AS TO THE ADMISSIBILITY

Application No. 12792/87

by Christopher and Linda Diane SAMPSON

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 2 March 1987

by Christopher and Linda Diane SAMPSON against the United Kingdom and

registered on 16 March 1987 under file No. 12792/87;

        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 facts as they have been submitted by the applicants may be

summarised as follows:

        The applicants are British citizens living in Weymouth,

Dorset.  The first applicant is a civil servant, born on 25 December

1958.  The second applicant is the first applicant's wife and is a

chambermaid, born on 17 July 1960.

        The applicants were married on 25 February 1978.  On 6 October

1978, they had their first child, A, a daughter.  A was born by

Caesarean section, and there were a number of complications at birth as

a result of which A suffers from epilepsy and is slow moving down one

side of her body.  The second applicant also suffers from epilepsy.

        Following the birth of A the second applicant suffered severe

post-natal depression, and this combined with difficulties in the

applicants' marriage resulted in social workers becoming involved with

the family.

        One morning when A had been crying continuously, the second

applicant, after trying to comfort her, became frustrated and threw A

into a chair which she bounced out of and hit her head on the side of

the wall.  A was knocked unconscious and was taken to hospital where

she was found to have a fractured skull.  The paediatrician, Dr.  P. who

examined A, was of the opinion that she was paralysed down one side

and blind in one eye, and was likely to have learning and emotional

problems as she got older.

        As a result of this instance, A was taken into care by the

local county council who administered the care and control of A

through their social services department, who placed A with foster

parents.  The second applicant was prosecuted as a result of the

injury caused to A.  She pleaded guilty and was placed on probation

for three years and obtained psychiatric help.

        The applicants' relationship with each other improved and they

instituted proceedings in the Magistrate's Court to regain the care

and control of their daughter A.  At first instance they failed and

appealed to the Crown Court where they succeeded.  Wardship

proceedings were then instituted in the High Court by the foster

parents and the county council.  The applicants failed in these

proceedings and care and control of A was awarded to the foster

parents.  Both before and after these proceedings the applicants were

allowed limited access to A.

        On 19 November 1982 the applicant had a second child, B, a

son, also delivered by Caesarean section.  B is thought to suffer from

hereditary epilepsey.  The applicants state that they were accused by

the paediatrician, Dr.P, of making B blind with gonococcus myocus from

gonorrhoea.  The venereal disease tests were negative and the

allegations against the applicants were dropped.  Following complaints

by the applicants concerning the allegations, a letter of apology was

sent to them by the hospital administrator.

        B was originally on a child at risk register until July 1985

when he was removed from this register, as the applicants state that

they had shown themselves to be good parents.  When B was two years

old, the second applicant became pregnant again.  The applicants state

that, during this period, they were very happy and that access periods

with A were going very well.

        On 17 August 1985, just after A had been left with the

applicants on an access visit, the first applicant took B to the

toilet.  B made his own way to the top of the stairs where he was told

to wait.  According to the applicants B tried to make his own way down

the stairs but fell.  He was taken to the hospital and seen by Dr.  P

who considered that the injuries sustained by B were not consistent

with a fall down stairs as there were bruises on the back of his legs.

The applicants state that these bruises were caused whilst B was

being put into a push chair during a temper tantrum, there being a

metal bar across the push chair at the front.

        As a result of this incident involving B, the county council

obtained a place of safety order and a 28 day care order from the

Magistrate's Court.  The county council then initiated wardship

proceedings in the High Court.  It was at this time that the second

applicant was due to give birth to the third child, C.  The applicants

were informed by the county council that, if they had any more

children, they would be taken away from them and put into care.  The

applicants decided, as a result of this, that the second applicant

should be sterilised to remove this threat imposed upon them.

        The applicants' third child, a son C, was born on 21 October

1985 by Caesarean section.  The applicants made C a ward of court as

the county council were, at any rate, threatening to do this.  A

hearing was scheduled for December 1985 but was postponed until

January 1986 due to the number of people listed to give evidence

on behalf of the county council.

        In January 1986 there was a hearing in which the judge

considered the first applicant responsible for injurying B's frenulum

under his top lip.  The other injuries, fractured collar bone,

slightly knocked front top tooth, cut to lower lip and bruises to

thighs, the judge was uncertain as to their cause.  The applicants had

only one medical opinion to rely on at the hearing, as they state

their solicitors had failed to approach anyone else.  The matter was

adjourned by the judge until July 1986 to allow for further reports to

be made.  The judge advised the applicants to obtain a good

psychiatrist to show that they were capable parents and the applicants

were advised by their counsel that they had a lot of work to do in

order to sort matters out.  The applicants state that as they were

very upset they were unable to grasp what was expected of them and

relied upon their solicitors to sort matters out.

        Following the hearing in January 1986, B remained with the

short-term foster parents and C was allowed to stay with the

applicants.  The county council appealed against the judge's decision

in January 1986, and the appeal was turned down in June 1986.

        The applicants  state that during the lead up to the July 1986

hearing they did not have proper consultations with their solicitors

in order to decide what was needed.  They obtained for themselves a

psychologist, who turned out to be not sufficiently experienced in

cases such as the applicants'.  They also obtained medical evidence

and attempted to obtain evidence from a forensic scientist.

        The applicants state that, a week before the July hearing, the

first applicant was pressed by his solicitors and counsel into

admitting that he injured B and was told that if he did not admit

this, B would remain in care and C would be taken into care.  The

first applicant was very confused and accepted the legal advice he

received and admitted to injurying B although he states that this was

not true.

        At the hearing in July 1986 the judge was, in the applicant's

words, "disgusted" with the lack of work that the applicants had done

and with the first applicant's acceptance that he had injured B.

There was, however, no criticism of the way in which C was being

parented.  The order of the judge was to release A for adoption

proceedings, provide for B to remain in long-term foster care and for

C to be placed with foster parents.

        Following the hearing in July, the first applicant was advised

by counsel to swear another affidavit stating that he had not injured

B.  The applicant sought a variation of the July order and leave for

an eminent psychiatrist to read the court's papers so as to be able to

do a report on the applicants.  This was turned down on 22 August 1986

on the grounds that it was effectively an appeal against the judge's

order and an enquiry was made by the judge at the hearing concerning

the applicants' legal aid.

        The applicants' counsel submitted advice on the appeal and

legal aid was revoked in spite of this advice.  The applicants changed

their solicitors who obtained for them a new counsel.  The applicants

state that the new legal advisers were critical of the applicants'

previous legal representatives' handling of the case.  The applicant

successfully appealed against the revocation of legal aid and obtained

advice to appeal out of time.  The application for leave to appeal out

of time was granted, but the appeal against the July 1986 order was

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 applicants complain that their right to respect for

family life has been interfered with, contrary to Article 8 para. 1

of the Convention.

        The applicants further complain that they have not received a

fair hearing as guaranteed by Article 6 para. 1 of the Convention in

respect of the proceedings in which they were refused care and control

of their children B and C.  The applicants allege that their right to

a fair hearing was prejudiced by their legal advisers' neglect in not

obtaining proper medical and psychiatric evidence and their advice to

the first applicant to make a false statement under oath that he had

caused certain injuries to his son, B.

        The applicants do not raise any complaints in relation to

their first child, A.

THE LAW

1.      The applicants complain that their right to respect for

private and family life has been infringed by the High Court's refusal

to grant them care and control of their children B and C.

        Article 8 (Art. 8) provides:

        "1.  Everyone has the right to respect for his private and

        family life, his home and his correspondence.

        2.  There shall be no interference by a public authority with

        the exercise of this right except such as is in accordance

        with the law and is necessary in a democratic society in the

        interests of national security, public safety or the economic

        well-being of the country, for the prevention of disorder or

        crime, for the protection of health or morals, or for the

        protection of the rights and freedoms of others."

        The Commission recognises that according to its established

case-law the right to respect for family life extends to the

right of parents to have access to or contact with their children and

that the State may not interfere with the exercise of the right of

access otherwise than in accordance with the conditions set out in paragraph 2

of Article 8 (Art. 8-2) (cf.  No. 911/60, Dec. 10.4.61, Collection 7 p. 7; No.

7911/77, Dec 12.12.77, D.R. 12 p. 192 and No. 6427/78, Dec. 13.3.80, D.R. 18 p.

225).

        When deciding the question of care and control and access to

children, domestic courts may properly take into account under paragraph 2 of

Article 8 (Art. 8-2) the welfare of the child.  When a domestic court has

refused a parent the right of care and control or access to his or her child,

the Commission nevertheless ultimately has a task to judge whether such refusal

is justified under the provisions of paragraph 2 of Article 8 (Art. 8-2).

        In the present case the High Court at the hearing in July 1986

had evidence before it of two incidents in which two of the

applicants' children were injured.  The High Court also had evidence

before it of how the children's best interests could be served, and on

the question whether or not granting the applicants care and control

would be in the children best interests, it appears the court must

have concluded that the risk of injury to the children dictated that

it was in their best interests that the applicants should not have

care and control of them.

        In these circumstances the Commission, having regard to the

facts as submitted by the applicants, finds that there is nothing to

show that the courts acted otherwise than in the best interests of the

children in refusing the applicants care and control of their

children and that the measures taken in the case were in accordance

with  and necessary in a democratic society for the protection

of the health of the children under Article 8 para. 2 (Art. 8-2) of the

Convention.

        It follows that this complaint is manifestly ill-founded

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

2.      The applicants also complain that they have not received a fair hearing

as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention in respect of

the proceedings in which they were refused care and control of their children B

and C.

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

material:

        "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 notes that the children were made wards of

court and that accordingly the court had full jurisdiction to consider

any proposals made in respect of the children and to decide upon their

future from time to time by considering their best interests.  The

applicants were parties to these proceedings and able to make whatever

submissions and applications to the court they considered appropriate.

        The applicants contend in particular that their right to a

fair hearing was prejudiced by their legal advisers' neglect in not

obtaining proper medical and psychiatric evidence together with their

legal advisers' advice to make a false statement under oath that the

first applicant had caused certain injuries to his son B.

        From the information submitted by the applicants there is

nothing to indicate that the proceedings about which the applicants

complain were unfair.  The applicants obtained legal aid and were

represented by both solicitor and counsel at the hearings.  With

regard to the applicants' allegations as to the effect of their legal

advisers' neglect, the Commission notes that the applicants new legal

advisers were critical of the previous legal advisers handling of the

case.  The Commission however considers that the applicants have

failed to substantiate that any such failure reflected adversely on

the fairness of the proceedings as a whole, taking account of the

appointment of further representatives about whom no reproach has been

made.

        The Commission therefore concludes that this complaint is manifestly

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

Convention.

3.      Insofar as the applicants' complaints are directed against

their former legal advisers' handling of their case, the Commission recalls

that, under the terms of Article 25 para. 1 (Art. 25-1) of the Convention, it

is only actions for which a High Contracting Party to the Convention is

responsible which can be the subject matter of an application.  Hence the

Commission may not deal with applications against private individuals and it

follows that this part of the application is incompatible ratione personae with

the provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

  Secretary to the Commission         President of the Commission

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