THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45035/98 by K.S. against the United Kingdom

The European Court of Human Rights, sitting on 25 September 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 11 September 1997 and registered on 17 December 1998,

Having regard to the Court’s partial decision of 7 March 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a United Kingdom national , born in 1963 and living in Grays, Essex. He is represented before the Court by Mr Tilbrook, a lawyer practising in Essex.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 11 February 1980, the applicant, who was just under 17 years’ old, was convicted of the indecent assault of his four year old niece and subjected to a two year supervision order. On 14 September 1991, when the applicant was 28 years old, he was cautioned by the police for an indecent assault in the summer of 1988 against another niece. On 24 February 1992, he was convicted of indecent assault on a third niece during 1990 and sentenced to three years in prison. He was released on 19 January 1994.

The applicant met J. on 9 July 1995. J had recently divorced H. during which marriage she had had two children, born in July 1979 and 1982. The applicant told J. about his convictions. They began living together in August 1995, though J.’s two children remained with their father H.

The applicant married J. on 15 June 1996 and their daughter G. was born on 28 June 1996. Shortly after the birth, G. was diagnosed as suffering from Herschman’s Syndrome, a bowel disorder, and spent a number of months in hospital.

On 19 July 1996, the family doctor drew the attention of the social services to the family when the applicant told him about his past convictions, which made him a sexual offender subject to supervision. Following a case conference on 28 August 1996, G. was placed on the child protection register. An agreement was reached with the parents and an in-depth assessment arranged. Until then the mother was to take primary responsibility for G. and the applicant would have supervised contact.

On 16 September 1996, G. was transferred to Great Ormond Street Hospital for assessment and the applicant signed an agreement with that hospital regulating his behaviour when visiting G. On 23 September 1996, the staff at Basildon hospital expressed concerns about the applicant dressing G. On 12 October 1996, the Basildon hospital presented the applicant with an agreement for signature which the applicant refused to sign. He stopped visiting his daughter because of the conditions imposed.

On 15 October 1996, the applicant and his wife agreed to attend the weekly sessions of two hours to be arranged by the NSPCC (National Society for the Protection and Care of Children) to enable a full assessment to be carried out and a report prepared. The applicant refused to attend a meeting with Social Services in Basildon hospital on 17 October 1996. On 22 October 1996, following a session with the NSPCC, a working agreement was presented for signature to the parents who were also told they should obtain legal advice before signing that agreement.

On 1 November 1996, the applicant and his wife wrote a letter indicating that they would not sign the agreement and that they were not happy with its terms. Further, they said they did not wish the NSPCC to continue with the assessment. However, on 18 November 1996, the agreement was signed by the parents and the assessment by the NSPCC proceeded.

On 9 December 1996, the applicant and his wife decided they were not prepared to continue with the assessment, having earlier in the day left in the middle of a session. On 11 December 1996, the applicant’s wife tried to remove G. from hospital and the following day an emergency protection order was granted. On 16 December 1996, G. was placed with a foster mother. On 20 December 1996, the magistrates court made the first of a series of interim care orders.

On 11 February 1997, G. had further remedial surgery and the applicant’s wife stayed with her in hospital and the applicant visited. G. returned to her foster mother on leaving hospital.

On 25 March 1997, the care proceedings were transferred to the county court. Attempts were then made to see if G. could be reunited with the applicant’s wife with appropriate safeguards, without success, as it did not prove possible to work out an agreement.

On 17 July 1997, the applicant’s application for increased contact was refused. In August 1997, the applicant obtained separate accommodation but remained in close contact with his wife. At the time, G. remained in the care of foster carers. On 23 September 1997, the venue for contact between the parents and G. was changed to a family centre.

The Essex County Council sought a care order. On 24 November 1997, a hearing was held to determine whether the threshold criteria for the granting of a care order had been met. The applicant was legally aided and was represented by leading and junior counsel. The judge heard from the applicant, the applicant’s wife, social workers, the NSPCC assessors, the guardian ad litem , a chartered psychologist, and two psychotherapists. The judge stated:

“My impression of the father is that, frankly, he is a weak man. In my judgment he has not yet come to terms with his offending against young females and he seeks to avoid all reference to his past, and to the conflicting statements he has made at various times, by blaming his memory ...

... I accept the will do all she can to protect , but in my judgment she will find it very difficult to completely monitor movements and to watch out for those signs of a move towards the grooming, sexualising and then possible abuse of her daughter.”

The judge made various findings. Firstly, he accepted that the applicant and his wife loved G. and loved each other. Secondly, he found that the applicant had not been completely honest about his past offending and doubted whether the applicant had given a completely truthful account. The applicant really only agreed with anybody who agreed with him. Thirdly, the applicant continued to place some blame for his offending on the child concerned and that child’s mother who put him in the situation because she was absent from the home and treated him as a babysitter. Fourthly, the judge noted the medical expert’s assessment that the risk at that point in time might be small but that risk was going to increase as G. developed. The applicant’s wife might not realise the dangers as the risk would develop by means of grooming and sexualising before moving on to physical sexual abuse. The judge felt that the applicant posed a risk to G. even at the moment of the hearing. Fifthly, there was a little ambivalence in the applicant’s wife’s approach. The judge felt she was pulled by her loyalty to the applicant and that the applicant had been able to use this to manipulate her to bring the NSPCC sessions to an end. Finally, the judge found that the applicant’s wife had a good track record as a parent.

The judge concluded that the threshold criteria for the granting of a care order were established. As the applicant’s wife gave an assurance that she would separate permanently from the applicant, the judge felt that steps should be begun towards placing G. with the applicant’s wife as soon as possible, subject to safeguards. The applicant promised he would not go to his wife’s home. G. returned home to the applicant’s wife on 16 December 1997.

On 18 December 1997 the applicant, acting in person, was refused leave to appeal to the Court of Appeal against the findings of the judge.

On 25 March 1998 the application for a care order came back before the county court and the local authority also applied for an order authorising them to refuse contact to the applicant. The applicant was represented by leading counsel. The local authority proposed that G. should continue living with the applicant’s wife on the understanding that the applicant’s wife continued to live apart from the applicant and terminated their relationship. The local authority submitted that this was essential to ensure that G. was fully protected against possible sexual abuse by the applicant. If the placement with the applicant’s wife broke down it was intended that G. would be placed with a permanent substitute family with a view to adoption.

The guardian ad litem , acting on behalf of G., stated in her report to the court:

“Neither , nor appear to believe that their marriage is over. They live in hope of being reunited one day, even if they have to wait until is grown up. has told me ... that she fully supports maintaining an ongoing relationship with her father, even if this is with supervision. She added that in a few years’ time will be able to make her own application to enable her to spend more time with her father. ... still care deeply for each other ... Their stated support of each other makes it difficult for the professionals to believe that they will be able to remain apart long term.”

The judge commented that he was troubled by this evidence as it appeared that the applicant’s wife still failed to appreciate the risk that the applicant posed to G. despite the medical evidence. He referred to the evidence from the parties and various experts who had knowledge of the field, including Dr H., a consultant psychiatrist, instructed by the applicant. Dr H. had stated:

“... I found immovable. He was adamant in his refusal to contemplate participation in any therapeutic process ...

I agree with the views that have been expressed that so long as remains untreated it is very likely that the dark forces within him that led him astray in the past will remain latent and thus there will be a constant risk of further deviant behaviour ...

So long as remains untreated I can see no alternative but for any contact that was allowed by the court to be supervised.”

The judge stated:

“I have a number of concerns... The first of these is, are still emotionally bound together. Secondly, does not accept the findings made by this court, and indeed, what was reported by a number of experts as to the risk that he poses his daughter. , sadly, seems to have difficulty in grasping the reality of those findings ...

... it seems to me, in the light of the risks posed by , and having regard to the fact that the risks will increase as matures, then after considering the welfare checklist, and in particular the matter of possible harm to the child - and it is harm, not significant harm, that I have to take into account - I unhesitatingly reach the view that this is a case where there is an absolute need for the court to make a care order ...”

The judge made a care order. As regards contact, the applicant’s counsel had not disputed that supervision was necessary and had proposed that the applicant should be granted six occasions of contact. The judge issued an order that contact between the applicant and G. should be professionally supervised and take place four times a year. The duration of that contact and the venue would be decided by the local authority. The contact needed to be professionally supervised because the applicant could not see that he needed to “do anything to try and put his life in order”. The judge also considered, in the light of all the evidence, that any form of contact between the parents should not be permitted.

The judge concluded:

“After reviewing all the evidence of the five day hearing in November and the further evidence filed at this hearing, I remain concerned about ability to manipulate , and sadly, I also remain concerned at inability to appreciate the risk that poses for , which, as was at pains to tell the court, will increase as this little girl matures. I consider that in the light of all the evidence and the current state of mind of the parents, that any form of contact between them should not be permitted.”

Leave to appeal to the Court of Appeal was refused.

On 24 April 1998, the applicant sought leave to appeal, as a litigant in person, seeking unrestricted contact with G. to be supervised by his wife. On 23 July 1998 the Court of Appeal refused the applicant leave to appeal. Lady Justice Butler-Sloss stated:

“[At the hearing] was represented before the judge by leading counsel and consequently had excellent advice and counsel on his behalf accepted that there had to be a separation of the parents of a permanent kind; accepted that the contact between and child would have to be supervised and that it would have to be infrequent. ... sought the assistance of a very distinguished child psychiatrist, Dr. H., who gave independent evidence by way of a report to the court and his evidence did not support case that he is not a risk to the child and that and child ought to be able to live an ordinary family life ...

The whole of these unhappy proceedings and the stark choice that had to be made by in order to obtain an order from the court that permitted her to resume the care of the two year old stems, I have to say, from position as a Schedule 1 Offender and it is very sad for this family ...

Our clear obligation under section 1 of the Children Act 1989 is to put the welfare of the child (in this case the child) as paramount and we have to be, as Parliament has told us to be, child orientated and not parent orientated. Looking at the history of this case, looking in particular at the independent evidence of Dr. H., which is devastating for case, in my judgment the judge had no alternative but to come to the conclusion to which he came, first in November [1997] that the section 31 criteria had been met and that the child was at risk and, secondly, that unless parted permanently the child was not safe to live with ...

... I do not think on the facts of this case, whatever might be the situation in other cases, as I have already said, that the judge had any alternative but to make the order that he made. He cannot in the exercise of his discretion be criticised for making it a care order on the basis that the mother had back to live with her and it can only be done on the basis that the marriage has to be broken in the sense that the mother and cannot live together and if they do will have to be removed. Because I see no alternative to that stark decision to which the judge came ... I can see no purpose in granting leave to appeal because my view is the appeal would be hopeless.”

The applicant continues to be separated from his wife and is not allowed contact with her. His contact with G. is supervised by the local authority.

According to recent letters from the applicant, during 2000, the local authority took G. back into care. His wife was permitted contact twice a week for one and a half hours in a contact centre. The local authority were intending to apply to have G. placed for adoption. The applicant and his wife were applying to discharge the care order and have G. returned to their care.

The applicant has submitted a report dated 29 March 2000 by a consultant clinical psychologist, which has been lodged in those proceedings. This states, inter alia , that after clinical consultations the psychologist considered that the applicant showed a neurotic rather than a personality disorder which had good prospects of responding to positive influences and that the absence of pathology and risk factors (e.g. no use of violence, opportunistic rather than preplanned abuse) in his case combined with the cumulative presence of positive health factors (his marriage, his now unconditional acceptance of responsibility for past offences) indicated that at this time he no longer posed a significant risk of sexual offending. The consultant expressed reservations that the interviews in the past with the applicant which were focussed on assessment of risk were an appropriate basis to draw conclusions about the applicant’s attitude to therapeutic issues.

B. Relevant domestic law and practice

The Children Act 1989

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

“1. Welfare of the child

(1) When a court determines any question with respect to -

(a) the upbringing of a child; or

(b) the administration of a child’s property or the application of income arising from it,

the child’s welfare shall be the court’s paramount consideration.”

Section 31 (2) of the Children Act 1989 states that

“ A court may only make a care order if it is satisfied

a) the child concerned is suffering or is likely to suffer significant harm, and

b) that the harm or likelihood of harm is attributable to care given to the child or likely to be given if the order were not made, not being what would be reasonable to expect a parent to give him.”

Procedure in cases under the Children Act 1989

Rule 4.16(7) of the Family Proceedings Rules 1991 states as follows :              “Unless the Court otherwise directs a hearing of, or directions appointment in, proceedings to which this Part applies shall be in chambers.              ... [T]his particular rule governs proceedings under the Children Act 1989 and provides that hearings are to be held in chambers unless otherwise directed. The Court therefore has a discretion to sit in open court.”

Availability to the public of judgments and other documents in cases concerning children

The Family Proceedings Rules 1991 provide in Rule 4.23 (1) that:

“Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies shall be disclosed, other than to a party, the legal representative of a party, the guardian ad litem , the Legal Aid Board, a welfare officer, without leave of the judge or district judge.”

Persons with a legitimate interest in a child case may apply to the court for leave to inspect and obtain copies of documents or evidence in any particular child care case and a party may apply for leave to disclose any document to a third party (cf. Re EC (Disclosure of Material) [1996] 2 Family Law Reports 725 and A County Council v. W and Others (Disclosure) [1997] Family Law Reports 574).

Section 12(1) of the Administration of Justice Act 1960 provides as follows:

“The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say:              (a) where the proceedings ( i ) relate to the exercise of the inherent jurisdiction of the High Court with              respect to minors;              (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing              of a minor.”

According to section 12 (2) of the Act, the above do not apply to the publication of the text or summary of the whole or part of the relevant court order.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that there was neither a public hearing nor a public pronouncement of judgment in the proceedings concerning his access to his daughter G.

The applicant also complains under Article 8 of the Convention that his access to his daughter G. has been restricted to four supervised visits per year.

THE LAW

Article 6 § 1 of the Convention provides, as relevant:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... . Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial ... where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

The Government submit that the purpose of the presumption that hearings about children should be held in private was, inter alia , to protect the private lives of children and to promote the administration of justice by encouraging the parties and witnesses to give full and frank evidence. In this case the judge had a discretion to hear the case in public and had to consider the matter if requested by one of the parties. This procedure was not inconsistent with Article 6 § 1 and reflected the practice adopted in the majority of the Member States of the Council of Europe. A requirement to decide on an individual basis in each of the 100,000 or more applications in England and Wales each year would lead to delay, additional costs for the parties and uncertainty and worry for those hoping for confidentiality.

They point out that the applicant had made no application for the case to be heard in public. If he had made such an application, the decision by the court would have been determined with reference to the factors contained in the express exceptions in Article 6. Such decision could manifestly have been justified in this case by reference to the protection of the private life of the child, the other children referred to in the case, the mother and the applicant himself. Similarly, the applicant had made no application for the judgment to be pronounced publicly and no reasons have been advanced to justify a public judgment in this case. The nature of the information contained in the judgments justified them being delivered only to the parties and their respective advisers.

The applicant submits that there was no purpose in applying to the court for the hearing to be in public or for judgment to be issued publicly since under current law and practice the law effectively required cases to be heard in camera without regard to the circumstances of the individual case. There was, to the belief of his advisers, no precedent of any child care case ever having been held in public. He argued that the proper approach was not to lay down an overriding principle that “the interests of the child are paramount” but to weigh the respective rights and interests of all concerned. While it may be proper to weigh the child’s interests more heavily, it should not automatically outweigh all other considerations as a rule of law. The domestic courts should weigh up rationally all the competing interests and rights.

The Court recalls that Article 6 § 1 of the Convention provides that, in the determination of civil rights and obligations, “everyone is entitled to a fair and public hearing”. The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, a fair hearing, the guarantee of which is one of the foundations of a democratic society (see the Sutter v. Switzerland judgment of 22 February 1984, Series A no. 74, § 26).

However, the requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Article 6 § 1 itself, which contains the proviso that “the press and public may be excluded from all or part of the trial ... where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. Moreover, it is established in the Court’s case-law that, even in a criminal law context where there is a high expectation of publicity, it may on occasion be necessary under Article 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice (see, for example, the Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, § 70; the Jasper v. the United Kingdom judgment, [GC], no. 27052/95, [16.2.00], § 52; the Z. v. Finland judgment of 25 February 1997, Reports 1997-I, § 99, and the T. v. the United Kingdom judgment, [GC], no. 24724/94, [16.12.99], §§ 83-89).

The proceedings which the present applicant complains should have taken place in public concerned the applications by the local authority for his daughter to be placed in care and the contact which she should have with him and her mother. The Court considers that such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment ( B. v. the United Kingdom and P. v. the United Kingdom (nos. 36337/97 and 35974/97 [Section 3] judgment of 24 April 2001, § 38)

While the Court agrees that Article 6 § 1 states a general rule that civil proceedings, inter alia , should take place in public, it has not found it inconsistent in this context for a State to designate an entire class of case as an exception to the general rule where considered necessary in the interests of morals, public order or national security or where required by the interests of juveniles or the protection of the private life of the parties (see the Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, §§ 87-88), although the need for such a measure must always be subject to the Court’s control (see, for example, the Riepan v. Austria judgment, [Section 3], no. 35115/97, [14.11.00], § 34). The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by Article 6 § 1 (see the above-mentioned B. v. the United Kingdom and P. v. the United Kingdom judgment, § 39).

Furthermore, even though the applicant submits that it would have been pointless for him to apply for the proceedings to be conducted in public, the Court observes that the English tribunals have a discretion to hold Children Act proceedings in public if merited by the special features of the case, and the judge must consider whether or not to exercise his or her discretion in this respect if requested by one of the parties. The applicant did not however make any application in this regard.

As regards the applicant’s complaint that the judgments of the domestic courts were not announced publicly, the Court recalls its long-standing case-law that the form of publicity given under the domestic law to a judgment must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1 (see the above-mentioned Sutter judgment, § 33). Thus in the Sutter case, for example, it found that the publicity requirement under Article 6 § 1 was satisfied by the fact that anyone who could establish an interest could consult or obtain a copy of the full text of judgments of the Military Court of Cassation , together with the fact that its most important judgments were published in an official collection (ibid., § 34).

Where, as in this case, the domestic authorities were justified in conducting the proceedings in chambers in order to protect the privacy of the child and the parties and to avoid prejudicing the interests of justice, the Court agrees with the Government that to pronounce the judgment in public would, to a large extent, frustrate these aims. It notes that anyone who can establish an interest may consult or obtain a copy of the full text of the orders and/or judgments of first instance courts in child care cases, and that the judgments of the Court of Appeal and of first instance courts in cases of special interest are routinely published, thereby enabling the public to study the manner in which the courts generally approach such cases and the principles applied in deciding them.

Having regard therefore to the nature of the proceedings and the form of publicity applied by the national law, the Court considers that a literal interpretation of the terms of Article 6 § 1 concerning the pronouncement of judgments would not only be unnecessary for the purposes of public scrutiny but might even frustrate the primary aim of Article 6 § 1, which is to secure a fair hearing (see, mutatis mutandis , the above-mentioned Sutter judgment, § 34 and B v. the United Kingdom and P. v. the United Kingdom , cited above, § 48).

The Court concludes that the Convention did not require that the proceedings be conducted in public or that the judgments in the present case should have been made available to the general public. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained of the restriction on access to his daughter, invoking Article 8 of the Convention which provides, insofar as relevant, as follows:

“1. Everyone has the right to respect for his …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 … for the protection of health or morals, or for the protection of the rights and freedoms of others .”

The Government submit that the decision limiting the applicant’s contact with G. was in accordance with the law and was necessary for the protection of the child’s rights. They point out that it was accepted by the applicant during the proceedings that any contact would have to be supervised and his case as advanced to the court in seeking contact on six occasions per year acknowledged that such a limitation would be a reasonable exercise of the judge’s discretion, particularly as rehabilitation was not an option. The judge heard the case over seven days, with evidence from both parents, social workers and five experts, and had a substantial body of written evidence before him. In line with the judge’s conclusion from the evidence that as long as the applicant remained untreated there was a constant risk of further deviant behaviour by him, his decision to limit contact to four supervised occasions was supported by relevant and sufficient reasons and necessary to protect G. from the risk of sexual abuse.

The applicant submits that the allegations made against him concerning the alleged risk which he posed to G. were wild and based on unscientific, impressionistic evidence, referring in particular to the reservations as to methodology expressed by the clinical psychologist in a recent report. He considers that the approach of the local authority in this case was hostile and prejudiced against him. In effect he was required as a suspected parent of proving that he was risk free. He argues that there was no genuine evidence that he would re-offend. In particular, the previous offences were not of a ‘predatory sexual offender’ and only came to light because he felt guilty and went to the police. Moreover, they occurred when he was a youth. Since his time in prison, he has reconstructed his life, got a job and is married to an older woman. In the circumstances, he considers that there has been a failure properly to balance his rights against the other considerations. He does not agree that he accepted that six visits per year would be reasonable and states that this was the position taken in court in order to salvage the most from the situation.

The Court finds that the decision of the court to restrict the applicant’s contact with his daughter interfered with his right to respect for family life. It has accordingly examined whether this interference complied with the requirements of the second paragraph of Article 8, namely, whether it was “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.

It is not disputed by the parties that the decision lay within the competence of the court and was “in accordance with the law.” Nor is it in issue that the court’s decision pursued the legitimate aim of safeguarding G. in the sense of the protection of health and her rights as a whole.

The question remains whether the decision was “necessary in a democratic society”. In this context, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55, and, mutatis mutandis , the Bronda v. Italy judgment of 9 June 1998, Reports 1998-IV, p. 1491, § 59).

The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, the Johansen v. Norway judgment of 7 August 1996, Reports 1996-III, p. 1003, § 64).

Turning to the facts of the present case, the Court recalls that it has already found in its partial decision on admissibility of 7 March 2000 that the decision to take G. into care was justified under Article 8 of the Convention in the light of the evidence before the court that the applicant had previously committed sexual offences against young children and that there was a risk that he would re-offend.

The Court notes that the applicant continues to dispute that this was a justifiable conclusion to reach, relying in particular on a recent psychological report which expresses the opinion that the applicant poses little risk. However, this report was not before the court when it decided the contact issues and its relevance and reliability will be assessed in the latest set of proceedings which are not in issue in this application. The Court recalls that before reaching his decision on contact the judge heard  evidence from the applicant and the local authority, including considerable expert evidence. The applicant was represented by counsel and a solicitor and was afforded a fair and effective opportunity to place before the court any factors militating in his favour.  In this Court’s view, the judge’s findings as to the continued risk posed by the applicant were supported by relevant and sufficient reasons, in particular the applicant’s failure to pursue the assessment agreed with the NSPCC, his own expert’s report that he was adamantly opposed to participation in any therapeutic process, and that, without treatment, there was a constant risk of further offending.

That said, the restriction on access visits to four supervised occasions per year is a severe limitation on the ability of the applicant to maintain or develop his relationship with his child. However, as pointed out by the Government, due to the applicant’s intransigence with regard to co-operating with any assessment or therapeutic process, there was no possibility of pursuing the rhythm of contact visits apt for rehabilitating parent with child. In the light of the continued risk which the domestic courts found was posed by the applicant, it cannot be regarded as disproportionate that the visits be carried out under supervision. The Court observes that the applicant during the proceedings requested only six occasions during the year. While he argues that this was a tactical stance taken in court, it nonetheless was a tacit acknowledgment by the applicant that frequent contact would not be a reasonable expectation.

Having regard in addition to the sensitive and difficult family dynamics in this case, where the authorities had doubts as to the mother’s ability to protect G. arising from her refusal to acknowledge the risk posed by the applicant, the Court considers that the judge’s decision concerning the number of contact visits struck a proper balance between the interests of the applicant and the need to provide G. with protection and security.

The Court concludes that the interference in this case may be regarded as necessary in a democratic society for the purpose of protecting the health and rights of G. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares inadmissible the remainder of the application.

S. Dollé              J.-P. Costa Registrar President