Angela and Rodney PRICE v. the United Kingdom
Doc ref: 12402/86 • ECHR ID: 001-254
Document date: March 9, 1988
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AS TO THE ADMISSIBILITY OF
Application No. 12402/86
by Angela and Rodney PRICE
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 March 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
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 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 September
1986 by Angela and Rodney PRICE against the United Kingdom and
registered on 22 September 1986 under file No. 12402/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to:
- the Commission's decision of 4 December 1986 to bring
the application to the notice of the respondent Government
and invite them to submit written observations on its
admissibilty and merits;
- the observations submitted by the respondent Government on
5 June 1987 and the observations in reply submitted by the
applicant on 16 September 1987;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are both British citizens, born respectively in
1939 and 1952. The first applicant is a district nurse; the second
applicant is a market trader by profession. They are represented by
Ms. Mary Ryan, solicitor, of the Family Rights Group, London. The
facts as they have been submitted on behalf of the parties may be
summarised as follows.
The applicants are the adoptive paternal grandparents of a
child, D., born on 24 July 1984. D. is the son of the applicants'
adopted son and daughter-in-law. The first applicant adopted her son
during her first marriage, and following the first applicant's
marriage to the second applicant, the second applicant also adopted
her son. The applicants visited D. regularly after his birth and were
concerned that he did not seem to be very well. In particular it
appeared that he had difficulty feeding.
On 4 September 1984 D. was admitted to hospital with serious
injuries, including a fractured skull and fractures in the legs. The
local authority was not satisfied with the explanations offered in
respect of the injuries and suspected they were non-accidental. At
this time, the social services department of the local authority
obtained a place of safety order in respect of D. under Section 28(1)
of the Children and Young Persons Act 1969. D. was in hospital for
three weeks, during which time both applicants visited him daily, the
first applicant often staying for several hours. Both applicants were
very concerned about their grandson.
On 21 September 1984 the social services department of the
local authority placed D. with short-term foster parents, where the
applicants were refused the opportunity to visit him despite their
request. On 7 November 1984 the Wigan Juvenile Court granted a care
order in respect of D. to the social services department of the local
authority under Section 1(2)(a) of the Children and Young Persons Act
1969. The applicants were not legally entitled to be parties to those
proceedings, or to make representations or any application in respect
of their grandson.
The local authority from the outset had decided on pursuing
the course of rehabilitating D. with his parents. The programme of
rehabilitation began at the end of November 1984 when the child began
to spend days at home. The applicants were then able to visit him at
his parents' home. As the rehabilitation programme developed, so
contact with the applicants also increased. On 1 March 1985 the child
returned to the care of his parents on a full-time basis and the
applicants saw him about twice a week.
On 12 June 1985 the child was admitted to hospital with
bruises under his eyes. The applicants visited the child in hospital
every day until his discharge on 21 June. The local authority
considered these injuries to be non-accidental and when he was
discharged from hospital placed him with foster parents. The
applicants asked for access, which was initially refused. Subsequently
the social services department of the local authority allowed the
first applicant to visit the child with the child's mother once a
week, but refused to make arrangements for both applicants to visit
the child together.
In August 1985 the applicants consulted their current
representative, and on 9 August 1985 their representative wrote to the
social services department of the local authority, in part in the
following terms:
"Unfortunately concern, which arises
from their natural love of their grandchild, has been
interpreted by your department as interference in the
case and they have had great difficulty in communicating
with your department and in making arrangements to have
access to [the child] while he has been living with
foster parents. [The applicants] have therefore sought
my assistance in opening up communications with your
department."
The letter requested further access to the child, if possible
at the applicants' home at weekends, and referred to paragraph 8 of
the Statutory Code of Practice on Access issued by the Department of
Health and Social Security which stresses the importance of
considering the wider family when making arrangements for access to a
child in care. The letter then added that, if the decision was taken
by the local authority not to continue to attempt to rehabilitate the
child with his parents, the grandparents offered themselves as
potential long-term carers for the child.
The social services department of the local authority
continued to refuse to make any fuller arrangements for access for the
applicants but did agree to consider the applicants' offer of a home
for D.
On 8 November 1985, a case conference held by the social
services department of the local authority decided to rehabilitate
D. with his parents. It was specifically concluded that if further
non-accidental injury occurred rehabilitation would be terminated and
consideration given to alternative placement for D. away from his
parents. On 17 December 1985 both sets of grandparents were seen by
social workers concerning their involvement in the rehabilitation
programme. D. again started to spend days at the home of his parents,
where the applicants were able to visit him. Once again, with
increasing time spent at home, the child's contact with the applicants
increased.
On 1 February 1986 the first applicant's son telephoned the
first applicant to say that the child had a bruise on his leg. The
first applicant advised him to contact the social services department,
and on 4 February 1986 the child was again admitted to hospital where
the first applicant visited him. D. was found to have bruising on the
thigh and buttocks. Both injuries were unexplained and D.'s parents
gave different reasons as to how the bruising could have been caused.
On or about 6 February 1986 the child was placed with foster parents.
Following a case conference on 7 February 1986 and in line
with the conclusions of the case conference on 8 November 1985,
rehabilitation plans ceased and long-term placement away from his
family was sought for D. At the same time it was decided that access
by members of the family was to cease. The applicants have not been
allowed to see D. since then.
On 11 February 1986 a social worker from the Family Rights
Group advising the applicants wrote to the social services department
of the local authority asking them for a meeting with the applicants,
before any decisions were made as to the child's future. No reply was
received to this letter, but on 25 March 1986 the applicants were
invited to meet with the representatives of the social services
department of the local authority. They were told that on 7 February
1986 the social services department of the local authority had decided
to place the child for adoption in a new family. The applicants had
not been informed of this decision and had not been invited to make
representations about it.
On 19 February 1986 and 4 March 1986 case conferences
concerning access to children in care had been held by the social
services department of the local authority. It was confirmed that the
applicants should have no access to the child and found that they were
not suitable to care for him full-time. They had not been informed
that these meetings were taking place, nor had they been asked to make
any representations, and had not been informed of the decision prior
to 25 March 1986.
At their meeting with the local authority on 25 March 1986 the
applicants referred to the Code of Practice on Access to Children in
Care issued by the Secretary of State under Section 12G of the Child
Care Act 1980, and in particular to paragraph 28 of the Code of
Practice which is in the following terms:
"Disagreement with parents
28. Local authorities should ensure that they have clear
procedures which will enable parents to pursue complaints
about access and ask for decisions to be reviewed. Local
authorities should also be prepared to use these procedures
to deal with complaints about access decisions from other
relatives of children in care."
On 26 March 1986, the local authority sent a letter to the
applicants explaining the local authority's decision concerning access
and adoption. On 2 April 1986, the applicants attended a meeting
with the local authority to discuss this letter.
Subsequently, on 6 May 1986 the applicants attended another
meeting of the social services committee of the local authority and
presented their request for access to the child. Their request was
refused.
In May 1986 the first applicant's adopted son and
daughter-in-law issued a summons in the Wigan Juvenile Court under
Section 21(2) Children and Young Persons Act 1969, to discharge the
care order in respect of their child. The applicants had no locus
standi in those proceedings and were not entitled to be represented or
to make any applications on their own behalf. The Juvenile Court also
had no power to make any order in respect of the child's access to his
grandparents. In the meantime, on 12 May 1986, the applicants
submitted a letter to the adoption panel of the local authority
requesting that they be considered as prospective adopters for the
child. They pointed out in their letter that they considered that it
would be very hard for the social workers who had been involved in the
case up to date to examine their offer with the objectivity which was
necessary. They therefore suggested that an independent social worker
should make an assessment of their suitability.
The child's parents' summons to discharge the care order and
to request access came before the Juvenile Court on 22 October 1986 and
lasted four days. The application was refused.
The local authority placed D. for adoption.
Relevant domestic law and practice
Care proceedings under the Chidren and Young Persons Act 1969
By Section 1 of the 1969 Act the local authority may apply to
the Juvenile Court, which is a specially constituted magistrates
court, for the child to be placed in its care. The local authority
has a duty so to do under Section 2(2) of the 1969 Act. The
conditions to be satisfied following an application are set out in
Section 1(2)(a)-(f): section 1(2)a provides for a (care) order in
circumstances where
"(a) proper development is being avoidably
prevented or neglected or his health is being avoidably
impaired or neglected or he is being ill treated...."
In the application before the Juvenile Court the local
authority has to show the existence of one of the conditions in
Section 1(2)(a)-(f) and show that the child is in need of care or
control which he will not receive unless one of the orders specified
in Section 1(3) is made. It is provided by Section 44 of the Children
and Young Persons Act 1933, as amended by the Children and Young
Persons Act 1969, that every court in care proceedings shall have
regard to the welfare of the child in question and shall in a proper
case take steps for removing him from undesirable surroundings or for
securing that proper provision is made for his education and training.
One of the orders under Section 1(3) of the 1969 Act is a care
order. The effect of a care order is that the rights of the parents,
except the rights to agree to adoption and to influence the child's
religious beliefs, are taken from them and given to 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 and Part III of the Child Care Act 1980. The local
authority have "the same powers and duties with respect to a person in
their care by virtue of a care order ... as his parents or guardian
would have apart from the order ..." (Section 10 of the 1980 Act).
They also have power to keep the child in their care notwithstanding
any claim by his parent or guardian while the order is in force.
Where a child is committed to the care of a local authority that
authority has the right to control access by other persons to that
child. In consequence of the child being in the care of a local
authority the local authority are required to give first consideration
to safeguarding and promoting the welfare of that child throughout his
childhood (Section 18 of the Child Care Act 1980). Thus the local
authority must apply this test in relation to decisions concerning
access to the child.
The care proceedings are, unless ground (f) is alleged, civil
proceedings; they are governed by the Magistrates' Courts (Children
and Young Persons) Rules 1970 (S.I.1970/1792) ("the 1970 Rules") as
amended and the law of evidence in civil cases applies. The parties
to the proceedings are the local authority and the child. It is open
to the child to have his parent or guardian to conduct his case on his
behalf either directly or indirectly through a lawyer in which case
the parent or guardian can apply for legal aid on the child's behalf
(Section 40(2) of the Legal Aid Act 1974). Where the court thinks
there may be a conflict of interest between the child and the parent
or guardian, the court may make an order that those interests be
separately represented (Section 32A of the 1969 Act as inserted by
Section 64 of the Children Act 1975). In that case legal aid will be
available for the child and separately for the parent or guardian
(Section 28(6A) of the Legal Aid Act 1974 as amended by Section 65 of
the Children Act 1975).
Under Section 2(12) of the 1969 Act, appeals from a juvenile
court decision in care proceedings lie to the Crown Court. The Crown
Court reviews the decision by way of rehearing. The local authority
has no direct right of appeal where no order is made under Section
1(3) or where the one made was not the order sought. Appeal on a
point of law lies to the Divisional Court of the High Court.
Judicial review
A person affected by the decision of an administrative body
may apply to have that decision set aside on the ground that the body
has acted in excess of its legal authority or that the decision taken
is one which nobody acting reasonably could have taken.
Wardship
Wardship jurisdiction is exercised by the Family Division of
the High Court or, since 28 April 1986, to a limited extent by County
Courts. It is a prerogative jurisdiction at common law and is largely
independent of statutory provisions. When a child becomes a ward of
court a court assumes responsibility for all aspects of his welfare.
It may, for example, make orders as to where the child has to live,
with whom, who may have access to him, and as to his religion,
education and marriage if under 18. In determining what orders to
make, the High Court is required by Section 1 of the Guardianship of
Minors Act 1971 to have regard to the child's welfare as the first and
paramount consideration. A court may grant care and control of the
child to a person or body, for example a local authority, but that
person or body may only act in accordance with the court's directions.
The court may also give care and control to one person or body and
make a supervision order, at its own discretion or under Section 7(4)
of the Family Law Reform Act 1969, in favour of another person or
body. A child remains a ward of court until either he has attained
his majority or the court orders that he shall cease to be a ward of
court. No important step can be taken in the child's life without the
court's consent (Re S (1967) 1 All ER 202 at 209).
Anyone, not merely a parent or a local authority, who can show
an appropriate interest in a child's welfare can apply for a child to
be made a ward of court. Section 41(1) of the Supreme Court Act 1981
provides that no child may be made a ward of court other than by a
court order. The application for the order must be made by
originating summons in the High Court. The procedure is set out in
Order 90 of the Rules of Supreme Court. The child becomes a ward of
court immediately the originating summons is issued. However, unless
an appointment for the hearing of the summons is made within 21 days,
the wardship automatically lapses. The appointment will generally be
before a registrar who gives directions as to what is to be done
before the case may be heard before a judge. He may also make an
order as to access if the person with the physical custody of the
child agrees. The registrar may also decide if any other interested
parties to the proceedings should be so joined. Any party
dissatisfied with the decision of the registrar may appeal to a judge
in chambers. When the proceedings are heard before the judge he
either confirms the wardship or makes an order terminating wardship.
Subject to means, interested persons are able under Section 7
of the Legal Aid Act 1974 to obtain legal aid for the representation
of their interests in wardship proceedings in the High Court. There
is a right of appeal from the High Court to the Court of Appeal, and
thereafter (with leave) to the House of Lords. In exceptional
circumstances an appeal may be direct to the House of Lords.
Once a child has become a ward of court, it remains open to
any party to bring the case back to the court for a variation of the
original order granting wardship or for directions on matters such as
access or education.
The courts have emphasised that the wardship jurisdiction is
not an alternative form of appeal from the decision of a juvenile
court concerning the care of a child under the 1969 Act. The
relationship between the responsibilities for the care of children
given by statute to local authorities and those exercised by the High
Court under wardship jurisdiction was explained in the leading
judgment of Lord Wilberforce in the House of Lords case A. v. Liverpool
City Council (1981) 2 All ER 385 in particular at pages 388-9 in which
it was stated that wardship jurisdiction could not be exercised by the
courts to review the merits of local authorities decisions within the
field of discretion committed by statute to the local authority.
Code of Practice on Access
The Code of Practice on Access is a statutory code issued
under Section 12G of the Child Care Act 1980. Particular emphasis is
placed on the need for local authorities to make provision for contact
to be maintained, where this is consistent with the welfare of
children, with the wider members of the family in addition to the
child's parents (paras. 8 and 9 of the Code). The Code also requires
local authorities to ensure that they have clear procedures to enable
complaints about access to be pursued and for decisions to be reviewed
where relatives are concerned as well as parents. The provisions
introduced by the Health and Social Services and Social Security
Adjudications Act 1983 which provide a court procedure giving parents
a right to apply for access where a child is subject to a care order
do not apply to grandparent applications. Thus domestic legislation
does not recognise that grandparents have a right to access or a right
to apply for access to a child when that child is in the care of a
local authority under a compulsory care order.
Grandparents and grandchildren
Under domestic legislation grandparents generally do not have
legal rights over their grandchildren. Any rights which may exist
over children are normally vested jointly in the children's parents if
they are married. In considering the award of custody of a child to
any person or an issue relating to a child's upbringing such as access
a court must give first and paramount consideration to the welfare of
the child (Section 1 of the Guardianship of Minors Act 1971). Where a
child is in the care of a local authority by virtue of a compulsory
care order a grandparent of that child does not have a right to apply
for custody or access but must rely on the local authority's
discretion to afford contact with the child (which could include
access or the child living with the grandparents) where this would be
in the child's best interests. Section 18 of the Child Care Act 1980
requires the local authority to give first consideration to
safeguarding and promoting the welfare of the child throughout his
childhood and such contact with the grandparents would therefore have
to be consistent with the child's welfare.
Under domestic legislation grandparents may be parties to or
involved in the following proceedings in relation to their
grandchildren:
(i) Pursuant to Section 14A of the Guardianship of Minors Act
1971, where, under Section 9(1) of the Act, an order giving
access or custody to the father or mother is in force, the
Court may, on application of a grandparent of the minor,
make an order requiring access to the minor to be given
to the grandparent.
(ii) Grandparents may commence wardship proceedings, or apply to
be joined as parties to wardship proceedings commenced by
any other person, and may ask for any order which is in
the interest of their grandchild. However, as stated above,
wardship proceedings cannot be used to challenge the decisions
of local authorities taken under their statutory powers.
(iii) Where the child concerned is living with the grandparents
they may apply for a custodianship order in respect of him
under the Children Act 1975. This provision is applicable to
any relative of the child with whom the child has been living
for the preceding three months where the person with legal
custody of the child gives his consent. The provision also
applies to any person with whom the child has been living
for a period of 12 months (including the preceding three
months) where the person with legal custody consents.
(iv) In cases where the child is living with the grandparents
and various statutory requirements have been satisfied
grandparents may apply for an adoption order. These
provisions would also apply to any prospective adopter
who fulfilled the relevant criteria.
COMPLAINTS
1. The applicants complain of a violation of their rights under
Article 6 (Art. 6) of the Convention. They contend that their right to apply
for custody of and/or access to their grandchild is a civil right, but
that they do not have any right under English law to apply for custody
or access because their grandchild is subject to a care order made
under the Children and Young Persons Act 1969. In the care
proceedings the applicants have no locus standi and no right to apply
for the discharge of the care order. Similarly, the applicants have
no right to make an application in respect of their grandchild in
wardship proceedings in view of the decisions of the House of Lords in
A. v. Liverpool City Council (1981) 2 All ER 385 and W. and others
v. Hertfordshire County Council (1985) 2 All ER 301. Hence the
applicants contend that they had no independent and impartial tribunal
established by law from which they could obtain a fair hearing within
a reasonable time in respect of the determination of their civil
rights as regards their grandchild.
2. The applicants also complain of a violation of their rights
under Article 8 (Art. 8) of the Convention. They submit that they had
substantial access to their grandchild from his birth in July 1984 until his
final placement with foster parents in February 1986. They had close and
intimate ties of love and affection with him, as also with his mother, father
and sister. Family life includes the ties between grandparents and
grandchildren and there is an applied obligation on the State to allow those
ties to develop normally deriving from the decision of the European Court of
Human Rights in the Marckx case (Eur. Court H.R., Marckx judgment of 13 June
1979, Series A No. 31). However, by their action in refusing:
1) to allow the applicants access to the child from the
end of September to the end of November 1984 and
2) to allow the applicants adequate access to the child from
mid-June to late November 1985 and
3) to allow the applicants access to the child from
4 February 1986 to date and
4) to allow the applicants to take over the care of the
child and provide a home for him,
the social services department of the local authority have interfered
with the applicants' right to respect for their family life.
Having regard to the following matters in particular:
1) That the decisions of the social services
department of the local authority to refuse access in
September 1984 and to restrict access in June 1985 were
taken without the knowledge of the applicants and without
their being asked to make any representations;
2) That the decision of the social services
department of the local authority of 7 February 1986
to place the child for adoption in a new family was taken
without the knowledge of the applicants and was not
communicated to them and ignored the applicants' request
in their letter of 9 August 1985 to be considered as
possible carers for their grandson;
3) That the decisions of the social services
department of the local authority on 19 February and
4 March 1986 to terminate the child's access to the
applicants and to reject their offer of a home for him
were taken without the applicants' knowledge or
participation, despite their letter of 11 February
1986 asking to be allowed to make representations
before decisions were taken;
4) That no attempt was ever made by the social
services department of the local authority to conduct
a thorough assessment of the applicants and their
relationship with the child or to obtain detailed
information from them as to their proposals for the
child;
5) That when the applicants were asked to meet
with the social services department of the local authority
on 25 March 1986, important decisions had already been
made about the child's future and therefore their
representations were ineffective;
the process of decision-making within the social services department
of the local authority provided insufficient safeguards and showed a
total lack of respect for family life.
The applicants contend that the above interference by the
social services department of the local authority was not necessary
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention, as it was
never alleged that the applicants injured, ill-treated or neglected the child,
or that their relationship with him was other than normal, or that they did not
show love and concern for their grandchild.
3. The applicants lastly contend that they had no effective remedy
before a national tribunal as required by Article 13 (Art. 13) of the
Convention because:
1) The making of a care order removed any parental
rights that the applicants might have had;
2) The applicants as grandparents had no locus standi
within the care proceedings or the subsequent proceedings
to discharge the care order;
3) The applicants could not commence wardship
proceedings in the High Court in view of the existing
care proceedings.
The applicants therefore allege that Articles 6, 8 and 13 (Art. 6,
Art. 8, Art. 13) of the Convention were violated in their case.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 September 1986 and
registered on 22 September 1986.
On 4 December 1986, the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on its admissibility and merits
pursuant to Rule 42(2)b (Rule 42-2-b) of the Rules of Procedure.
The observations of the respondent Government were submitted
on 5 June 1987 after an extension of the time-limit and the
observations in reply submitted by the applicants on 16 September
1987, also after an extension of the time-limit.
The applicants were granted legal aid by the President of the
Commission on 25 June 1987.
SUBMISSIONS OF THE PARTIES
A. The respondent Government
1. The facts
Background
Following D.'s first hospitalisation, the local authority's
records note that, in discussion with the health visitor on 7 September
1984, the first applicant mentioned that she was not surprised that
there had been injuries on D.
From the outset, the local authority sought to rehabilitate D.
with his parents as being in his best interests. The efforts of the
local authority therefore concentrated on the relationship between D.
and his parents, and although this at times restricted the applicants'
access to D., this was done for D.'s benefit. It had been noted at
case conferences on 11 September and 13 November 1984 that the first
applicant tended to overshadow D.'s mother, thus providing an obstacle
to the proposed rehabilitation of D. with his parents.
While the applicants were not entitled to be parties in the
care proceedings on 7 November 1984, the Juvenile Court has an
inherent discretion to allow persons such as the applicants to
participate in the proceedings: indeed the first applicant did give
evidence at the hearing. Representations could have been made that
the Court should make a supervision order with a condition attached
that D. live with the applicants.
The applicants met with the local authority on 25 March 1986,
2 April 1986 and 6 May 1986 and the applicants were able to put their
case for access. Following full consideration, the request for access
to D. by the applicants was refused.
In the proceedings before the Juvenile Court in October 1986,
neither the applicants nor D.'s parents asked that a supervision order
be made with a condition that D. reside with the applicants. Both the
guardian ad litem's reports of 20 and 22 October 1986 and the local
authority's report of 16 October 1986, which were before the Court,
considered and rejected the further contact between the applicants and
D. It is submitted that the Court had ample evidence before it to
come to the conclusion that it did, namely that the care order should
not be discharged and that there should be no access. It was brought
to the attention of the Court that the local authority's intention was
to place D. for adoption. This has now taken place.
It should also be noted that on 13 May 1986 a letter from the
local ombudsman was received by the local authority enclosing a letter
of complaint from the applicants concerning their treatment by the
local authority. This was investigated by the ombudsman and no
evidence of maladministration was found.
Throughout this case the local authority social workers were
concerned that not all the members of the family were being fully open
with the various authorities as to how injuries to D. occurred. As
mentioned above the first applicant was recorded by a health visitor
as saying that she was not surprised at the injuries which occurred to
D. resulting in his admission to hospital on 4 September 1984. On
19 September 1984 the health authority records note that D.'s mother
admitted holding D.'s face while winding him after a feed and that a
"potty" and shampoo bottle had been thrown at him by his sister.
Following attempts to rehabilitate D. with his family when he was
examined on 22 January 1985, 27 February 1985, 12 June 1985 and
4 February 1986 the explanations given by the various members of the
family, including the applicants, for the injuries recorded were not
accepted as satisfactory by the doctor who examined D. In particular
the explanations given by members of D.'s family for the injuries
on 12 June 1985 were not consistent. On the final occasion when
rehabilitation was attempted not only was there concern among the
local authority social workers that one of the applicants could have
caused the injuries but again the explanations provided by D.'s parents
and the second applicant were inconsistent. From the second
applicant's statement of 4 February 1986 it would appear that he could
have caused the bruising to D. According to the guardian ad litem's
report of 20 October 1986 the doctor who examined D. said that the
bruising on D.'s buttocks was due to an "extremely hard slap". The
local authority's letter of 26 June 1986 to the local ombudsman states
on page 3:
"The officers felt it was difficult for them to find out
exactly and precisely how D. had been injured, which had
occurred on a number of occasions. There seemed to be
conflicting stories being told or, to use the (applicants')
own phrase, a muddying of the picture. This is called
collusion and it could have been created deliberately or
it could have been created unknowingly, without being
aware of the effect.
The officers genuinely felt and still feel that such a
smoke screen or muddying of the picture existed, hence,
the reference in the telephone conversation (to collusion).
That view is still felt and it is not appropriate to
apologise for using the phrase."
The local authority's version of events was accepted by the
local ombudsman.
The view that members of the family had been less than fully
open with the local authority is supported by the first applicant's
comments (noted in the local authority's records on 27 March 1986)
when she explained to a social worker that D.'s mother had injured D.
If she had known this before she could presumably have come forward
and discussed it openly with the local authority officials concerned.
2. Domestic law and practice
Care proceedings under the Children and Young Persons Act 1969
While grandparents are not entitled to be parties in care
proceedings, in practice, however, the Juvenile Court has inherent
jurisdiction to allow other persons (such as grandparents in
appropriate cases) to participate in the proceedings. This could
include allowing persons who are not parties to cross-examine local
authority witnesses (R. v. Gravesham Juvenile Court, ex parte B (1983)
4 FLR 312; R. v. Milton Keynes Justices, ex parte R (1979) 1 WLR 1062).
It is also open to a juvenile court to make a supervision order
instead of a care order at the original hearing of an application for
a care order (Section 1(3) of the Children and Young Persons Act 1969)
or on an application for the discharge of a care order (Section 21(2)
of the Children and Young Persons Act 1969). Section 12(1) of the
Children and Young Persons Act 1969 provides that: "A supervision
order may require the supervised person to reside with an individual
named in the order who agrees to the requirement...."
Wardship and judicial review
In a recent decision of the House of Lords (in Re W (A minor)
(1985) 2 WLR 892) the role of the wardship court as a potential
reviewing body for local authority decisions was rejected and the
principles enunciated in the Liverpool case were reaffirmed.
Accordingly it would appear that while the wardship court is not
available, in cases where a child is in care, to review local
authority decisions it may intervene in certain limited
circumstances. These include cases in which a local authority takes
action which is so unreasonable as to require the intervention of the
court. Linked to this circumstance is the availability of a remedy
through judicial review of a local authority's action by way of
application to the High Court under Order 53 of the Rules of the
Supreme Court in relation to an administrative decision or exercise of
discretion by a local authority (see for example R. v. Hertfordshire
County Council, ex parte B. and R. v. Bedfordshire County Council, ex
parte C, The Times 19 August 1986). Judicial review is available
where, for example, a local authority have taken irrelevant matters
into account in reaching a decision, have not taken relevant matters
into account or have acted unreasonably (Associated Provincial Picture
Houses Ltd v. Wednesbury Corporation (1948) 1 KB 233). It is
submitted that an application for judicial review and wardship could
in appropriate cases be issued simultaneously. Where leave is granted
to proceed with an application for judicial review an application
could also be made to the Court to exercise its wardship jurisdiction.
Adoption legislation
Before a child can be placed for adoption the Adoption
Agencies Regulations 1983 which govern pre-placement procedure require
a full investigation of each case where adoption is under
consideration. This will include consideration of the wider family.
Before a local authority can make adoption placement decisions they
must receive their Adoption Panel's recommendations. Adoption orders
can only be made after consideration by the adoption Court of the
question of whether the parents agree to the making of an adoption
order or the Court dispenses with their agreement in accordance with
Section 12 of the Children Act 1975. In a case such as the present
one the parties to the proceedings would include the prospective
adopters, the local authority and the child's parents and may include
any other person (including grandparents) as the Court may at any time
direct (Rule 15(3) of the Adoption Rules 1984). The Court will have
before it in addition to any other evidence which any of the parties
may wish to introduce a report from the local authority as the placing
agency covering the matters specified in Schedule 2 to those rules
which will include relevant information concerning the grandparents.
It should cover the nature of the relationship between the
grandparents and the child and possible alternatives to adoption which
have been or should be considered. In considering whether to make an
adoption order in any case the Court is required to have regard to all
the circumstances, first consideration being given to the need to
safeguard and promote the welfare of the child throughout his
childhood, and shall so far as practicable ascertain the wishes and
feelings of the child regarding the decision and give due
consideration to them, having regard to his age and understanding
(Section 3 of the Children Act 1975).
Children and Young Persons (Amendment) Act 1986
Since proceedings were taken in the present case the above Act
has been passed. It amends the 1969 Act to the effect that any
grandparent of a child in respect of whom care proceedings are brought
may make an application to the Court and the Court may in such
circumstances as may be specified in rules of Court give leave for the
grandparent to be made a party to the proceedings. These provisions
of the Act have not yet been brought into operation. The Act does not
affect the orders which the Court may make in care proceedings where
the grandparent is a party. Thus the Court cannot make a custody
order or access order in favour of the grandparent.
3. Admissibility and merits
Article 8 (Art. 8) of the Convention
The respondent Government do not accept that until 7 February
1986 the applicants' access to D. was refused. They also submit that
from 6 September 1984, the date of the place of safety order, until
7 February 1986, there were only limited periods when the applicants'
access to D. was restricted. While with his parents, and while in
hospital between 6-21 September 1984, there was no restriction on
access. At other times, although there was some restriction on access
to D. while D. was living with foster parents in order to encourage
rehabilitation of D. with his parents, the first applicant was able to
share access to D. with D.'s mother when D.'s father was not visiting
him.
The respondent Government submit that it is clear from the
case-law of the Commission and the Court that, in the case of a
relationship more distant than that between parent and child or
between spouses, the notion of "family life" requires more than a bare
relationship. The importance of actual cohabitation and dependency is
illustrated in the Court's judgments in Marckx (Eur. Court H.R.,
Marckx judgment of 13 June 1979, Series A No. 31) and Johnston (Eur.
Court H.R., Johnston judgment of 18 December 1986, Series A No. 112).
The respondent Government submit that in particular the Commission
has adopted this approach in the case of grandparent/grandchild
relationship (see e.g. Application No. 8924/80, Dec. 10.3.81, D.R. 24
p. 183).
On the facts of the present case the respondent Government
submit that the ties between the applicants and D. were not
sufficiently close to amount to "family life" within the meaning of
Article 8 (Art. 8) of the Convention. The applicants did not form a part of
the same household as D., and did not have primary responsibility for
his upbringing. The fact that they may have visited D. regularly and
that they may have been concerned about him does not, in the
circumstances of the case, show that the applicants played a
"considerable part in family life" in relation to D. Accordingly, the
applicants and D. did not, in the respondent Government's submission,
enjoy a family life within the meaning of Article 8 (Art. 8).
Alternatively, if the applicants did, in the circumstances of
the present case, have ties with D. sufficiently close to indicate
that there was a right to respect for their family life with D. the
Government submit that on the facts of the case no interference with
that right occurred. In relation to the period before 7 February
1986, the applicants' access to D. was at many times unrestricted.
Furthermore the Government submit that, particularly in the case of
relationships other than those between a parent and child, the concept
of "family life" cannot involve the right of unlimited access to the
child; and that in the circumstances of the case, any "family life"
that the applicants enjoyed with D. did not necessarily involve the
right to have unlimited access to D. while he was placed with foster
parents or to have access to him when he was the subject of a
compulsory care order.
Even if it is found that there had been an interference
contrary to Article 8 para. 1 (Art. 8-1), the respondent Government submit that
it was justified under Article 8 para. 2 (Art. 8-2) of the Convention. The
relevant law and practice satisfy the Convention requirements that any
restriction be "in accordance with the law" and the various decisions taken in
relation to D. pursued the legitimate aims of "the protection of health or
morals" and "the protection of rights and freedoms of others". As regards the
necessity of any alleged interference, the respondent Government argue that in
this area the margin of appreciation afforded to the national authorities is a
wide one. The respondent Government rely in this respect on the partly
dissenting opinion given in Olsson v. Sweden (Application No. 10465/83, Comm.
Rep. 2.12.86). There were strong reasons why the local authority should have
taken the steps which they did in the interest of D.
The respondent Government emphasise in this respect that there
was ample evidence of physical abuse of D. The local authority were
also concerned to achieve rehabilitation of D. with his parents after
the place of safety order was obtained in September 1984 and, to the
extent that this aim involved an attempt to bolster up the relationship
between the parents and D., it was also necessary to some extent to
restrict the applicants' access to D. The respondent Government also
emphasise that, in the present case, any interference with the
grandparents' right to respect for family life would be considerably
less serious than an interference with the parents' right. The
relationship between the parent and child is clearly much closer than
that between grandparent and grandchild. The respondent Government
also point out that the local authority were concerned to respect D.'s
right to a family life, first by attempting to rehabilitate D. with
his parents, and then (after 29 October 1986) by attempting to obtain
a permanent substitute family placement for him by way of adoption. A
permanent substitute family was considered necessary at that stage
because rehabilitation attempts had failed and because D.'s parents
and the applicants were implicated directly or indirectly in the abuse
of D. The respondent Government refer to the local authority's record
of 27 March 1986 where the first applicant is recorded as stating that
she was aware that D's mother had abused D. even though she had not
acted earlier to bring this to the local authority's attention. The
respondent Government refer to the local authority's report of 16
October 1986 in which it was concluded that there was a risk of
further injury and that D. needed a permanent substitute family and a
complete severence from his natural family. This was supported by the
guardian ad litem's reports of 20-22 October 1986 which were placed
before the Court that refused the discharge of the care order. In all
the circumstances, the respondent Government submit that the decisions
of the local authority and the national courts were well within the
margin of appreciation left to Member States by the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention
The respondent Government do not accept that the applicants'
civil rights were involved in the present case. Grandparents do not
under English law have any rights of access to their grandchildren.
At most, a child's grandparents have the right, in certain
circumstances, to make an application to the courts in the hope that
the courts might, in the exercise of their discretion, permit them
access to their grandchild. It is therefore submitted that there is
no legal basis in English law for the proposition that grandparents
have "rights" in relation to their grandchildren of a type to which
Article 6 (Art. 6) of the Convention has any relevance.
Insofar as it is true to say that the grandparents had a hope
or expectation that access might have been granted to them by the
local authority, it is submitted that any such hope or expectation
cannot be classed as a right and that the possibility that a
discretion right be exercised in a certain way cannot be characterised
as a right.
If, which is not accepted, the applicants' civil rights were
involved it is submitted that they did have access to court for
determination of that right. Local authority action can be challenged
in wardship proceedings in conjunction with proceedings for judicial
review or in proceedings for judicial review alone. If the local
authority had acted improperly in restricting access to the applicants
or in their refusal to grant access after 7 February 1986, it would
have been open to the applicants to apply both for judicial review of
the local authority's actions and to bring wardship proceedings at the
same time. If, for example, it could have been shown that the local
authority did not take proper account of the applicants as possible
carers for D. and persons who should have continued to be involved in
D.'s life or if the local authority had failed to act in accordance
with the principles set out in the Code of Practice on Access there
would have been good grounds for such applications to have been made.
In fact, the local authority went to considerable efforts to enable
the applicants to put their case before a specially convened meeting
of elected members in accordance with the procedures recommended under
the Code of Practice and there were a number of meetings between the
applicants and the local authority's social workers to discuss both
access and the applicants' further involvement with D.
In the present case, any "right" to access which the
applicants had stemmed from the possibility of the local authority
exercising their discretion in the applicants' favour. In such cases,
the case-law of the Court and the Commission indicates that the
possibility of judicial review of the exercise of such discretion
satisfies the requirements of Article 6 para. 1 (Art. 6-1). The recent case of
Agosi (Eur. Court H.R., Agosi judgment of 24 October 1986, Series A No. 108)
indicates that the remedy of judicial review, which in this case could be used
alone or supported by a wardship application, would be a satisfactory remedy
having regard to the requirements of Article 6 (Art. 6). The Government also
refer to the case of Van Marle (Series A No. 101 para. 35) as indicating that
the existence of such proceedings is relevant in particular when it is alleged
that an authority has exercised its powers improperly. The Government further
rely on the Report of the Commission in Application No. 7598/76, Kaplan v. the
United Kingdom (Comm. Rep. 17.7.80, D.R. 21 p. 5),
It is submitted that the applicants could not show, on the
facts, that they had a proper basis for challenging the actions of the
local authority, as the local authority did not act improperly.
However, if this is alleged, it is submitted that in this regard the
applicants have failed to exhaust domestic remedies for the purposes
of Article 26 (Art. 26) of the Convention.
As regards the care proceedings, the applicants could have
requested the Court, in the exercise of its inherent jurisdiction, to
allow them to make representations. For example, they could have made
representations, in conjunction with D.'s mother and her husband, that
a supervision order be made with a requirement that D. be placed with
the applicants.
Article 13 (Art. 13) of the Convention
If, contrary to the respondent Government's submission, the
Commission is of the opinion that Article 6 (Art. 6) is applicable, the
Government would submit that no separate issue arises under Article
13 (Art. 13). The Government would refer to the constant case-law of the
Convention organs to the effect that the requirements of Article 13
(Art. 13) are less strict than and accordingly absorbed by Article 6 (Art. 6)
(e.g. Eur. Court H.R., Silver and Others judgment of 25 March 1983, Series A
No. 61 para. 110).
If the Commission are of the opinion that Article 6 (Art. 6) is not
applicable, the respondent Government first suggest that the
applicants do not have an arguable claim for the purposes of Article
13 (Art. 13). In the case of Rice and Boyle (Applications Nos. 9658/82 and
9659/82, Comm. Rep. 7.5.86) the Commission identified three elements
of a claim which was "arguable": the claim should concern a right or
freedom guaranteed by the Convention; the claim should not be wholly
unsubstantiated on the facts; and the claim should give rise to a
prima facie issue under the Convention. The Commission did not amplify
what it meant by the words "prima facie issue" in this context.
However, it is noted that in respect of the two applicants' complaints
in that case the Commission equated the concept of manifestly
ill-founded with the absence of a prima facie issue; in particular, in
paragraph 91 of its Report, the Commission held that, since the
supervision of prisoners' correspondence was justified under Article 8
para. 2 (Art. 8-2), the complaint did not give rise to a prima facie issue and
thus to an arguable claim under the Convention.
In the present case, the Government argue that the applicants'
claim under Article 8 (Art. 8) is manifestly ill-founded. In these
circumstances the Government submit that no issue under Article 13
(Art. 13) arises.
Alternatively, the applicants had an effective remedy before a
national authority through the procedure adopted by the local
authority in respect of access and subsequently by taking wardship
and/or judicial review proceedings in respect of the decisions made by
the local authority pursuant to that procedure in relation to the
applicants. There is no evidence to indicate that any decision of the
local authority in this case was improperly taken, but, if it had
been, the remedies available through judicial review and wardship
would have allowed such a decision to be challenged and afforded an
effective remedy in accordance with the requirements of the
Convention. In these circumstances the Court could have declared that
the decisions that had been taken did not have a proper legal basis,
or required the local authority to make its decision again taking
account of proper considerations. In conjunction with its wardship
jurisdiction the Court could have awarded care and control to the
applicants or directed that access be granted.
The Government would also observe that the applicants have
already put their case to the Adoption Panel. Their request that they
be considered as suitable for an adoption placement for D. was in fact
rejected, but they will be entitled to apply to be made parties to any
court proceedings which consider adoption of D. by the prospective
adopters with whom the child is presently placed. The applicants will
therefore be able to make representations to that court on such
matters as they see fit. For example it would be open to the
applicants to argue against the making of an adoption order. Again
this procedure indicates that the applicants do have an effective
remedy before a national authority as required by Article 13 (Art. 13).
B. The applicants
1. The facts
The applicants submit that they were denied any access to D.
from 21 September 1984 until a date in mid-November 1984. The
applicants do not accept that access was denied to them in order to
facilitate D.'s rehabilitation with his parents. The applicants'
access restarted once the rehabilitation programme commenced when they
were able to see D. at his parents' home.
The applicants deny that in June 1985 arrangements were made
for the first applicant to visit D. on her own. The first applicant
was occasionally allowed to visit D. together with his mother, but the
local authority refused to allow either applicants to visit alone or
together with each other.
The local authority's letter to the applicants of 27 August
1985 stated that a social worker would investigate the applicants'
offer of a home for D. and that the matter would be considered "most
carefully and in great detail". Shortly afterwards the applicants
were visited at home by a social worker. She stayed about 45 minutes
and asked the applicants some questions about themselves. She said
that if D. did not return home to his parents it was most unlikely that
he would be placed with the applicants as they lived too near the
parents. The applicants said they would be prepared to move to
another area. The social worker mentioned adoption and said that the
local authority had no finances to maintain D. in foster care. The
applicants said they would be prepared if necessary to contribute to
his upkeep. The social worker did not visit the applicants again.
The applicants were not invited to the case conferences on 18 October
and 8 November 1985.
The applicants submit that the Code of Practice on Access
encourages local authorities to make provision for access to members
of the child's extended family. Paragraph 28 of the Code states that
local authorities should have clear procedures to deal with complaints
about access from relatives of children in care. Paragraph 33 states
that parents should be informed in writing if termination of access is
being considered and should be told how to make their views known and
how any decisions will be conveyed to them. It is submitted that the
spirit of the Code is that concerned relatives should be in no worse a
position than parents. In this case the local authority decided to
terminate D.'s access to his grandparents on 7 February 1986. The
applicants were not informed in advance that such termination of
access was being considered. The decision on 7 February 1986 was
confirmed at the meetings held on 19 February and 4 March 1986.
Though the local authority were well aware that the applicants wished
to make representation about access to and care of their grandchild,
the applicants were not told about the meetings or invited to make
their views known. The applicants note that the report of the meeting
of 6 May 1986 does not state the reasons for refusing access.
The applicants deny that they were not fully open with the
local authority about D.'s injuries or that they deliberately "muddied
the picture". In February 1986 D. was admitted to hospital with
certain injuries. At first the applicants did not know the details or
extent of his injuries. The second applicant was concerned that he
might have been responsible for the injuries as he had smacked D. to
make him let go of an electrical plug and socket. He sent a statement
detailing the incident to the local authority. When the second
applicant was made aware of the extent of D.'s injuries he accepted he
could not have caused them.
The applicants also emphatically deny that they were
"implicated directly or indirectly in the abuse of D". There is no
evidence to suggest that the applicants abused or neglected D. during
their contact with him. The first applicant also denies that she
stated that she was aware that D.'s mother had abused him although she
did acknowledge that D.'s mother found difficulty in coping.
2. Domestic law and practice
Care proceedings under the Children and Young Persons Act
There is no provision in the Act or in the Magistrates Court
(Children and Young Persons) Rules 1970 for grandparents to be given
notice of, be parties to or play a part in care proceedings, or any
proceedings to discharge a care order.
The applicants do not agree with the Government's submission
that in practice the Juvenile Court could exercise its inherent
jurisdiction to allow grandparents to participate in the proceedings
and cross-examine witnesses. The cases of R. v. Gravesham Juvenile
Court ex parte B. and R. v. Milton Keynes Justices ex parte R. were
concerned with the rights of parents to be represented and to
cross-examine witnesses. Parents are entitled to participate in care
proceedings by virtue of the 1970 Rules. The aforementioned cases
dealt with the application and interpretation of those Rules in
accordance with the interests of justice. There is no precedent in
domestic law to support the proposition that persons who are not
parties and have no right to participate in proceedings may none the
less put their case to the Court.
Wardship
Under domestic law, once a child is in care, the question of
whether and to what extent a grandparent is to have access to him is a
matter entirely within the discretion of the local authority. The
cases of A. v. Liverpool City Council (1981) 2 All ER 385 and Re W (a
minor) (1985) 2 WLR 892 firmly establish that a grandparent may not
use the wardship jurisdiction to challenge the exercise of the local
authority's discretion.
Judicial review
Anyone who wishes to make an application for judicial review
to challenge the decision of a local authority must first seek leave
of the Court. In practice it is very difficult for a parent or
relative of the child in care to obtain the necessary evidence to
support an applicaton for leave. Members of the child's family have
no right to attend local authority reviews or case conferences where
decisions are made and as in this particular case they are usually
excluded. Parents and relatives cannot compel the local authority to
produce the minutes of relevant meetings or any reports upon which
decisions are based. In proceedings for judicial review the Court may
order pre-trial disclosure of such documents, but only after leave to
commence the proceedings has been obtained. Even then such documents
are unlikely to be disclosed and the general rule of evidence is that
they are privileged and not open to inspection.
In any event an application for judicial review is an
unsatisfactory remedy for parents and relatives who wish to challenge
decisions made by a local authority as established in the Court's
judgment in W. v. the United Kingdom.
The Government submit that an applicaton for judicial review
and wardship could in appropriate cases be issued simultaneously so
that if the applicaton for judicial review was successful the Court in
wardship could review the merits of the local authority's decision.
The applicants reject this submission. In R. v. Newham London Borough
Council ex parte McL (The Times 25 July 1987) a grandmother applied
unsuccessfully for judicial review of a decision relating to her
granddaughter. In the course of his judgment Mr. Justice Latey stated
that the process of judicial review did not meet the needs of parents
and relatives and the principles to be applied were too restrictive
and inappropriate for the review of child care cases. He expressed
the view that judges hearing applications for leave should, in suitable
cases, recommend that wardship proceedings be commenced by the local
authority. However, he also stated that no such recommendation would
be binding upon a local authority, and that primary legislation would
be needed for the Court to be empowered to direct that wardship
proceedings be instituted.
Adoption
Grandparents are not automatically made parties to adoption
proceedings involving their grandchildren. It is true that Rule 15(3)
of the Adoption Rules 1984 provides that the Court may direct that any
person be made a party to the proceedings. However, this is a matter
for the Court's discretion and in practice grandparents and other
relatives of children in care are rarely successful in applying to be
joined as parties. No adoption proceedings are commenced until the
child has been successfully placed with prospective adopters. In the
overwhelming majority of cases access to the parents and relatives
will have been terminated sometime before placement. In cases where
the child is in care under the Children and Young Persons Act 1969 the
Court in adoption proceedings has no power to make any order for
custody or access in favour of grandparents. For all these reasons it
is only in exceptional cases that the Court in adoption proceedings
will give leave for grandparents to be involved.
3. Admissibility and merits
Article 8 (Art. 8) of the Convention
The applicants submit that the close ties between themselves
and their grandson did amount to "family life". Whilst it may be true
that in some cases cohabitation by two or more persons is evidence of
the existence of family life as for example in Johnston v. Ireland
(loc. cit.) where the two persons concerned were not married or in any
other way legally related it cannot conversely be argued that the
absence of cohabitation is evidence that no family life existed. The
applicants refer in particular to the case of Marckx v. Belgium (loc.
cit.). In that case the Government argued that no family life existed
between the child concerned and her grandmother as the grandmother had
died when the child was less than a year old and there was no evidence
that she had had any relations with the child. This argument was
rejected by the Court who pointed out that there was no evidence that
the child did not have relations with her grandmother.
In this case there is convincing evidence that more than "a
bare relationship" existed between the applicants and their grandson.
They loved him, showed interest and concern for his and his parents'
welfare, and until his reception into care maintained close and
regular access to him. The applicants' conduct after D.'s reception
into care indicates the strength of their attachment to him. There is
clear evidence that "family life" existed between the applicants and
their grandson.
The applicants submit that their access to D. was refused in
September 1984 and again in February 1986 and was restricted at other
times as detailed in their application. The applicants submit that
this was an interference with their right to respect for their family
life. The applicants repeat the submission made in their application
that the local authority's refusal to allow them to take over the
custody of D. also amounted to an interference with their right to
respect for their family life.
The Government submit that "the concept of family life cannot
involve the right of unlimited access to the child". The applicants
would submit that they never sought unlimited access to D. once he was
received into care but rather sought access which was reasonable and
regular. The Government further submit that "any family life that
the applicants enjoyed with D. did not necessarily involve the right
... to have access to him when he was the subject of a compulsory care
order". The applicants submit that, when a child is taken into care,
his family is not automatically deprived of access to him. The effect
of a care order is that access becomes a matter within the
discretionary power of the local authority. In exercising this
discretionary power the local authority should be guided by the Code
of Practice which expressly acknowledges that the interest of most
children will be served by the sustaining of links with their natural
family. The applicants would refer to the decision in W. v. the United
Kingdom (Eur. Court H.R., judgment of 8 July 1987, Series A No. 121)
in which the Court stated at paragraph 77:
"... The extinction of all parental right in regard to access
would scarcely be compatible with fundamental notions of
family life and family ties which Article 8 (Art. 8) of the Convention
is designed to protect (see the Marckx judgment ...)."
The applicants submit that their right to respect for family
life included a right to maintain contact with their grandson whilst
he remained in care.
The applicants accept that the local authority's decisions in
respect of their access to D. were in accordance with the law and were
designed to achieve a legitimate purpose. However, the applicants
submit that the interference with their right to respect for their
family life was not "necessary in a democratic society" because
(i) they were not involved in the local authority's decision-
making process to a sufficient degree to provide them
with the requisite protection of their interest and
(ii) they were deprived of an effective remedy for challenging
the decisions of the local authority.
The applicants also submit that it is insufficient merely to
say that where there is some evidence to indicate that decisions taken
in respect of the child in care were taken in his best interests, then
any interference with his family's right to respect for their family
life must be necessary in a democratic society. Whatever may be the
merits of a particular case the procedures applicable to the
determination of issues relating to family life must show respect for
that family life. The applicants refer to the case of W. v. the United
Kingdom (loc. cit.) and would adopt the observations of the Court in
this respect. The applicants submit that the reasoning of the Court
though applied to parents of children in care applies with equal force
to grandparents. It can be argued that decisions affecting
grandparents need to be taken with even greater care as, unlike parents
who may apply for access to children in care or for the discharge of
the care order, they have no remedy for challenging any decisions
made.
The applicants do not accept the Government's submission that
"in the present case any interference with the grandparents' right to
respect for family life would be considerably less serious than an
interference with the parents' right". They would emphasise that in
addition to their request for access they were also offering a
permanent home to D. as an alternative to an adoptive placement. The
applicants submit that they were not sufficiently involved in the
local authority's decision-making process, that that process was not
conducted in a fair manner that afforded due respect for their
interests as protected by Article 8 (Art. 8) and that accordingly the
interference with their right to respect for their family life was not
necessary. The applicants would refer to their application where the
details of their lack of involvement in the decision-making process
are set out.
The applicants further submit that the absence of an effective
remedy for challenging the decisions of the local authority
constitutes a breach of Article 8 (Art. 8). The local authority's decision to
terminate the applicant's access to D. and to reject the applicants offer of a
home for him could not be challenged by the applicants in a court or before any
impartial public body. The applicants as grandparents were not entitled to be
parties to the proceedings in the Juvenile Court and were not entitled to make
application to any other court in relation to decisions taken by the local
authority once the care order was made. The applicants were not entitled to
know the reasons for the decisions taken about them by the local authority and
were not entitled to examine or ask that a court examine any reports upon which
such decisions were based as such documents were privileged. The necessity for
any interference in the applicants' right to respect for their family life was
a matter left entirely within the discretion of the local authority and was
incapable of review by any impartial tribunal. The applicants submit that such
a procedure is in breach of Article 8 (Art. 8)
Article 6 (Art. 6) of the Convention
The applicants' civil rights
The applicants submit that there is a civil right of a
grandparent to have access to his grandchild. The applicants would
adopt the view of the Commission in the case of Sporrong and Lönnroth
(loc. cit) referred to by the Government that a given privilege or
interest which exists in a domestic legal system may constitute a
civil right, even though it is not described as such by that system.
The applicants reject the Government's submission that, under
domestic law, grandparents have no rights as regards access to their
grandchildren who are not in public care. Legislation such as the
Guardianship of Minors Act 1971 specifically gives grandparents the
right to apply for access to their grandchildren and in the
applicants' submission domestic law recognises the importance to
children of grandparental contact. Though it is not stated in any
statute that grandparents have a "right" of access the applicants
would submit that domestic law by implication recognises that right as
grandparents are permitted to apply for access where it is denied.
The applicants would further submit that any right of access
they had to their grandchild was not extinguished once he was received
into care. Although the continuation of access became a matter within
the discretionary power of the local authority once D. had been
received into care, this did not mean that they no longer had any
right in regard to access, since the Code of Practice on Access makes
express reference to preserving contact with a child's natural family,
including grandparents. It would be inconsistent with this aim if the
making of a care order were automatically to divest the grandparent of
all further rights in regard to access.
The applicants submit that they have no access to any
independent and impartial tribunal established by law to determine
their civil rights. It was not open to them to commence proceedings
for judicial review. The applicants were not invited to the meetings
at which the local authority made their decisions and have no access
to the relevant minutes and reports arising from those meetings. The
applicants do not know why they were rejected as possible carers for
D. or why it was considered to be in his interest that access to them
should cease. The applicants are unaware of the principles upon which
the local authority acted and of the matters the local authority took
into account. The applicants could not have obtained leave to
commence proceedings for judicial review without some concrete
evidence that the local authority had acted on wrong principles or
taken irrelevant matters into account.
The applicants would further submit that proceedings for
judicial review would not have constituted an effective remedy for the
determination of their civil rights. They would refer to the judgment
of the Court in W. v. the United Kingdom (loc. cit.) where the Court
found that the powers of the English courts as regards access did not
satisfy the requirements of Article 6 (Art. 6).
The applicants disagree that they could have requested the
Juvenile Court to allow them to make representations. The applicants
further submit that, as the Juvenile Court in care proceedings has no
power to adjudicate upon an application by grandparents for access to
or custody of their grandchild, any right of grandparents to make
representations to the Court would not constitute a remedy which
satisfies the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.
Article 13 (Art. 13) of the Convention
The applicants submit above that (1) the lack of procedural
safeguards whereby the necessity of the local authority's actions
could be tested and (2) the absence of effective remedies whereby the
applicants could challenge the local authority's decisions constituted
breaches of Article 8 (Art. 8). These matters when taken in conjunction with
Article 13 (Art. 13) constitute a breach of that article also.
As regards the Government's submissions that the applicants
could have intervened in any adoption proceedings, the applicants do
not accept that the applicants could have successfully intervened in
adoption proceedings. However, even if they had been made parties to
the proceedings the Court on hearing the application for adoption
would have had no power to make any order for access or custody in the
applicants' favour. The applicants therefore submit that this
procedure does not constitute an effective remedy which satisfies the
requirements of Article 13 (Art. 13).
THE LAW
1. Article 8 (Art. 8) of the Convention
The applicants complain that the refusal of the local
authority to allow access or adequate access to their grandchild in
September-November 1984, June-November 1985 and from 7 February 1986
onwards and their refusal to allow them to give him a home interferes
with their right to respect for their family life. They further submit
that the decisions of the local authority in respect of access,
custody and adoption were taken without their knowledge and without
affording them an opportunity to make representations and therefore
that the local authority showed a lack of respect for their family
life.
Article 8 (Art. 8) of the Convention provides:
"1. Everyone has the right to respect for his private
and family life....
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 have submitted that the concept of "family
life" as guaranteed by Article 8 (Art. 8) of the Convention requires more than
a bare relationship and that, in the present case, the ties between the
applicants and D. were not sufficiently close to fall within the scope of that
provision. The Government rely particularly on the fact that D. was not living
with the applicants.
The Commission recalls in this respect that the Court in the
Marckx case stated that "family life" within the meaning of Article 8
(Art. 8) includes at least the ties between near relatives, for instance those
between grandparents anmd grandchildren, since such relatives may play a
considerable part in family life (Eur. Court H.R., Marckx judgment of 13 June
1979, Series A No. 31 para. 45). Cohabitation however is not a prerequisite
for the maintenance of family ties which are to fall within the scope of the
concept of "family life". Cohabitation is one factor amongst many others,
though often an important one, to be taken into account when considering the
existence or otherwise of family ties.
The Commission recalls in this case that the applicants
visited D. regularly after his birth and that, during his first
admittance to hospital, both applicants visited him on a daily basis.
Throughout the events that followed, it is evident that the
applicants, so far as they were able, maintained contact with D.
through frequent visits and that they made known to the local authority
their concern for D. and their wish to offer him a home. In these
circumstances and having in mind the very young age of D. and the
history of his placement in care, the Commission finds that the
applicants established significant family ties with their grandchild
falling within the scope of "family life" as provided in Article 8
para. 1 (Art. 8-1) of the Convention. The Commission must therefore consider
whether there has been any interference with the applicants' right to
respect this aspect of their family life and, if so, whether it can
be justified under Article 8 para. 2 (Art. 8-2) of the Convention.
The Commission notes first of all that in normal circumstances
the relationship between grandparents and grandchildren is different
in nature and degree from the relationship between parent and child,
which has been recognised by both the Commission and Court as being of
fundamental importance (e.g. Eur. Court H.R., W. v. the United Kingdom
judgment of 8 July 1987, Series A No. 121). When a parent is denied
access to a child taken into public care this would constitute in most
cases an interference with the parent's right to respect for family
life as protected by Article 8 para. 1 (Art. 8-1) of the Convention, but this
would not necessarily be the case where grandparents are concerned.
Access of a grandparent to grandchildren is normally at the discretion
of the child's parents and, where a care order has been made in
respect of the child, this control of access passes to the local
authority. In the latter situation, there may be an interference by
the local authority if it diminishes contacts by refusing to
grandparents what is in all the circumstances the reasonable access
necessary to preserve a normal grandparent-grandchild relationship.
Regulation of access which did not go to that length would not of
itself show a lack of respect for family life.
In the present case, the applicants complain of a refusal of
access or of adequate access in respect of three periods: from end of
September to end of November 1984, from June to November 1985 and from
7 February 1986 onwards. They complain that these decisions were
taken without their knowledge and without being given an opportunity
to make representations. The Commission recalls that the first period
corresponded to D.'s first placement with foster parents following a
serious injury which had led to his hospitalisation. Access to D. was
resumed after less than two months when the local authority began a
programme of rehabilitating D. with his parents. As regards the
second period, it appears that the applicants were restricted to one
visit per week by the first applicant in company with D.'s mother. The
Government state that this restriction of access was imposed by the
local authority on the grounds that concentration needed to be placed
on the delicate and more important task of rehabilitating D. with his
parents.
Even assuming therefore that the six months rule provided
for in Article 26 (Art. 26) has been complied with, the Commission finds in
respect of these two periods, bearing in mind that at other times the
applicants apparently had unlimited access to D., that the restriction
of access by the local authority in the above circumstances did not
amount to an interference with their rights under Article 8 para. 1
(Art. 8-1) of the Convention and showed no lack of respect for those rights.
As regards the third period when the local authority decided
on 7 February 1986 (as confirmed on 19 February and 4 March 1986) to
terminate access completely and seek long-term placement and adoption
for D. outside his family, from which time the applicants have not
been allowed to see D. again and in view of the Commission's finding
of significant family ties between the applicants and D., the
Commission finds that these decisions, which in effect ended all
future contact between the applicants and D., constituted an
interference with their right to respect for family life contrary
to Article 8 para. 1 (Art. 8-1) of the Convention.
An interference with the right to respect for family life
entails a violation of Article 8 (Art. 8) unless it is "in accordance with
law", has an aim that is legitimate under Article 8 para. 2 (Art. 8-2) and is
"necessary in a democratic society" for the aforesaid aim. The
case-law of the Commission and the Court establishes that the notion
of necessity implies that the interference corresponds to a pressing
social need and that it is proportionate to the legitimate aim
pursued. In determining whether an interference is "necessary", the
Commission and the Court take into account that a margin of
appreciation is left to the Contracting States (see e.g. Eur. Court
H.R., Handyside judgment of 7 December 1976, Series A No. 24; Eur.
Court H.R., Johnston and Others, judgment of 18 December 1986, Series
A No. 112).
In the present case however it is not contested by the
applicants that the local authority's decisions were in accordance
with law and were designed to achieve a legitimate purpose, namely the
protection of D.'s health and his rights. They dispute however that
the interference was "necessary in a democratic society", on the
grounds that they were not sufficiently involved in the local
authority's decision-making and they had no effective remedy for
challenging the decision of the local authority.
As regards the question whether the interference was necessary
in a democratic society, the Commission recalls that the child D. had
been victim of a series of injuries since his birth and that the local
authority had come to the conclusion that they were non-accidental and
that it was necessary for D.'s physical safety and emotional security
to place him with a permanent substitute home beyond his natural
family. The Commission notes that the local authority had made
unsuccessful attempts to rehabilitate D. with his family and that the
applicants were able to make representations to the local authority
concerning D.'s future on several occasions. In these circumstances,
bearing in mind the margin of appreciation to be accorded to the
Contracting State, the Commission finds that the decision of the local
authority to terminate access to D. did correspond to a pressing
social need and was not disproportionate. The Commission accordingly
finds that in the present case the interference was necessary in a
democratic society within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
The applicants have also complained in respect of the
termination of access following 7 April 1986 that they were not
adequately consulted.
The Commission has therefore considered whether these
complaints of insufficient involvement in the decision-making process
disclose in themselves a failure to respect their family life. An
analogous issue was considered before the Court in W. v. the United
Kingdom (Eur. Court H.R., judgment of 8 July 1987, Series A No. 121)
in respect of parents, where it was stated:
"In the Court's view, what therefore has to be determined
is whether, having regard to the particular circumstances
of the case and notably the serious nature of the decisions
to be taken, the parents have been involved in the
decision-making process, seen as a whole, to a degree
sufficient to provide them with the requisite protection
of their interests. If they have not, there will have
been a failure to respect their family life and the
interference resulting from the decision will not be
capable of being regarded as 'necessary' within the
meaning of Article 8." (Art. 8)
In the present case however the Commission recalls that the
applicants are the grandparents, and not the parents of the child in
care, and the Commission finds that the difference in nature of this
relationship will normally not require a local authority to consult or
involve them in the decision-making process to such a degree as in the
case of natural parents.
The Commission recalls that the local authority decided to
terminate the applicants' access to D. on 7 February 1986 and that
this decision was confirmed at meetings on 19 February 1986 and
4 March 1986 in which it was also found that the applicants were not
suitable to care for D. full-time. The applicants were however
invited to make representations concerning access at three subsequent
meetings - on 25 March 1986, 2 April and 6 May 1986 - and were then
able to present their case for access to and/or custody of D.
On examination of the facts of the present case, the
Commission therefore finds that the views of the grandparents were
taken into account and they were able to make representations to the
local authority on several occasions in order to obtain a review of
the situation. The Commission finds that the degree of involvement in
the present case was sufficient to provide them with the requisite
protection of their interests as required by Article 8 (Art. 8) of the
Convention and accordingly there has been no failure to respect their
family life within the meaning of that provision.
It follows that these complaints must be dismissed as
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
2. Articles 6 and 13 (Art. 6, Art. 13) of the Convention
The applicants complain that they have no effective access to
court to apply for custody of and/or access to their grandchild
contrary to Article 6 (Art. 6) of the Convention.
The applicants also complain that they have no remedy in
respect of their complaints, since they had no locus standi within the
care proceedings and wardship proceedings would have been ineffective.
They invoke Article 13 (Art. 13) of the Convention in this respect.
The Commission finds that the complaints under Articles 6 and
13 (Art. 6, Art. 13) raise serious issues of fact and law and decides to
adjourn this part of the application.
For these reasons, the Commission
DECLARES INADMISSIBLE the applicants' complaints under
Artice 8 of the Convention,
DECIDES TO ADJOURN the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)