Search
document

Document text Analytics

M-F. v. THE UNITED KINGDOM

Doc ref: 11758/85 • ECHR ID: 001-602

Document date: May 16, 1986

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 0

M-F. v. THE UNITED KINGDOM

Doc ref: 11758/85 • ECHR ID: 001-602

Document date: May 16, 1986

Cited paragraphs only

The European Commission of Human Rights sitting in private

on 16 May 1986, the following members being present:

MM. J.A. FROWEIN, Acting President

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H. DANELIUS

G. BATLINER

Sir Basil HALL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (art. 25);

Having regard to the application introduced on 4 April 1985 by

I.M-F. against the United Kingdom and registered on

13 September 1985 under file No. 11758/85;

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

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian citizen born and now resident in Turin,

Italy. The facts as submitted by the applicant may be summarised as

follows.

The applicant gave birth to her daughter Rita on 18 December 1969. On

8 January 1985, the Epsom Juvenile Court committed Rita to the care of

the local authority under Section 1 (2)(a) of the Children and Young

Persons Act 1969 on the ground that her proper development was being

avoidably prevented or neglected and that she was in need of care or

control.

The Juvenile Court ordered that Rita's parents were not to be treated

as representing the child, and therefore had her own solicitors and a

guardian ad litem to protect her interests. The applicant was also

represented and unsuccessfully opposed the application for a care

order.

By a Notice of Appeal dated 14 January 1985, the applicant appealed

against the care order. The hearing took place in the Crown Court on

2 April 1985 and the appeal was dimissed. The applicant asked the

court to state a case to the High Court but the judge refused. The

applicant was advised by counsel that further appeal was hopeless.

COMPLAINTS

The applicant complains that she has been separated from her daughter,

that her daughter is being taught in a school for the mentally ill,

and is very unhappy. She further complains that she is prevented from

returning her daughter to her home in Italy.

The applicant therefore invokes Art. 8 of the Convention (art. 8).

THE LAW

The applicant complains that she has been separated from her daughter

and prevented from returning with her to Italy, and that her daughter

is being kept at an institution for the mentally ill without any

justification.

It is true that Art. 8 (art. 8) guarantees to everyone the right to

respect for their family life.

However, the Commission is not required to decide whether or not the

facts alleged by the applicant disclose any appearance of a violation

of this provision as, under Art. 26 of the Convention (art. 26), it

may only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law.

In the present case the applicant has not applied to the High Court to

make her daughter a ward of court and so bring the matter before the

High Court which has the jurisdiction to decide whether the welfare of

the child requires that she return to Italy with her mother or that

she be kept in an institution of the mentally ill. The applicant has,

therefore, not exhausted the remedies available to her under English

law.

The Commission recalls that according to English case-law where a

local authority has assumed parental rights over a child the High

Court will not interfere with the exercise of the local authority's

discretion in regard to such matters as access (A v. Liverpool City

Council 1981 2 AER 385, House of Lords). Therefore, in such cases,

the High Court wardship jurisdiction may not constitute effective

proceedings for the purposes of the Convention. However, it is clear

that wardship may still constitute an effective remedy in other

circumstances e.g. where the local authority has acted ultra vires,

with impropriety or where, as in Re H (1978 2 AER 903) the challenge

is directed not at the exercise of the local authority's discretionary

power but at the source of the power. In Re H, parents successfully

invoked wardship proceedings in the case of their child in care to

enable them to return to their own country with that child. This case

was acknowledged by the leading House of Lords case A. v. Liverpool

City Council as a special case. In the present case, the applicant,

an Italian citizen, wishes to return to her family in Italy with her

daughter. The applicant's case would therefore fall within one of the

exceptions to the rule as applied in the English case-law and

wardship, in the circumstances of this particular application, would

constitute an effective remedy for the purposes of Article 26 of the

Convention (art. 26).

Moreover, an examination of the case as it has been submitted,

including an examination made ex officio, does not disclose the

existence of any special circumstances which might have absolved the

applicant, according to the generally recognised rules of

international law, from exhausting the domestic remedies at her

disposal.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and her application must in

this respect be rejected under Art. 27, para. 3 of the Convention

(art. 27-3).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

LEXI

Lexploria AI Legal Assistant