Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17852/91

by Johna and Dorothy MURPHY

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 1 April 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 November 1990

by John and Dorothy Murphy against the United Kingdom and registered

on 27 February 1991 under file No. 17852/91;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is an Irish citizen born in 1933 and

resident in Manchester. The second applicant is a British citizen born

in 1937 and resident in Manchester. The facts as submitted by the

applicants may be summarised as follows.

The first applicant had two sons, N. born on 6 October 1977 and

M. born on 16 April 1983. The first applicant's wife died in 1987 and

the children apparently were cared for by the first applicant and

intermittently by his adult daughter J. Social work involvement with

the family began in August 1988. In September 1988, the first

applicant and Social Services apparently agreed that M. should be

placed with the second applicant, who was an approved foster-parent.

M. had already been placed with the second applicant by the first

applicant.

Disagreement as to the care and welfare of the children appears

to have developed between J. and the first and second applicants.

On 10 May 1989, N. and M. were made wards of court on the

application of J. By interim order of the High Court of 11 May 1989,

N. was placed with J. and M. ordered to remain with the second

applicant.

On 6 November 1989, the Court ordered that both N. and M. should

stay with J.

In December 1989, the first and second applicant were married.

J. was experiencing increasing difficulties in coping with both

children. Their schools were also expressing concern about their

allegedly emotionally disturbed behaviour. On 11 April 1990 the Court

Welfare Officer left both children at the applicants' home pending a

hearing in court next day to consider their future.

On 12 April 1990, the court ordered that the Social Services

have liberty to place N. and M. with short-term foster-parents. The

Social Services were concerned that the children had suffered

psychological damage and required therapeutic treatment. That evening,

a number of policemen called at the first applicant's home to remove

the children. N. refused to go and was forcibly removed. The

applicants allege that both children were removed by force and that N.

was handcuffed. The children were kept at the police station until the

arrival of a representative of the Social Services. N. and M. were

placed separately. The Social Services considered that N. put pressure

on M. and that separation would be the best way to meet their needs and

to make assessments of them. N. ran away to return home on a number

of occasions. M.'s foster-placement broke down and he was placed in

a series of children's homes.

The applicants became concerned about N.'s health in or around

September 1990 (he was complaining of headaches) and consulted their

doctor who had recommended referral to hospital. N. was staying with

the applicants at this period, having run away from the children's home

to which he had been sent. The Social Services by letter dated 6

September 1990 objected to the steps taken by the applicants and

informed them that before any treatment could take place the leave of

the court had to be given. Court approval was given on 7 September

1990 and N. was admitted to hospital.

N. was discharged from hospital despite the applicants'

continued concern for his health. On 15 October 1990 N. committed

suicide. An Inquest was ordered but adjourned, pending the compilation

of a report on the Social Services' involvement with N.

On 2 November 1990, the Court ordered that M. be subject of

psychological assessment, with access by the applicants at the

discretion of the Social Services.

On 8 May 1991, the Court made an order with the consent of the

applicants that M. remain in the care of the Social Services, that he

be placed in a special children's centre and that access be granted to

the applicants. His placement was to be reviewed in November following

further psychological assessment. The applicants had been advised to

consent to the order by their legal representatives on the basis that

the court would have refused to return M. to their care and that they

should concentrate on developing access on a meaningful basis with a

view to rehabilitation at a later date.

The inquest concerning N. was held on 14 November 1991. The jury

returned an open verdict.

The first applicant began weekly access visits to M. in November

1991. The consultant psychiatrist reported that the visits were

proving positive and beneficial. The second applicant's access started

in December 1991.

COMPLAINTS

The applicants complain that they have been denied justice and

their human rights. They complain of the way N. and M. were taken into

care on 12 April 1990 and of their separation and treatment in care.

They wish for the return of M. to their care. They do not invoke any

particular provision of the Convention.

THE LAW

The applicants complain of a number of matters concerning the

taking into care of their children by the Social Services.

The Commission has examined their complaints under Article 8

(Art. 8) of the Convention which provides as follows:

"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 applicants complain of the decision of the Court

giving custody of N. and M. to the Social Services and the actions of

the police in removing them, the Commission finds that it is not

required to decide whether or not the facts alleged by the applicant

disclose any appearance of a violation of this provision, as Article

26 (Art. 26) of the Convention provides that the Commission "may only

deal with the matter ... within a period of six months from the date

on which the final decision was taken". Where there has been no final

decision, the six months time-limit runs from the date of the act or

decision complained of.

In the present case, even assuming the applicants have

exhausted domestic remedies, the court decision committing the children

to the care of the local authority and the police actions to implement

that decision took place on 12 April 1990, whereas the application was

submitted to the Commission on 4 November 1990, that is, more than six

months after those events. Furthermore, an examination of the case

does not disclose the existence of any special circumstances which

might have interrupted or suspended the running of that period.

It follows that this part of the application has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

b) Insofar as the applicants complain that their children were

separated when they were taken into care and of their treatment in

care, the Commission recalls that it may only deal with a matter after

all domestic remedies have been exhausted as required by Article 26

(Art. 26) of the Convention.

The Commission notes that the applicants did not apply to the

High Court, raising their concern that interests of the children

required that they be kept together. The Commission recalls that the

High Court had been seized in its wardship jurisdiction and had the

competence to deal with all issues relating to the welfare of the

children.

It follows that the applicants have not complied with the

condition as to the exhaustion of domestic remedies and this part of

the application must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

c) The Commission has also examined the applicants' complaints

concerning the fact that M. remains in care of the Social Services. The

Commission recalls that the decision of the Court of 8 September 1991

to this effect was consented to by the applicants on the advice of

their legal representatives with a view to working gradually towards

rehabilitation. The Commission notes that the Court has also ordered

that further psychological assessment be made of M., that the

applicants be given access and the matter continue to be reviewed. The

matter of M.'s long-term future has therefore yet to be decided. The

Commission also notes that access has now begun and is considered to

be proving a success.

In these circumstances, the Commission finds no indication of

a violation of the applicants' rights under Article 8 (Art. 8) of the

Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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MURPHY v. THE UNITED KINGDOM

MURPHY v. THE UNITED KINGDOM

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