Lexploria

AS TO THE ADMISSIBILITY

Application No. 12451/86

by Winifred ADAMSON

against the United Kingdom

The European Commission of Human Rights sitting in private on

13 July 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

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 5 June 1986

by Winifred ADAMSON against the United Kingdom and registered

on 23 September 1986 under file No. 12451/86;

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 facts as they have been submitted on behalf of the

applicant by her husband, acting as her representative, may be

summarised as follows:

The applicant is a British citizen, born in 1913 and living in

Cambridge. The applicant is a great grandmother and has three great

grandchildren, A, a girl, born on 6 October 1978, B, a boy, born on

19 November 1982 and C, a boy born on 21 October 1985. The father

of the children, the applicant's grandson, married the mother on

25 February 1978. They were aged 19 and 17 respectively at the time

of the marriage.

Both the mother and father came from a background which caused

them both some stress. The father was in the Navy at the time of the

marriage. During the mother's first pregnancy she suffered from two

epileptic fits, and after the birth of A she suffered a further attack

of epilepsy.

The mother and father had certain difficulties with their

parents, and for a period of time after the birth of A they lived with

the applicant.

Within three months of the birth of A, the mother became

pregnant again, and accepted advice to have the pregnancy terminated

and had an abortion. For a period of fifteen months after the birth

of A, the mother suffered post-natal depression. The father, having

left the Navy, became unemployed. In January 1979 the Social Services

Department's attention was drawn to the family following a report that

A had been left unattended. The Social Services Department, after

making various enquiries, concluded that A was being adequately looked

after.

When the father eventually found work the mother became more

depressed, and on occasions when A wanted feeding, she would not feed

her. A did not, however, suffer from malnutrition as a result of

this. In January 1980 the mother and father were offered a council

flat, the state of which increased the mother's depression. She asked

the Social Services to take A into care for two days to allow her the

opportunity to clear up the flat, but was informed that it would not

be a good idea for the child to be taken temporarily into care.

On 23 January A had a bad crying patch which kept the mother

up late that night. The mother became frustrated and picked A up and

threw her into a chair which she bounced out of, and as a result

received a head injury. A was taken to the hospital and kept there as

the head-injury was thought to be serious.

On 28 February 1980, under Section 1 of the Children and Young

Person's Act 1969 which provides for care orders in cases of

impairment of development of health or of ill-treatment, interim care

and control of A was granted by a Juvenile Court to the County

Council, who administered the care and control of A through their

Social Services Department. They placed A with foster parents, the

foster mother being a trained nurse. Access was permitted to the

mother and father from March 1980 for one hour every month.

On 12 May 1980 the mother pleaded guilty to causing A grievous

bodily harm and was put on probation. The court took the view that

this was not the classic baby battering syndrome, but was a sudden and

tragic incident.

The mother and father attempted to have the care order

revoked. Their application to the Juvenile Court was unsuccessful and

in February 1982 they appealed to the Crown Court. The Crown Court

discharged the Care Order and returned A to the mother and father. A

Supervision Order was made in favour of the County Council. The

foster parents issued wardship proceedings, supported in this by the

County Council, contending that it was not in A's best interest to

return to her mother and father because of the trauma of the return,

taking into account also that A had been left with some residual brain

damage. The result of this hearing was that care and control was

granted by the judge to the County Council, and access for the mother

and father was given, amounting to five and a half hours per

fortnight.

On 19 November 1982 a second child, B, was born to the mother

and father.

During the course of 1982 the foster parents applied to the

High Court in the wardship proceedings, seeking care and control of A,

with the County Council having supervision, and with no access being

granted to the mother and father. The mother and father sought to

have the child returned to them with the County Council supervising.

The wardship hearing took place in Janury 1983. The judge

took into account a considerable amount of professional evidence

before pronouncing the judgment. The judge accepted evidence that A

needed a strong, warm, relaxed environment in which to live and that

it would be traumatic for her to be moved, this trauma perhaps

exacerbated by the injury she had suffered. The judge found the

foster parents to be very responsible and caring people. With regard

to the mother and father, the judge stated "when (A) had to leave

them, their marriage was at a stage where they were having rows, their

accommodation was bad and they were surrounded by debts and it is a

matter of admiration that these two very young and immature people

have managed to put their home into a clean and attractive state and

keep going together with very little help from relatives. One can

understand that they feel that they are well equipped to have (A) back

with them."

The judge, however, considered that the professional

witnesses' evidence was all one way and that A should remain with the

foster parents, and correspondingly awarded them care and control of A

with a supervision order granted to the County Council. Access to

the mother and father was granted once every six weeks for a period of

six hours.

The mother and father were advised by counsel not to appeal

against this decision as their chance of obtaining care and control

were minimal. There was, however, an attendant danger that any appeal

would be met with a cross-appeal on the question of access, and in

this, counsel considered that there was a danger that the access

arrangements might be reduced.

The applicant, who had previously had contact with A, wrote to

the County Council, requesting access to her great granddaughter.

This request was turned down on 10 September 1980 on the basis that A

had not reacted well to previous visits by relatives. The County

Council informed the applicant that access for the parents was to be

limited and that no other relatives were to be permitted to have

access.

Following the court hearing in January 1982 in which care and

control of A was vested in the foster parents, the applicant wrote to

the foster parents, requesting access to A. The foster parents

replied that it was not in A's best interests to have any additional

access visits, but that the applicant could see A during any normal

access granted to the mother and father. The foster parents, however,

agreed to allow an extra half hour for one access period a year so

that the applicant could see A without imposing on the mother and

father's time with the child.

The applicant wrote to the County Council, a member of

Parliament, the Prime Minister, seeking some avenue for obtaining

access to A, all of which proved futile. The applicant instructed

solicitors who attempted to obtain legal aid on her behalf. The Law

Society, the administrators of the legal aid system, advised the

applicant's solicitors to invite the applicant to withdraw the

application for legal aid in the light of counsel's earlier advice

given to the parents that further proceedings were likely to adversely

affect access, rather than allow further access.

In January 1984 the applicant was informed by the mother and

father's social worker that she could join them on the next access

visit, but that she should not join them on any of their later visits

as it was important for the father and mother to have as much time as

possible with A. The social worker concerned also advised the

applicant that she should go to court to seek separate access.

The applicant approached the Magistrate's court concerning

wardship proceedings and was advised by the Magistrate's Court in a

letter dated 5 June 1984 to seek legal advice and, if possible, legal

aid. The applicant continued to seek further access and joined the

mother and father on one access visit prior to September 1984. In

all, the applicant has seen A on four occasions since the child was

taken into care.

Following an accident in August 1985 when the mother and

fathers' second child B fell down some stairs, the County Council

issued wardship proceedings and B was taken into care. The applicant

states that access to A was suspended after this incident. The

applicant wrote to the County Council seeking access to A and B but

her request was refused. She was informed she would only be able to

obtain access through the courts.

On 21 October 1985 a third child, C, was born to the mother

and father, and was made a ward of court by them as the County Council

were threatening to do the same. A hearing was scheduled for December

1985 but was postponed until January 1986 due to the number of people

listed to give evidence. The January 1986 hearing was adjourned to

allow for further reports to be made and in the intervening period up

until the hearing scheduled for July 1986 B remained with short-term

foster parents and C was allowed to remain with his mother and father.

At the hearing in July 1986, the judge ordered that A be

released for adoption proceedings, B to remain in long-term foster

care and C to be placed with foster parents.

The mother and father applied for a variation of the judges

order but this was turned down on 22 August 1986 on the grounds that

it was effectively an appeal against the judges order. The mother and

father then obtained legal advice to appeal out of time. The appeal

was, however, dismissed on 19 February 1987.

On 14 April 1987, the County Council took out a summons

returnable on 24 April 1987 seeking leave to commence proceedings for

orders that B and C be freed for adoption and that access by the

applicants be terminated on the making of such an order and that leave

be given to place C with long-term foster parents.

COMPLAINTS

The applicant complains that she has been unable to obtain

access to her great grandchildren and that she has been refused access

to them by the County Council.

The applicant further complains that she has not had access to

the courts as she has been unable to obtain legal aid and has been

legally advised of the futility of any application to obtain access to

her great grandchildren. She claims that she has been denied a fair

and public hearing.

THE LAW

1. The applicant complains first that she has been unable to

obtain access to her great grandchildren.

Article 8 (Art. 8) of the Convention 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 in accordance

with the law and is necessary in a domestic 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 has previously held that, apart from any blood

relationship, certain links must exist between persons before their

relationship can be said to constitute "family life" within the meaning of

Article 8 (Art. 8) of the Convention (cf. No. 5269/71, Dec. 8.2.72, Collection

39 p. 104 and No. 7229/75, Dec. 15.12.77, D.R. 12 p. 32).

In this connection the Commission notes the very limited

contact that the applicant appears to have had with her great

grandchildren. Whilst there was a degree of contact between the child

A and the applicant immediately after A's birth, with regard to B and

C the applicant has not shown what contact she has had with them.

The Commission does not, however, consider it necessary to

resolve the question of whether "family life" exists since it is clear

that even if the applicant could show that the relationship between

herself and the three children fell within the meaning of "family

life" the decisions which have been taken are justified under

paragraph 2 of Article 8 (Art. 8-2) of the Convention.

In this respect the Commission notes that all three children

were made wards of court and as such it was open to the applicant to

apply to the High Court for access to the children. In determining

the question of access the High Court must take as its paramount

consideration the welfare of the child. From the information

submitted by the applicant it appears that the High Court considered

the children's welfare in the wardship proceedings and decided that

the three children's best interests are furthered by the orders made

limiting the natural family's contact with the children. Wardship

would provide a means to examine the lawfulness of these decisions and

whether they are arbitrary and determine also whether access should be

granted to the applicant.

The Commission, noting the findings of the High Court, is

satisfied that any interference with the right to respect for family

life, which the limitations placed on the natural family's right of

access may constitute, is justified as being in accordance with the

law and necessary in a democratic society in the interests of the

children's health. It follows that this part of 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 she has not had access to

the courts. She states she has been legally advised as to the

futility of any application to obtain access to her great

grandchildren and she claims that she has been denied a fair and

public hearing.

Article 6 para. 1 (Art. 6-1) of the Convention provides, as far as

material:

"1. In the determination of his civil rights and

obligations ... everyone is entitled to a fair and public

hearing within a reasonable time by an independent and

impartial tribunal established by law."

The Commission observes that Article 6 para. 1 (Art. 6-1) is only

applicable in proceedings on the determination of "civil rights and

obligations", however the Commission need not decide whether or not

"civil rights and obligations" within the meaning of Article 6 para. 1

(Art. 6-1) are at issue in the present case in view of the opportunity of

access to court which is in fact open to the applicant, insofar as

required by this provision.

The Commission first notes that all three children were made

wards of court and as such it was open to the applicant to seek access

to the children in the wardship proceedings. It appears that with

regard to A the applicant took legal advice, but in the light of

Counsel's opinion given to the parents following the wardship hearing

in January 1983, she was advised against making any application. The

Commission considers that the applicant has not shown that she was

thereby excluded from access to a court contrary to Article 6 para. 1

(Art. 6-1) of the Convention as she could have applied for access to

the children through the jurisdiction of the High Court in wardship

proceedings.

The Commission next notes that the applicant also complains of

her non-eligibility for legal aid. The Commission observes that no

right to free legal aid in civil proceedings is, as such, included

among the rights and freedoms guaranteed by the Convention, although

denial of legal aid could in certain circumstances amount to a failure

to ensure a fair hearing under Article 6 para. 1 (Art. 6-1) of the Convention

(Eur. Court H.R., Airey judgment of 9 October 1979, Series A no. 32

para. 26). Furthermore, the Commission has also held that the

operation of financial qualifications for legal aid, and a restriction

on its availability to cases with objective, fair, prospects of

success is a reasonable application of limited public funds for the

purpose of ensuring a fair hearing (cf. No. 8158/78, Dec. 10.7.80,

D.R. 21 p. 95). There is no indication that the applicant was refused

legal aid on any other ground.

It follows that this part of the application is manifestly

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

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President to the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ADAMSON v. THE UNITED KINGDOM

ADAMSON v. THE UNITED KINGDOM

LEXI