show that the

withdrawal of the applicant's right of access was not

necessary in the essential interests of the child."

Much of the jurisprudence of the Commission relating to

Article 8 in respect of the custody of or access to children concerns

children whose parents were divorced or living apart under judicial

separation, which was not the situation in the present case.

Nevertheless, it is submitted that that jurisprudence lends support to

the principle that paragraph 2 of Article 8 leaves a wide margin of

appreciation to domestic courts or authorities, before whom questions

of access or custody are raised, to decide those questions in the

light of what is necessary to protect the well-being of the child,

including his mental and emotional health, and that it is the child's

interests that predominate.

In the light of these principles the Government submit that,

on the facts of the present case, there is no appearance of a violation

of Article 8.

Article 13 of the Convention

The complaint raises the same issues as does the complaint

under Article 6 para. 1. The right of access was an integral part of

the rights transferred as a whole to the local authority by the care

order made by the Juvenile Court in November 1982. There was a right

to appeal against the care order. Whilst the applicant lodged notice

of an appeal he subsequently withdrew his appeal. In addition there

was the right to seek revocation of the care order. The applicant

unsuccessfully sought such revocation in December 1983 and did not

appeal. Further, applications for subsequent discharge of the order

or for a supervision order could have been made but the applicant has

not made any such further applications. The applicant could also

challenge in the High Court the local authority's conduct on access

but has not done so. It is accordingly submitted that the applicant

had an effective remedy in compliance with Article 13 of the

Convention.

The Applicant

Article 6 of the Convention

The first question which arises is whether a parent's right of

access to his child constitutes a "civil right" within the meaning of

Article 6 para. 1.

Under English law, in disputes between divorced or separated

parents, the party who does not have custody of his or her child has a

right to apply to the civil courts for a determination as to whether

or not his or her right of access should be granted. By definition,

therefore, a parent's right of access would appear to be a civil right

within the meaning of Article 6 para. 1.

This would also appear to be the view taken by the Commission

in the case of Hendriks v. the Netherlands (Comm. Report 8.3.82, D.R.

29 p. 5) in which it examined the compatibility with Article 6 para. 1

of the decisions of the Dutch courts denying a father's access to his

child.

The case law relied upon by the Government to the effect that

access may be considered under Article 8 of the Convention does not

preclude its also being considered as a civil right under Article 6

para. 1.

Nor is this civil right extinguished, as the Government

contend, upon the making of a care order and the transfer of parental

rights to the local authority. The notion, upon which the Government

rely, that all parental rights, including access, can be regarded as

one "bundle" cannot be satisfactorily adopted as a description of the

position under English law. By definition, access is the right which

remains to the parent who has been deprived of custody. It must,

therefore, of necessity have a separate and continuing existence to

those rights enjoyed by the custodial parent. This is well

illustrated by the jurisdiction of the English courts both in

matrimonial cases and under the guardianship legislation, where

separate orders are made relating to custody and access. A divorced

or separated parent having the custody of a child does not have the

power to obliterate the other parent's right of access. The

non-custodial parent has the right to a fair and public hearing to

determine his or her right.

The Government draw support for their view from the

Commission's jurisprudence to the effect that a non-custodial parent

may lose the right to determine a child's education or the country in

which the child resides. These cases are clearly distinguishable from

the present case which concerns solely the question of access. That

custody and access are two distinct legal concepts is clearly

recognised in the Commission's jurisprudence which holds that the

justification for the award of custody to one parent rather than

another cannot be automatically relied upon as well for the denial of

the right of access to the latter. Very strong arguments indeed have

to be put forward for the justification of the complete cutting of the

ties between a parent and child (cf. No. 172/56, Dec. 20.12.57,

Yearbook 1 p. 211; No. 7911/77, Dec. 12.12.77, D.R. 12 p. 192 and

Hendriks v. the Netherlands, Comm. Report cited above).

The applicant submits that the same right of access must be

recognised where the custody of the child is in the local authority or

exists between spouses in matrimonial proceedings. The result

otherwise would be analogous to providing in matrimonial proceedings

that, where one parent applied for custody of the child and succeeded,

he or she would then also have the right to declare unilaterally that

the other parent was not entitled to access. The manifest unfairness

of such a result is clear.

The second question which arises is whether the procedure for

deciding upon access to the applicant's child is in conformity with

Article 6 para. 1.

It is clear that the local authority is not itself an

independent and impartial tribunal within the meaning of Article 6

para. 1.

Nor can it be accepted that the question of access was the

subject of judicial control in this case either when the Juvenile

Court considered, on 22 November 1982, whether or not to make a care

order in respect of the applicant's child, or when it considered, on

5 December 1983, an application for discharge of the care order. The

test applied by the Juvenile Court was whether or not one of the legal

criteria for taking a child into care had been established. The Court

did not have the opportunity to consider the question of access at

all.

With regard to the possibility of applying to the Juvenile

Court for an access order under Section 12 of the Child Care Act of

1980, this right only arises (as the Government also observe) if a

decision is taken to "terminate" or "refuse" access; it does not arise

if access is merely "restricted", as in this case.

With regard to the possibility of challenging the local

authority's conduct in the High Court by way of an application for

judicial review, it is clear from the House of Lords decision in A. v.

Liverpool City Council (1982) A.C. 363 that the Court will only

interfere with decisions taken in relation to children in care if the

local authority is shown to be acting outside its statutory powers, or

not to be exercising them in good faith, or if it has executed its

discretion improperly, or if there is evidence that the authority did

not consider all the matters relevant to the exercise of its

discretion.

Moreover, in practice, it is extremely difficult to mount a

case. Decisions relating to access and its determination are taken by

case conferences from which the parents are excluded, and the

conferences are not required to give any reasons for their decisions.

In these circumstances, it is usually impossible for a parent to

discover whether the local authority has gone through all the

necessary procedures or whether it has taken account of extraneous

circumstances. Furthermore, the courts are reluctant to order the

disclosure of case records: Gaskin v. Liverpool City Council (1980) 1

W.L.R. 549.

In this case, access has not been terminated but simply

considerably restricted. Nor is it alleged that the local authority

has acted illegally. As a result, the applicant has not had any

opportunity to have the local authority's decision to restrict his

access to his son reviewed by a court. The applicant respectfully

requests the Commission to conclude that, in the circumstances of the

present case, Article 6 para. 1 has been breached.

Article 8 of the Convention

The first issue under Article 8 is whether English law provides

the requisite legal safeguards to ensure the "respect" for family life

guaranteed in Article 8 para. 1.

The applicant submits that English law governing care

proceedings constitutes in itself a violation of Article 8 para. 1

in two respects. First, it does not provide the necessary legal

safeguards to ensure that contact exists as a matter of right between

a parent and his child who is in the care of a local authority. It is

submitted that such a right of contact is guaranteed by Article 8

para. 1 in the same way that it is guaranteed to a divorced or

separated parent who does not have custody. While it is acknowledged

that the exercise of the right of contact may be suspended, inter

alia, when the child's overriding interest so requires, there must be

legislation which recognises and guarantees this right in the first

place.

There is no such right of contact secured under English law to

parents whose children are taken into care. Section 1(2) of the

Children and Young Persons Act of 1969 merely authorises the Juvenile

Court to make an order committing a child to the care of the local

authority if certain conditions are satisfied. The Court has no power

to impose conditions on the making of a care order (specifying, for

example, that the local authority should allow unrestricted access to

the child's parents). The question of access falls exclusively to be

determined by the local authority in the exercise of its broad

discretion.

The second manner in which English law fails to accord the

requisite "respect" for family life guaranteed by Article 8 para. 1 is

the broad, largely unreviewable discretion accorded to the local

authority to make decisions concerning parental contacts. The

applicant submits that this discretion and the manner in which it was

exercised in the present case failed to provide the necessary legal

safeguards required by Article 8 para. 1.

Under English law, the local authority, in whose care the

applicant's son was and remains, was under a general duty to give

first consideration to the need to safeguard and promote his welfare

(Child Care Act of 1980, Section 18(1)). This approach necessarily

left a considerable discretion to the local authority as to how this

principle should be applied. The discretion included questions which

were crucial both for the applicant's son's future and for the

applicant's relationship with him. In particular, the local authority

had the power to determine whether and in what circumstances to allow

the applicant and his wife continued access to their son. The local

authority's discretion extended to making the decision as to when and

how fully the applicant and his wife should be informed that the

options of restricting access and placing their son with foster

parents were being discussed. It also extended to making the

determination as to whether the parents should participate in the

discussions.

In this case, the applicant and his wife had an unrestricted

right of access to their son between November 1982 and December 1983.

That right was restricted in July 1984 to prearranged, formal,

supervised visits and in March 1985 to fixed quarterly visits. They

were neither involved in the decision to restrict access nor informed

of the reasons for the restriction.

The fact that a local authority can increasingly restrict a

parent's access to his child is of enormous significance; for the

authority may then be able to place the child with foster parents who

might ultimately adopt him, on the basis that this serves the child's

best interests. The applicant submits that this broad discretion is

contrary to the rule of law embodied in the Convention.

The code of practice concerning access to children in care,

laid before Parliament on 16 December 1983, goes some way to

controlling the manner in which local authorities act in reaching

decisions. However, it falls short of constituting the requisite

legal safeguard required by Article 8 para. 1 in two respects. First,

the code of practice is simply an administrative directive. Its legal

status is unclear. Secondly, it does not reduce in any way the scope

of the local authority's discretion or render it subject to any

greater judicial oversight.

For these reasons, the applicant submits that English law does

not provide the necessary legal safeguards to ensure the "respect" for

family life guaranteed in Article 8 para. 1. Nor did the manner in

which the local authority exercised its decision-making functions

contain sufficient safeguards to show such respect for the applicant's

family life.

If the Commission is of the view, which the applicant

disputes, that such safeguards were not lacking, the applicant submits

that there was an interference with his right to respect for his

family life which was not justified under Article 8 para. 2.

From the time that his son was taken into care until December

1983, the applicant visited him regularly each evening at the

children's home. A, in turn, visited his parents' home at weekends.

In July 1984, however, the applicant was informed that any

further contact would be conditional upon the carrying out of a home

visit by A's social worker. Further, he was informed that only

formal, prearranged visits with his son would be allowed to take place

in the future, supervised by the social worker at the offices of the

Social Services or at the parents' home.

The applicant was subsequently informed that the local

authority had decided at a case conference on 1 April 1985 that the

applicant and his wife should be offered quarterly visits with the

acquiescence of their son. This decision was contrary to the parents'

wishes: they had requested that they be allowed weekly or monthly

visits.

The applicant's views were not taken into account in reaching

those decisions, decisions which were taken in camera. Nor was he

apprised of the reasons for the decisions.

These decisions restricting the applicant's contact with his

son constitute a clear interference by the authorities with the

applicant's right to respect for his family life, a constituent

element of which, in the case of divided families, is the right of

access.

The applicant does not dispute that the local authority had

the legal power to make the decision it did. Indeed, it is for that

reason that the remedy of judicial review was not available to him to

challenge the decision.

The applicant does not dispute that the restriction had the

legitimate aim of protecting the child's health, which includes his

psychological health and well-being.

The criteria for establishing whether an interference is

necessary in a democratic society are well established in the

Commission's case law. In the context of access cases, the Commission

has made it clear that the child's interests must take precedence over

a parent's interests even to the extent that the latter may be refused

access to his or her child (Hendriks v. the Netherlands, Comm. Report

8.3.82, D.R. 29 p. 5).

In this case, the child's interests have, apparently, been

given such priority. However, the process by which the local

authority determined what was in the child's interests is open to

severe criticism. There is no indication whatsoever of the factors

that the authority took into consideration and the weight it gave to

them in arriving at the conclusion that restricted access was indeed

in his interests.

The Government contend that the restriction of access was

justified for the protection of the child's psychological health and

well-being which requires that he be brought up in a stable

environment free from conflict and tension.

The creation of tension within the family cannot, however, in

itself warrant a restriction of access. In determining that the

child's interests lie in his protection from psychological stress, the

Government have taken a static approach to the consideration of his

best interests. They have not given any consideration to the prospect

that it may in fact be in the child's best interests to maintain

closer contact with his natural father notwithstanding that such

contact may cause some difficulty for all concerned.

Although contact remains permissible under the present

circumstances, it has been so reduced that there is a very real danger

that it may be terminated completely and that, subsequently, the

applicant's son may be placed with foster parents on the grounds that

close family ties have not been maintained.

The applicant submits that, although the interference with his

family life pursued a legitimate aim, it was disproportionate and did

not correspond with a pressing social need, and so was not necessary

in a democratic society. The applicant respectfully requests the

Commission to conclude that, in the circumstances of the present case,

Article 8 has been breached.

Article 13 of the Convention

The issue in the present case is whether such a remedy was

available to the applicant in respect of his complaint that the

decision of the local authority to prevent or restrict his contact

with his son interferes with his right to respect for his family life.

The applicant submits, and this is the essence of his

complaint, that he had no opportunity for his claim to be examined by

a national authority conforming to the requirements of Article 13

which was able to examine the merits of his complaint.

The Government contend that there were four potential remedies

available to the applicant:

1) the right to appeal against the care order;

2) the right to seek revocation of the care order;

3) the right to seek a discharge or variation of the care order;

4) the right to seek judicial review in the High Court of the

local authority's conduct on access.

The first three alleged remedies do not, however, give rise to

an examination of the question of access at all. The Juvenile Court

at first instance and the higher courts in care proceedings simply

make a decision concerning the question of the assumption of parental

rights. The courts do not consider the question of terminating or

restricting parental access to children. It is not at the stage where

a care order is made or confirmed that access is taken away. Rather,

such a decision is made by the local authority in the exercise of its

broad discretion to manage the child's life.

With regard to the availability of a remedy to challenge the

lawfulness of the local authority's decision by way of judicial

review, it is submitted that this is so severely limited as not to

constitute an effective remedy within the meaning of Article 13. The

courts will only review the exercise by a local authority of its

statutory powers if the applicant can discharge the heavy onus of

showing that the authority has contravened the law by acting in excess

of the powers which Parliament has conferred on the authority

(Associated Provincial Houses Ltd. v. Wednesbury Corporation (1948)

1 K.B. 223, 234 per Lord Greene M.R.; Re W. (Minors Wardship):

Jurisdiction (1980) Fam. 60, 70 per Braine L.J.).

It is clear from English case-law that the remedy of judicial

review is not intended to take over from local authorities the powers

and discretions vested in them by law, and to substitute the courts or

the bodies making the decisions. It is intended, rather, to see that

local authorities use their power in a proper manner (Chief Constable

of the North Wales Police v. Evans (1982) 1 W.L.R. 1155, 1160 per Lord

Hailsham L.C.). It follows that the courts will not interfere with a

bona fide exercise of a statutory discretion unless the decision is so

unreasonable that no reasonable authority could have come to it

(Associated Provincial Picture Houses Ltd. op. cit., at 228-229).

The House of Lords has held that the court will interfere with

decisions taken in relation to children in care only to the same

extent that it will review any other administrative decision of a

local authority (A. v. Liverpool City Council (1982) A.C. 363, 372,

377). It would, therefore, be incumbent upon the applicant to show

that, in restricting access, the local authority had acted outside its

statutory powers, not exercised them in good faith, exercised its

discretion improperly, or failed to consider all the matters relevant

to the exercise of its discretion.

In practice, it is exceedingly difficult to mount such a case

as the local authority is not required to give reasons for its

decisions regarding access, and the courts are reluctant to order the

disclosure of case records (Gaskin v. Liverpool City Council (1980) 1

W.L.R. 549).

It was expressly in response to the complaint that the courts

would generally refuse to review decisions to terminate access that

the Government agreed in 1983 that there was a need to improve

standards of practice and issued a code of practice dealing with

access to children in care. (Hansard (H.C.) February 17, 1983, vol.

37, col. 561.)

Further, the Government were persuaded to accept legislation

giving a parent a right to apply to the Juvenile Court if access to

his child was refused or terminated (ibid., cols. 561-4).

This new legislative remedy introduced on 30 January 1984 is,

however, limited in scope and of no application to the applicant since

it gives a right only where there has been a total termination of

access. The case of A. v. Liverpool City Council still prevents

parents of children in care from having a decision which is not a

"termination" of access judicially reviewed on its merits.

The applicant respectfully requests the Commission to conclude

that, in the circumstances of the present case, Article 13 has been

breached.

THE LAW

The applicant has complained that the decision of the local

authority to restrict his contact with his son who is in their care,

and the manner in which that decision was made, violated his right to

respect for his family life guaranteed in Article 8 (Art. 8) of the Convention.

He has further complained that the procedure for deciding upon access

to his son was not in conformity with Article 6 para. 1 (Art. 6-1) of the

Convention. The applicant has finally complained that he did not

have an effective remedy before a national authority, as required by

Article 13 (Art. 13) of the Convention, in respect of his complaint that the

decision of the local authority interfered with his right to respect

for his family life.

Regarding Article 8 (Art. 8) of the Convention the Government have

maintained that neither the procedures concerning the decision-making

machinery relating to parental access nor any other steps taken by

the local authorities interfered with the applicant's rights under

Article 8 (Art. 8) of the Convention. The local authority sought to resolve

the problems relating to access and made considerable efforts to

discuss the difficulties with the parents in accordance with the

general guidelines now applicable. In the alternative, any possible

interference with Article 8 para. 1 (Art. 8-1) of the Convention was justified by

the exceptions set out in para. 2 of that provision.

The Government have also contended that the present

application does not disclose any issue arising under Article 6

para. 1 (Art. 6-1) of the Convention, since the local authority, following the

care order made by the Juvenile Court under the CYPA 1969, stood in

the shoes of the parents and was entitled to examine the whole bundle

of parental rights. In the alternative the Government have submitted

that the procedures and remedies available to the applicant for the

determination of the right of access were in conformity with Article 6

(Art. 6) of the Convention. Likewise, the Government have contended that the

applicant had an effective remedy in compliance with Article 13 (Art. 13) of the

Convention, if that provision were held to apply.

The Commission has taken cognizance of both parties'

submissions and has made a preliminary examination of the applicant's

complaints in the light of the judgments of the European Court of

Human Rights of 8 July 1987 in the cases of O, H, W, B and R v.

United Kingdom (Eur. Court H.R., O, H, W, B and R judgments of 8 July

1987, Series A no. 120). It has come to the conclusion that the

applicant's complaints raise serious issues as to the application and

interpretation of the Convention, and that these issues can only be

determined after an examination of their merits.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C.A. NØRGAARD)

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CAMPBELL v. THE UNITED KINGDOM

CAMPBELL v. THE UNITED KINGDOM

LEXI