Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23715/94

by S.P., D.P., and A.T.

against the United Kingdom

The European Commission of Human Rights sitting in private on

20 May 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

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 3 September 1993

by S.P., D.P., and A.T. against the United Kingdom and registered on

18 March 1994 under file No. 23715/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

16 February 1995 and 21 September 1995 and the observations in

reply submitted by the applicant on 7 June 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, two brothers and their half-brother, are British

citizens born in 1983, 1984 and 1988 and are resident in Herefordshire.

They are represented before the Commission by Mr. Luke Clements, a

solicitor practising in Hereford.

The facts as submitted by the parties may be summarised as

follows.

a. Particular circumstances of the case

The first applicant S.P., the second applicant D.P. and their

step-sister M. were made wards of court on 7 July 1986 on grounds,

inter alia, that M. had been abused by her step father (S.P.'s and

D.P.'s father). R., the applicants' mother was implicated as having

been present during abuse. S.P and D.P. were placed with foster

parents, Mr. and Mrs. O.

The two brothers remained with Mr. and Mrs. O. for 15 months and

a strong bond of affection grew up between them.

On 1 October 1987, the brothers were returned to live with their

mother R. who was living with another man, T. On 8 August 1988, A.T.

(the third applicant) was born, his parents being R. and T.

The relationship between R. and T. was violent. In November 1989,

R. was admitted to hospital following an attack by T. In April 1991,

R. sought refuge with the children in a home for battered women.

Concern arose in the home as to the degree of neglect of the

children. On 3 August 1991 the children were found at night on their

own outside a pub. On 5 August 1991, R. was evicted from the home and

the children taken into care by Hereford and Worcester County Council

("the Council"). They were placed with temporary foster parents.

On 6 November 1991, an interim care and control order was granted

by the High Court to the Council and a psychiatric assessment ordered

concerning possible rehabilitation with the mother. The assessment

commenced on 17 January 1992.

On 12 February 1992, a directions appointment was heard by the

Court but adjourned with the appointment of Ms. Proctor as guardian ad

litem.

The psychiatric assessment was completed and received by the

Social Services Department in May 1992.

The intention of the Council at this time was that the children

should remain in permanent care and be returned to live with Mr. and

Mrs. O., their first foster parents. The children, particularly A.T.,

were however becoming increasingly attached to their current foster

parents as time passed.

Ms. Proctor received her instructions on 31 March 1992 and she

indicated that her report could be prepared within 4 months. It was

filed on 14 July 1992.

Ms. Proctor became concerned about the need to secure separate

representation of the children in the proceedings. While her view was

that it would not be safe to return the children to the mother, she was

aware that the brothers were expressing a preference for that course.

By letter dated 16 April 1992, Mr. Clements, a solicitor member of the

Children's Panel, requested the Council to seek an appointments

direction before the Court to secure legal representation of the

children. The Council did not approach the Court until 24 June 1992.

On 5 August 1992, in view of the continuing delay, Mr. Clements wrote

to the Council stating it was no longer in the children's interests to

receive separate representation if that would entail further delay.

In August 1992, R. ceased attending access visits with the

children.

On 14 October 1992, the principal provisions of the Children Act

1991 came into force. This had the effect that children who were wards

of court automatically were placed in the care of the local authority

and the wardship discharged. Since the matter concerning the applicants

had not been concluded by a full hearing prior to this date, the High

Court proceeded on 6 October 1992 to de-ward the children on an

undertaking by the Council to commence care proceedings under section

31 of the Children Act 1989. The High Court judge Mr. Justice Thorpe

directed that the final hearing take place before himself on the first

available date after 1 January 1993 and that Ms. Proctor file a

supplementary report if necessary before 18 December 1992.

Mr. Clements was at this stage appointed solicitor to represent

the children in the proceedings. By 15 December 1992, it became clear

that the case had not been listed for hearing. Mr. Clements wrote to

the Court expressing his concern that the listing office did not have

the file and that it was imperative for the welfare of the children

that they move to a permanent placement as soon as possible.

By letter of 23 December 1992, Mr. Clements again expressed his

concern to the Court at the delay, given that the children had been 16

months with short term foster parents and were forming attachments that

would have to be broken. At an appointment with the District Judge held

the same day, the judge agreed that it was a case of inexcusable delay.

He had no power to list the case himself but stated that he would

arrange to have the file sent to Mr. Justice Thorpe in London in the

hope that he would arrange for a listing.

During January 1993 it became apparent that due to a structural

anomaly there was no-one with apparent power to list the case (the

Court in Worcester was seized with the case but it was to be heard in

the Birmingham High Court who apparently were not in the position to

list it).

On Mr. Clements contacting the Worcester County Court listing

officer in February 1993 it became apparent that the file was lost in

London and there was no-one available to list the case.

On 8 March 1993, a directions appointment was obtained before a

High Court judge. R. did not attend. The judge accepted that the case

had been allowed to drift along through the fault of the court but

noted that there was no available court time for a hearing in the

foreseeable future. He made an interim care order with a view to making

a final care order to be drawn up on 19 March 1993 unless R. applied

to the court for a hearing. Since R. did not so apply, the final care

order was drawn up and came into effect on 19 March 1993.

Following the order, the children were placed by the Council with

Mr. and Mrs O., who had maintained contact with them.

By letter dated 9 May 1995 to Mr. Clements, Mrs. O. stated, inter

alia:

"I have no doubt that the uncertainty for the boys during the

time they were waiting for the move to us must have caused them

a great deal of worry. On the one hand they were seeing more of

us and having to get used to the idea of living with us and yet

not having any idea of when it would happen or even why no-one

could tell them why this was the case. They must have wondered

whether we were going to change our minds and how to behave to

please us enough so that we wouldn't do so. For children who are

used to being let down, I am sure that this must have been a fear

- a fear of looking forward to something that would perhaps never

happen.

is a great worrier who tries almost too hard to please.

He was certainly very concerned at all the changes...

The time they spent at the temporary carer foster home influenced

them quite strongly and they certainly changed quite a lot during

this time. We had to get used to them, as they were not the same

children we knew when they lived with us before and they had to

adapt to quite a different lifestyle which at times has been

difficult.

during this time was bonding to the temporary foster

mother, and then found himself not only with yet another family,

but also within one week having to start school. This was too

much for any child to cope with, though he did quite well to

begin with. After a few months, he became very difficult and

still is a great problem. He is having session with a consultant

psychologist and I hope he will be able to help with

behavioural problems. These are greatly, though not exclusively

directed at me which seems to suggest that although he wants to

become attached to a mother figure, all his past experience tells

him that this will end in rejection and loss and therefore is

something to be avoided. I do feel that if he had spent more time

at home with me before starting school we would now have a better

relationship...

Both and myself are pleased that this complaint

application to the Commission> is being made because of the

additional difficulties caused by the long delay. is aware

of these proceedings and is happy about them but the other two

boys I feel would not understand sufficiently to discuss with

them..."

b. Relevant domestic law and practice

Section 41(1) of the Children Act 1989 provides:

"for the purpose of any specified proceedings, the Court shall

appoint a Guardian Ad Litem for the child concerned unless

satisfied that it is not necessary to do so in order to safeguard

his interests."

Rule 4.11 (2) of the Family Proceedings Rules 1991 provides:

"the Guardian Ad Litem shall...instruct the solicitor

representing the child on all matters relevant to the interests

of the child, including possibilities for appeal, arising in the

course of the proceedings."

COMPLAINTS

The applicants complain of the length of the wardship and care

proceedings. They submit that the proceedings which determined their

civil rights and obligations were not complicated and that the delays

were imputable to the structural problems in the court system and the

failure of the Council to expedite matters in the early stages. They

submit that the delay affected their right to family life in that they

were required to spend a prolonged period with temporary foster parents

and suffered distress and uncertainty as to their future. S.P., for

example, feared that he might be returned to a home where T. lived and

once their mother stopped contact in August 1992 the two older boys

exhibited a desperate need for assurance as to their future. D.P. was

considered by Ms. Proctor to have suffered particular distress due to

the change because of his conflicting attachment to his initial foster

parents, temporary foster parents and his mother. A.T., the youngest,

with the lapse of time entered the age (over 3) when attachments are

less readily engaged and he was required to change home and family and

start full time school at the same moment. A.T. had made strong

attachment to the temporary foster parents and is reported to be

settling with Mr. and Mrs. O. with some difficulty.

The applicants invoke Articles 6 and 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 September 1993 and registered

on 18 March 1994.

On 12 October 1994, the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were received on

16 February 1995, after an extension of the time-limit fixed for that

purpose. The applicant's submissions in reply were received on

7 June 1995, also after an extension of the time-limit. The Government

submitted further observations on 21 September 1995.

On 11 April 1995, the Commission granted the applicants legal

aid.

THE LAW

The applicants complain of the delay in the care proceedings

which concerned their placement with their longterm foster parents.

Article 25 (Art. 25) of the Convention: validity of the application

The application has been introduced on behalf of the children by

Mr. Clements, the solicitor who represented them in the child care

proceedings, supported by a letter of authority by the guardian ad

litem appointed by the court to safeguard the interests of the

children in the domestic proceedings.

The Government contest the validity of this exercise. They

submit, inter alia, that the guardian is appointed by the court for the

purposes of those proceedings only and that her role ended when the

proceedings ended on 19 March 1993 with the coming into force of the

final care order. Neither the solicitor nor the guardian can in their

view claim any continuing right to represent the children after the end

of these proceedings. If, for whatever reason, the children were to be

the subject of new proceedings, the court would not necessarily appoint

the same solicitor or guardian to represent them. The children could

be represented before the Commission by either their mother or the

local authority: Article 25 (Art. 25) cannot permit that a person

without parental responsibility under United Kingdom law be able to

bring an application in respect of a child where another person

disagrees with the inaction of the person with parental responsiblity.

The Government further dispute that Mr. Clements can rely on any

indications of support made by the foster parents and one of the

children 20 months after the application was introduced as a valid

basis of authority to act.

The applicants' representatives argue that Article 25 (Art. 25)

should be given an effective construction in order to give children

practical protection. There is authority to present the application on

two possible bases. Firstly, under domestic law the guardian ad litem

has competence to instruct legal representatives in respect of appeals

arising in the course of proceedings affecting the children, which it

is submitted must include the making of an application to the

Commission. Alternatively, Mr. Clements is acting directly in the

capacity of solicitor for the children and reference is made to a

letter of agreement from the children's foster parents which indicates

that the older child (aged 12) supports the application.

The Commission notes the Government's argument that the

competence of the guardian ad litem and solicitor to represent the

children is limited under domestic law to the course of those

proceedings in respect of which they have been appointed.

Representation before the Convention organs however is not solely

governed by considerations of domestic procedural standing. Whether or

not Mr. Clements may validly represent the applicant children before

the Commission will depend on examination of a number of relevant

factors.

The Commission would emphasise first of all that the involvement

of children is a special feature which attracts considerations not

necessarily applicable where adult applicants are concerned. It

observes that there has been a growing recognition of the vulnerability

of children and the need to provide them with specific protection of

their interests eg. the UN Convention on the Rights of the Child and

the European Convention on the Exercise of Children's Rights recently

opened for signature. The Commission and Court have consistently

underlined that the object and purpose of the Convention as an

instrument for the protection of individual human beings requires that

its provisions, both procedural and substantive, be interpreted and

applied so as to make its safeguards practical and effective (eg. Eur.

Court H.R. Loizidou judgment of 23 March 1995, Series A no. 310, p.

26-27 paras. 70-72). In the context of Article 25 (Art. 25), the

position of children qualifies for careful consideration: children must

generally rely on other persons to present their claims and represent

their interests and may not be of an age or capacity to authorise steps

to be taken on their behalf in any real sense. The Commission considers

that a restrictive or technical approach in this area is to be avoided.

The Commission has examined whether other or more appropriate

representation exists or is available, the nature of the links between

Mr. Clements and the children, the object and scope of the application

introduced on their behalf and whether there are any conflicts of

interest.

As regards the first element, the Commission recalls that the

Government submit that the children should be represented in any

application either by their natural mother or by the local authority,

both of whom share parental responsibility. On a practical level

however, it accepts the submission of the applicants' representatives

that these options are not open to the applicants. The mother is

apparently disinterested and the local authority is the subject of

criticism in the application. There is therefore no alternative source

of representation in the present case which would render Mr. Clements's

assumption of the role inappropriate or unnecessary.

The Commission notes that Mr. Clements acted in the child care

proceedings as the solicitor appointed by the independent Guardian Ad

Litem to protect the children's interests. The object of this

application is limited to complaints that the proceedings in which he

participated on behalf of the children did not comply procedurally with

the requirements of the Convention. It is not sought to bring into

issue any aspect of the substantive decisions reached as regards the

children's welfare or as to the current exercise of the local

authority's supervisory responsibility. The Commission has not

identified any possible conflict of interest with the applicants in

recognising Mr. Clements' competence to pursue these complaints before

it, given that their scope is limited to procedural matters in which

he was the duly authorised legal representative on the domestic level.

The Commission has not attached significant weight to the expressions

of support communicated by the foster parents, on their own behalf and

in the name of S.P. who is twelve years old. These do not constitute

authority to act in any formal sense. While S.P. may be of an age and

understanding such that his views could be relevant to the existence

or not of a valid application brought in his name, the Commission does

not consider that in the circumstances of this case it is necessary or

desirable to require or expect more than an informal indication of this

kind.

The Commission concludes that the application introduced on

behalf of the applicants constitutes a valid exercise of the right of

individual petition guaranteed under Article 25 (Art.2 5) of the

Convention.

Substantive complaints

The applicants invoke Articles 6 para. 1 and 8 (Art. 6-1, 8) of

the Convention which provide:

Article 6 (Art. 6) of the Convention

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

Article 8 (Art. 8) of the Convention

"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 Government submit that the applicants' complaints concerning

the delay in the proceedings are incompatible ratione materiae with the

provisions of the Convention since children cannot claim any right in

English law to be cared for by a specific person. Accordingly, the care

proceedings relating to the children did not determine any of their

civil rights or obligations. In their view, the previous cases under

Article 6 para. 1 (Art. 6-1) principally concerned parental rights

under domestic law.

The Government have made no submissions as regards the

applicants' complaints that the delay in the care proceedings violated

their right to respect for their family life. They reserve the right

to make further submissions on the merits.

The applicants contend that the Government's submission that

children's rights are not determined in child care proceedings is a

very narrow and technical construction of the concept of civil rights

which is inconsistent with protection of children's interests under

domestic law, the Convention and the UN Convention on the Rights of the

Child. They submit that having regard to the importance of what was

at stake for them, the lack of complexity of the case and the failure

to give any explanation for failure to hear the case earlier the delays

which occurred exceeded a reasonable time.

The applicants emphasise the adverse impact suffered by them due

to the delay, the uncertainty and worry as to their future, which they

submit interfered unjustifiably with their right to respect for their

family life.

The Commission has had regard to the submissions of the parties.

It finds that the application raises serious issues the determination

of which should depend on examination of the merits. The applicants'

complaints cannot therefore be declared manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other ground for declaring them inadmissible has been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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S.P., D.P. and A.T. v. THE UNITED KINGDOM

S.P., D.P. and A.T. v. THE UNITED KINGDOM

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