FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41382/98 by Geraldine DEMPSEY against Ireland

The European Court of Human Rights ( Fourth Section ), sitting on 6 April 2000 as a Chamber composed of

Mr M. Pellonpää, President , Mr G. Ress, Mr A. Pastor Ridruejo, Mr V. Butkevych, Mrs N. Vajić, Mr J. Hedigan, Mrs S. Botoucharova, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 16 January 1998 and registered on 27 May 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Irish national, born in 1963 and living in Dublin. She is represented before the Court by Collins Crowley and Company, a firm of solicitors practising in Dublin.

A. Particular circumstances of the case

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

The applicant is the natural mother of three children born on 18 June 1984, 25 May 1988 and on 14 June 1991. At the time of the birth of her third child (“D”), the applicant had a history of substance abuse and of depression. Her relationship (often violent) with the father of D had ended, he having commenced a long prison sentence. D was placed in an incubator when he was born until his discharge from hospital on 2 July 1991. On that date, the applicant signed the Admission to Care form to have D placed in pre-adoptive foster care under the supervision of the Eastern Health Board and D was immediately handed over to foster parents. On 25 July 1991 D was placed with the prospective adoptive parents. On 20 December 1991 the applicant signed the final consent form for the adoption.

Having recovered from her drug addiction, the applicant wished to obtain the return of D and to challenge the consent to adoption she had signed. Having received notification dated 3 July 1992 that the final adoption order would be made, on 7 July 1992 she requested An Bord Uchtála (the Adoption Board) not to proceed with the adoption and on 17 September 1992 notified the Adoption Board orally that she wanted her child back. By letter dated 30 September 1992 the Registrar of the Adoption Board confirmed to the applicant that her consent for the adoption would be regarded as withdrawn.

In September 1992 the applicant went to the Legal Aid Board where she was informed that she would have to wait over two months for an appointment to discuss a legal aid application and that there was a three year delay before the Legal Aid Board could act. She did not, therefore, fill out the necessary legal aid application forms. She returned twice to that office and failed to obtain legal aid or advice. Given that time was of the essence for the applicant, as D was living still with the prospective adoptive parents, she consulted a voluntary agency and a social worker who put her in touch with a firm of solicitors (her current legal representatives). She contacted that firm of solicitors in January 1993. The latter took instructions, instructed Counsel and on 25 February 1993 issued proceedings on behalf of the applicant seeking sole guardianship of the child pursuant to section 11 of the Guardianship of Infants Act 1964. Since it was clear to her representatives that the applicant, a single impecunious mother, could not discharge their fees, they contacted the Legal Aid Board by telephone in August 1993. The latter confirmed that, while the applicant would qualify for legal aid in relation to her means, there remained the issue relating to that Board’s view of the merits of her case. No legal aid application forms were filled out at that stage.

On 20 May 1993 the prospective adoptive parents also issued proceedings to dispense with the applicant’s consent to adoption and seeking sole custody of D for the period required to make the adoption order. The prospective adoptive parents were legally aided. The High Court hearing in both proceedings took place over 13 days in July and November 1993. The High Court heard substantial evidence from social workers, a medical doctor, a psychiatrist, a psychologist, the applicant and from the prospective adoptive parents. It took three days to deliver the judgment orally (25, 26 and 30 November 1993). The High Court found, on the facts, that the applicant’s consent for adoption had been freely and properly given. As to the best interests of D, it was noted that D had been with the prospective adoptive parents for almost two and a half years and that it was considered that the evidence was that a move at that stage would be traumatic for D and could damage his future capacity to make sound and trusting relationships. It was considered that D had been placed in a household where he would receive great love, care and attention. The High Court ordered that the applicant’s consent to adoption be dispensed with pursuant to section 3(2) of the Adoption Act 1974, that the Adoption Board be authorised to make an adoption order and that the prospective adoptive parents have custody of D for a further six months, a period calculated to allow the adoption to be completed. The High Court made a “strong recommendation that the Legal Aid Board look favourably” on the applicant’s representatives’ request that her costs of the two proceedings be discharged by that Board.

The applicant’s representatives and the Legal Aid Board subsequently failed to resolve the matter, the Legal Aid Board taking the view that since no application forms had been filled out, no legal aid certificate had issued and that it did not therefore have the power to make the payment, even under section 8(3) of the Legal Aid Scheme. On 19 December 1994 the applicant’s representatives brought the issue of legal costs before the High Court.

On 1 February 1996 the High Court gave judgment on the costs issue. It commented that the hallmark of the applicant’s case was “meticulous preparation and careful presentation”. It referred to the “modest” sums claimed by the applicant’s representatives and, in that context, noted that the applicant herself had made it clear that she regarded her case as having been fully put before the Court. It also took note of the applicant’s inability to obtain legal aid or assistance urgently in 1992 and that, accordingly, the required forms for applying for legal aid were not filled out at the time. In that court’s view it would have been a grave injustice if the natural mother’s costs were not met because her legal representatives, who presented her case “diligently and ably”, would in practical terms not be remunerated. The High Court considered that the applicant would have qualified for legal aid had she applied on time, given the nature of the case and her financial circumstances. It was found that, if an order for costs was made against the prospective adoptive parents, the applicant’s case would fall within the terms of section 8(3) of the Legal Aid Scheme. The court therefore made an order for costs against the prospective adoptive parents but put a permanent stay on the order and obtained an undertaking from the applicant not to enforce those costs.

On 17 May 1996 the Supreme Court gave judgment on the prospective adoptive parents’ appeal from this costs order against them. The Supreme Court accepted that neither the applicant nor the prospective adoptive parents were in a position to discharge the former’s legal costs. The Supreme Court considered that, while the High Court’s order was intended to allow payment to the applicant under section 8(3) of the Legal Aid Scheme, the High Court had acted without jurisdiction. The Supreme Court allowed the prospective adoptive parents’ appeal and set aside the order of the High Court. The Chief Justice (with whom two of the other judges concurred) stated, inter alia , as follows:

“I with regret because I fully appreciate the efforts made by the solicitor who undertook the case on behalf of the natural mother in accordance with the highest traditions of both branches of the profession, that they were not going to let a person who had the constitutional right of access to the courts be deprived of that by reason of the apparent and alleged delays in the administration of the civil legal aid scheme. It is unfortunate that there should have been such delays if they existed which deprived the natural mother of the possibility of getting a certificate of legal aid in time in order to deal with a matter which was of extreme urgency. The Court has from time to time been faced with problems caused by delay in the bringing and prosecution of appeals against decisions of the High Court in respect of these proceedings and to a very considerable extent, these delays have been substantially contributed to by the costs of the proceedings, the difficulty which existed in obtaining a certificate for the civil legal aid in time in order to bring these proceedings to a fairly rapid conclusion. In many cases because of the delays, the Court has often found it obliged not to alter the status quo with regard to children involved because they had grown up and were six and seven years old and irrespective of the rights and wrongs, obviously the paramount interest of the child required that they be left where they were irrespective of the merits of the application of the natural mother.

I have, as I said, felt obliged to allow the appeal … but do so with regret because it would be much more desirable if access to the courts were made easier for people in the position of the natural mother. She would not have been entitled to or able to avail of that access were it not for the action of her solicitor in undertaking the case and it is in my opinion regrettable that there is not in existence or was not at the time a system whereby a solicitor in the position of the solicitor in this case could obtain reasonable remuneration for his efforts. The problem about making a recommendation to the Legal Aid Board even at this stage is compounded by the fact that they say that they had no power to accede to the recommendation, so no useful purpose would appear to be served in making any further recommendations in this regard.”

B. Relevant domestic law

Section 4(8)(2) of the Legal Aid Scheme provides that a certificate which is granted after the commencement of the proceedings in respect of which it is sought will not be extended to cover any action taken or costs incurred prior to the issue of the certificate.

Section 8(3) of that scheme provides that the Legal Aid Board may make ex gratia payments towards the costs of an unaided person but only in cases where the costs have been awarded against a legally aided person and provided that, inter alia , the proceedings in the court of first instance were instituted by the unsuccessful legally aided person.

COMPLAINTS

The applicant complains under Article 6 of the Convention about a violation of her right to a fair trial and under Article 8 about an unjustifiable failure to respect her family life with her son D, because she did not have free legal aid and advice as a result of the inability of the Legal Aid Board promptly to deal with her application. She also submits that, as a consequence, her proceedings did not issue until February 1993.

She invokes Article 14 of the Convention in conjunction with Articles 6 and 8 submitting that she could not get legal aid as required whereas the adoptive parents were legally aided. Finally, she invokes Article 13 in conjunction with Articles 6, 8, and 14 of the Convention arguing that she had no effective domestic remedy in respect of these violations of the Convention.

THE LAW

1. The applicant complains under Article 6 of the Convention about a violation of her right to a fair trial and under Article 8 about an unjustifiable failure to respect her family life with her son D, arising out of the lack of free legal aid and advice consequent on the absence of urgent reviews by the Legal Aid Board of certain applications. She also submits that, as a consequence, her proceedings did not issue until February 1993. Article 6 § 1, in so far as relevant, reads as follows:

“In the determination of his civil rights …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Article 8, in so far as relevant, reads 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 the rights and freedoms of others.”

It is established case-law of the Court that the guarantees of Article 6 apply to proceedings which are decisive for the future relations between a natural mother and her child (see, for example, H v. the United Kingdom judgment of 8 July 1987, Series A no. 120, p. 58, § 69). It is also recalled that Article 6 guarantees effective access to court in the determination of civil rights, which guarantee includes, in certain cases, the assistance of a lawyer when such assistance proves indispensable by reason of the complexity of the case in question ( Airey v. Ireland judgment of 9 October 1979, Series A no. 37, pp. 15-16, § 26).

It is also considered that decisions to dispense with the natural mother’s consent for the adoption of her child, to approve the making of an adoption order and to award custody in the meantime to the prospective adoptive parents, constitute interferences with that mother’s right to respect for her family life (see, for example, Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, pp. 17-18, §§ 44 and 55 and pp. 19-20, § 51). An interference with the right to respect for family life entails a violation of Article 8 unless it was “in accordance with the law”, had an aim or aims that is or are legitimate under Article 8 § 2 and was “necessary in a democratic society” for the aforesaid aim or aims. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, for example, W v. the United Kingdom judgment of 8 July 1987, p. 27, § 60). The Court would note, at this point, that the applicant does not assert that the domestic court decision was not “in accordance with the law” or lacked a legitimate aim. The material before this Court contains nothing to suggest that the first of these requirements, as interpreted in the Court’s case-law (see, for example, the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, pp. 31-33, §§ 66-68), was not satisfied. Neither is there any evidence that the measures taken were not designed to achieve a legitimate purpose, namely the protection of health or of the rights and freedoms of others.

It is further recalled that, while Article 8 contains no explicit procedural requirements, the Court is entitled to have regard to the decision-making process by which the rights, in this case, of the natural mother are determined in order to conclude whether that process has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the mother’s interests protected by Article 8. In this respect, what is important is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the applicant was involved in the decision-making process, seen as a whole, to a degree sufficient to provide her with the requisite protection of her interests. If she has not, the failure will be regarded as a failure to respect family life and the interference resulting therefrom will not be capable of being regarded as “necessary” within the meaning of Article 8. In conducting this review, the Court may have regard to the length of the decision-making process in question as in cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court, which latter issue deserves to be examined solely in light of all relevant considerations and not by the mere effluxion of time (the above-cited W v. the United Kingdom judgment, at pp. 28-29, §§ 62-65).

As regards the applicant’s complaints about the failure to provide her with free legal aid and advice, the Court does not consider that the applicant can claim to be a victim of a denial of effective access to Court within the meaning of Article 6 or of a deficiency in the decision making process as a whole which denied her the requisite protection of her interests guaranteed by Article 8. The applicant was in fact legally represented throughout the domestic proceedings taken by her and which issued against her. Both the High and Supreme Court commented favourably on the quality of her legal representation and it was noted by the High Court that the applicant herself agreed that she regarded her case as having been fully put before the Court. There is no indication that the applicant has been pursued by her legal representatives for the outstanding costs and, indeed, it is clear from the judgments of the domestic courts that her representatives did not intend pursuing their impecunious client. Accordingly, this complaint of the applicant is incompatible ratione materiae with the provisions of the Convention and, as such, must be declared inadmissible pursuant to Article 35 § 3 of the Convention.

As to whether the alleged delay in issuing the proceedings, because of the inability of the Legal Aid Board to deal urgently with her application, denied her effective access to court or violated the procedural guarantees of Article 8, it is noted that approximately five months passed between her first consultation with the Legal Aid Board and the date on which her legal representatives issued the summons which commenced her proceedings. In addition, it is noted that the age of the applicant’s child at the date of High Court judgment of 30 November 1993 (being 2 years and 5 months approximately) combined with that child’s attachment to the prospective adoptive parents were important factors in that court’s decision to dispense, in the best interests of D, with the applicant’s consent to the adoption. However, her own legal representatives, about whom she does not complain, required one month approximately to take instructions, instruct counsel and issue the necessary summons. Accordingly, even if the delay in issuing proceedings is attributable to the lack of an urgent legal aid application procedure, this delay would effectively amount to four months approximately. However, the evidence before the High Court was such that, even if D had been four months younger, the Court considers that this would not have affected the domestic court’s decision. Accordingly, the Court concludes that it has not been demonstrated that the delay allegedly attributable to the Legal Aid Board of approximately four months led to the de facto determination of the matters before the High Court or in any way undermined the effectiveness of her access to court in respect of these matters. These complaints are, accordingly, manifestly ill-founded and, as such, inadmissible pursuant to Article 34 § 3 of the Convention.

2. The applicant also invokes Article 14 of the Convention in conjunction with Articles 6 and 8 submitting that she could not get urgent legal aid as required whereas the adoptive parents, who were wealthier, were legally aided. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, ... social origin, ... birth or other status.”

The Court recalls that, in the enjoyment of rights and freedoms guaranteed by the Convention, Article 14 protects against different treatment of persons in analogous positions, for which different treatment there is no objective and reasonable justification (see, for example, The Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, p. 32, § 58, and Hoffmann v. Austria judgment of 23 June 1993, Series A no. 255-C, p. 58, § 31).

The applicant essentially complains that both she and the prospective adoptive parents were legal aid applicants but were treated differently, the latter obtaining legal aid and advice in time for their proceedings and despite their advantageous financial position. However, given the absence of any information or detail as regards the circumstances in which the prospective adoptive parents obtained legal aid, the reasons for the grant of legal aid or about their financial circumstances, the Court concludes that the applicant has not demonstrated a discriminatory difference in treatment within the meaning of Article 14 of the Convention. In any event, as noted above, the applicant was in fact assisted by competent representatives in her legal action and has not therefore been able to demonstrate any way in which she was a victim of the discrimination she alleges.

This complaint is manifestly ill-founded and, as such, inadmissible pursuant to Article 34 § 4 of the Convention.

3. Finally, the applicant invokes Article 13 of the Convention in conjunction with Articles 6, 8, and 14 arguing that she had no effective domestic remedy in relation to her inability to obtain prompt legal aid and advice. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Since the applicant’s complaints under Articles 6 and 13 overlap in this particular case, the Court does not deem it necessary to determine whether there has been a failure to observe the requirements of the latter Article; the requirements of Article 13 are less strict than, and are absorbed by, those of Article 6 (the above-cited Airey judgment, p. 18, § 35). As regards her complaints under Article 13 in conjunction with Articles 8 and 14, it is also recalled that Article 13 requires a remedy in domestic law only if the individual can be said to have an “arguable claim” of a violation of the Convention (Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52). In the light of its conclusions above, the Court does not consider that the applicant’s complaints under Articles 8 and 14 demonstrate “arguable claims” of a violation of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President