THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

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

The European Court of Human Rights ( Third Section ), sitting on 7 March 2000 as a Chamber composed of

Mr J.-P. Costa, President , Sir Nicolas Bratza, Mr L. Loucaides, Mr P. Kūris, Mr W. Fuhrmann, Mrs H.S. Greve, Mr K. Traja, 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 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 a British national, born in 1963 and living in Grays, Essex, England.

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

A. Particular circumstances of the case

On 11 February 1980, the applicant, who was just under 17 years’ old, was convicted of indecent assault of his four year old niece and subject 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 parole 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 ... still feel deeply for each other ... Their stated support makes it difficult for the professionals to believe that they will be able to remain apart long term.

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. ”

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 Heller , a consultant psychiatrist, instructed by the applicant. Dr Heller had stated:

“ ... I have found immovable. He was adamant in his refusal to contemplate participation in the 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 there will be a constant risk of further deviant behaviour ...

So long as remains untreated I can see no alternative but for contact 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 risk 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 and 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 that applicant could not see that he needed to “do anything to try and put his life in order”. He also stated in his judgment that he 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 remained 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. Heller , 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 which 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. Heller , 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 the case, whatever may 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 in my view 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.

B. Relevant domestic law and practice

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. ”

COMPLAINTS

1. The applicant complains that he did not receive a fair hearing as required by Article 6 of the Convention. He alleges that the burden of proof was on him and he was in effect retried for past offences. He alleges the court took into account offences with which he has never been charged. He complains that legal aid does not give financial assistance to litigants in person and that solicitors in such cases are more used to acting for victims of sexual abuse. He further complains that the courts are precluded from altering the care plan put forward by the local authority, which has to be accepted or rejected in its entirety, and that this discloses an improper fetter on the courts’ judicial discretion. Finally, he complains that there was neither a public hearing nor a public pronouncement of judgment.

2. The applicant invokes Article 7 of the Convention, in relation to the supervision imposed on him by the Sexual Offenders’ Act 1997, which came into force after he committed the offences in question. Accordingly, he claims that he suffered a heavier penalty than was applicable at the time the criminal offence was committed.

3. The applicant also invokes a breach of his right to respect for his family life and home under Article 8 of the Convention. He complains that he has had to separate from his wife and is to have no contact with her, that he only has restricted supervised contact with his daughter, even though no offence had been committed or contemplated in respect of her, and that his doctor and consultant breached client confidentiality when referring his case to the social services without his consent or knowledge, and his daughter was taken away from the family.

4. The applicant complains that his right to freedom of thought and conscience under Article 9 of the Convention has been interfered with as the local authority state that they will only consider allowing him to return home to his family if he undergoes psychiatric treatment and has been cleared by psychiatric opinion.

5. The applicant complains that there has been a breach of Article 12 of the Convention as his right to continue his married life and to found a family with his wife has been terminated.

6. Finally, the applicant claims that there has been a breach of Article 5 of Protocol No 7 to the Convention, as not only has his contact with his daughter been restricted, but he is not consulted about any decisions that the local authority make in relation to her welfare.

THE LAW

1. The applicant makes several complaints of a breach of Article 6 § 1 of the Convention. Firstly, he states that the burden of proof was on him and he was retried for past offences. Secondly, he claims that it was unfair that the legal aid authorities did not give any financial assistance to him as a litigant in person and that solicitors who acted for him were more used to acting for victims of abuse. Thirdly, he states that as the court was unable to amend the local authority care plan the court’s discretion was restricted thereby denying him a fair hearing. Finally, the applicant alleges that he was denied a public hearing and the judgment was not pronounced publicly.

Article 6 of the Convention, so far as is relevant, states :

“ 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, 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. ”

a) The Court considers the applicant’s first complaint under Article 6 is misconceived and ill-founded. The applicant was not himself on trial and the courts were concerned with the welfare of a minor, not with finding him guilty or otherwise of past or new offences. His allegations are unsubstantiated.

b) In respect of the second complaint, this appears to the Court to in fact be an allegation of breach of Article 6 § 3 (c) of the Convention. However, there is no right as such under the Convention to a contribution to expenses from public funds in cases concerning civil rights and obligations or where an individual has chosen to represent himself in person. The Court notes that the applicant was in receipt of legal aid at the principal hearings on 24 November 1997 and 25 March 1998, when he was represented by leading counsel. His lack of representation at any other hearings appears primarily to have been a matter of his own choice.

c) In respect of the applicant’s third allegation of a breach of Article 6 § 1, the Court is not required to consider whether the judge’s inability to change the care plan fettered his discretion as, on the facts of this case, the care plan was approved in any event. The Court notes that issues may arise under Article 6 concerning the fairness of the hearings in which a parent’s rights are determined. However the fact that a court decides against a parent or is alleged to have reached the wrong decision is insufficient to disclose a violation. This Court is not a court of appeal and will not interfere with decisions made by at a domestic level. There has to be an element of procedural unfairness which, for example, renders it impossible effectively for the parent to participate. There is no such evidence of unfairness in this case.

In conclusion, the Court finds that these three complaints under Article 6 must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention

d) Finally, the applicant complains under Article 6 he was denied a public hearing and public pronouncement of judgment. The Court notes that similar issues are pending determination in the case of Pelling v. the United Kingdom, no. 35974/97, declared admissible on 14 September 1999. The Court considers therefore that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) [Note1] of the Rules of Court, to give notice of it to the respondent Government.

2. Article 7 of the Convention

The applicant complains of a breach of Article 7 of the Convention because, after his imprisonment, the law was changed by the Sex Offenders Act, which introduced continuing supervision of certain sex offenders.

Article 7 § 1 of the Convention provides:

“ 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ”

The Court notes that the applicant has not given any details of the effect of the Sex Offenders Act on his situation. It recalls that in a previous case, Adamson v. the United Kingdom case (No. 42293/98, dec. 26.1.99), it examined this legislation. It found that the conditions imposed on released sex offenders were automatic and administrative and did not involve the imposition of a criminal penalty. The Court sees no basis on which to differ from this conclusion in the present case.

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.

3. Article 8 of the Convention

The applicant complains that there has been an interference with his right to respect for family life and his home under Article 8 of the Convention as he has been forced to separate from his wife and only has supervised contact with his daughter. Further he states that his doctor breached client confidentiality when referring his case to the social services without his consent or knowledge.

Article 8 of the Convention provides:

“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ”

a. Insofar as the applicant complains that the decisions of the courts have forced him to leave his home and separate from his wife, the Court finds that these may be considered to disclose an interference with his right to respect for his home and his family life within the meaning of the first paragraph of Article 8 of the Convention.

The Court recalls that the decisions were taken by the courts under the Children Act 1989, which sets out provisions to safeguard the welfare of children. It finds that they were “in accordance with the law” and pursued the legitimate aim of protecting the health and rights of G.

As regards the necessity of the measures, the Court’s case-law establishes that this notion implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim. The Court takes into account the margin of appreciation accorded to the Contracting States which are in principle in a better position to make an initial assessment of the necessity of a given interference, particularly where the domestic courts have heard the witnesses and evidence concerning the issues. However, the Court retains a supervisory jurisdiction, and must determine whether the reasons adduced by the courts to justify an interference are relevant and sufficient (see, amongst other authorities, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 29, §§ 67-68).

In the present case, the Court observes that before reaching his decision of 25 March 1998, upheld on appeal on 24 April 1998, the judge had previously heard evidence, inter alia , from the applicant, his wife, social workers from the local authority, an independent social worker and various medical experts. He granted a care order on the basis that G. would live with the applicant’s wife and that the applicant’s wife would cease all contact with the applicant. He based his decision on his findings that the applicant, who had failed properly to address or take responsibility for his serious offences against young children, posed a danger to G., and the applicant’s wife would be unable to protect G. from that danger if the applicant remained in the home or she had contact with him. The Court notes that the judge relied on medical evidence from the applicant’s own medical expert as to the existence of that risk and on evidence that the applicant’s wife had been vulnerable to manipulation by the applicant. It also appears that the applicant’s counsel accepted during the proceedings that there had to be a separation of the parents and limited, supervised contact. The Court accordingly finds that the judge’s decision was based on relevant and sufficient reasons.

The Court also considers that this decision cannot be regarded as disproportionate. In the initial stages of the social services’ involvement, the applicant and his wife were encouraged to participate in an assessment scheme. However, they chose to withdraw. The applicant also refused to envisage forms of therapy or treatment proposed by way of a safeguard against any risk of offending behaviour occurring with G.

The Court therefore finds that the interference may be regarded as justified, being “necessary in a democratic society” for the protection of the health and rights of G. 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.

b. Insofar as the applicant complains of limitations on his access to his daughter, the Court notes that restrictions on access to a child or deprivation of custody of a child are generally an interference with a parent’s right to respect for family life under Article 8 § 1 of the Convention (see the Johansen v. Norway judgment of 7 August 1996, Reports 1996-III, pp. 1001-1002, § 52). Having regard to the issues which arise, the Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) [Note2] of the Rules of Court, to give notice of this complaint to the respondent Government.

c. Insofar as the disclosure by his doctor to the social services of information relating to his previous sexual offences may be regarded as an interference with his right to respect for his private life under Article 8 § 1 of the Convention, the Court finds that it may be justified with the meaning of the second paragraph.

The Court notes that the applicant does not allege that the disclosure was in breach of any requirements of domestic law as regards confidentiality and, in any event, it observes that he has not pursued any domestic remedies alleging breach of confidence.

Further, the disclosure may be regarded as pursuing the legitimate aim of safeguarding the health and rights of others, namely G., since the social services, who were under a statutory obligation to protect the welfare of children in their jurisdiction, had a legitimate concern to receive information which was relevant to the existence of a potential risk to G. about a sexual offender being in the same household. The Court does not find that the effects of this disclosure were disproportionate or that the applicant was deprived of the necessary procedural safeguards concerning the use and publication of this information (see eg . the Anne-Marie Andersson v. Sweden and M.S. v. Sweden judgments of 27 August 1997, Reports 1997-IV p. 1418, § 41, and p. 1449-1450, §§ 39-44).

Consequently, any interference in the applicant’s right to respect for private life may be said to be justified as being “necessary in a democratic society” for the protection of 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.

4. Articles 9 and 12 of the Convention

The applicant complains that there has been an interference with freedom of thought and conscience under Article 9 of the Convention because the local authority will only consider allowing him to return home to his family if he undergoes psychiatric treatment. He also complains that there has been a breach of Article 12 of the Convention, which guarantees the right to marry, as he has been prevented from continuing his married life and to found a family with his wife.

Insofar as the applicant’s complaints fall within the scope of Article 9 of the Convention, the Court finds that any interference may be considered justified under its second paragraph for the same reasons outlined above in respect of Article 8 § 2, namely, that the measure is necessary for the protection of others. Insofar as the court decisions may be regarded as interfering with the applicant’s right to marry and found a family, the Court finds that they were in accordance with national laws and cannot, in the circumstances of the case, be regarded as disproportionately restricting the exercise of his right.

It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

5. Finally, the applicant invokes Article 5 of Protocol No. 7, which provides for equality of rights and responsibilities between spouses. However, as the United Kingdom has not ratified this Protocol, the Court finds that the complaint is incompatible ratione personae and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints that the hearings in the care proceedings were not held in public, that judgment was not publicly pronounced, and that his contact with his daughter was restricted;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa

Registrar President

[Note1] Change as necessary.

[Note2] Change as necessary.