Lexploria

AS TO THE ADMISSIBILITY OF

Application No.12763/87

by Terence LAWLOR

against the United Kingdom

The European Commission of Human Rights sitting in private on

14 July 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 February

1987 by Terence LAWLOR against the United Kingdom and registered

on 3 March 1987 under file No. 12763/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts as they have been submitted on behalf of the

applicant by his legal representative, P. William Ackroyd, solicitor

of London, may be summarised as follows:

The applicant is a British citizen living in London. He is a

retired consultant psychiatrist.

The applicant is the father of two daughters, A and B both

living in London. Since 1976 B, the younger daughter, has exhibited

disturbing behaviour and has been unable to live an independent life.

A daughter was born to B on 29 October 1981. The father of

the child is not married to B, and he takes no interest in her care

and has not seen her since shortly after her birth.

Following the child's birth, the child lived at home with the

applicant and his wife, her grandparents, together with A and B. B

was unable to contribute in any substantial way to the care of her

child and the applicant, his wife and A assisted in the care of the

child.

On 21 January 1985, B was admitted to hospital and since that

date has largely been living away from home.

On 3 April 1985 the applicant's wife died and on 12 April 1985,

with the consent of the applicant, the child was received into care on

a voluntary basis by the Social Services Department of the local

authority under Section 2 of the Child Care Act 1980.

Between 12 April 1985 and 19 July 1985 the child was placed

with short-term foster parents, and the applicant and A had frequent

and unlimited access to the child. The applicant states that he saw

the child approximately five times a week and that A saw her three to

four times a week.

After consultation with, inter alia, the applicant at a

meeting, the local authority decided on 10 July 1985 to transfer the

child to temporary foster parents. It was envisaged that a period of

18 months would be involved in this placement.

On 19 July 1985 the child was moved to live with another

foster parent. Following this, the applicant's access to the child

was reduced to once a week, and A's access to the child was reduced

to twice a week. The applicant accepted that for the immediately

foreseeable future, the child could not be cared for by her own

family, and that it was necessary that she be placed in the care of an

alternative family. The applicant, however, remained dissatisfied

with the access which was granted to him, and the approach of the

local authority to the question of access and to his complaints in

relation to it.

There passed between the applicant and the local authority a

certain amount of correspondence and there were a number of meetings.

In a letter dated 15 July 1985 the social worker for the local

authority, referring to a meeting held with the applicant the previous

week, commented:

"Although (the child) has progressed very well, I think

that we all agree that she has still some catching up to

do and this is going to take time and effort from both

(the child) and her foster parent. Whilst we accept the

importance of the family contact, it is necessary in order

to prevent confusion for (the child), and also that her

future can be concentrated upon, that visiting is now less

frequent. I would suggest that you visit once a week, which

should be negotiated with (the foster parent)."

In a reply dated 17 July 1985 the applicant stated that once a

week was too little to keep contact between his family and the child

and that he could not accept that the frequency of his visits could

cause confusion. A meeting took place on 23 August 1985 to discuss

the case and the applicant attended, with a representative from the

Family Rights Group. The applicant expressed his desire to have his

access increased but no decision was taken to do so. On 1 October

1985 a case conference took place involving the applicant, the purpose

of which was to review the future plans for the child bearing in mind

the mother B's inability and reluctance to look after the child. The

applicant again requested increased access, which was refused.

Following this meeting the applicant, assisted by a social

worker with the Family Rights Group, made enquiries of the local

authority by letter dated 7 October 1985 as to his right of appeal

against the local authority's decision concerning his right to access

to the child. He was initially informed by the local authority that

he had no right of appeal against the local authority's decision.

Following an exchange of correspondence, the local authority amended

their previous statement concerning the lack of any appeal procedure

and informed the applicant by letter dated 22 January 1986 that an

aggrieved person could write to the Director of Social Services

setting out the basis of his complaint. The Director would then

investigate the matter. The local authority commented that there was

no formal procedure for appealing against decisions concerning access,

although a formal procedure had been prepared and was awaiting final

comments before being implemented.

On 20 February 1986, A attended a meeting with the local

authority and agreed that adoption was in the best interests of the

child and that she wished to have continued access to the child.

On 14 March 1986 the social worker with the Family Rights

Group wrote to the local authority expressing concern that plans were

being made for the child's future without there being any discussion

with the applicant. The applicant was then invited to a meeting with

the local authority on 18 April 1986 in which the following proposal

was going to be made:

"We are proposing to recommend to our Adoption and Fostering

Panel that adoption by a substitute family is in (the child's)

best interests with access by her aunt (A). The case for this

will be presented at the first opportunity to the Panel for

its approval."

A meeting took place on 18 April 1986 at which both the

applicant and A were present and the Minutes of the meeting recorded:

/87

"The Social Services' representatives could see no exceptional

reasons for (the applicant) to have access to (the child) in

the way described for (A). The closeness and significance of

(the child)'s relationship with her aunt (A) was emphasised,

and overall it was felt that (the child) should only have

access to one close person in her natural family, and in this

case, it should be (A)."

At that meeting the applicant, who was accompanied by a

representative of the Family Rights Group, was given the opportunity to

put forward his views, although it appears that at that time his views

were not acceptable to the local authority, who considered that it

would not be in the child's best interests that there should be

continuing access for the applicant. The local authority subsequently

took a different view and were prepared to recommend that the

applicant be allowed some access to the child. The Adoption and

Fostering Panel decided on 16 June 1986 that an adoptive family should

be sought who would be willing to allow access to both A and the

applicant.

The applicant was, however, concerned as to the possibility of

a change in the local authority's attitude and sought to ensure that

there should be some lasting contact between himself and the child.

He therefore instituted wardship proceedings on 20 May 1986 against

the local authority. The applicant, in these proceedings, sought

long-term arrangements for his own and A's contact with the child and

to provide for the child's care and control. The local authority

however submitted that the court had no power to review the decision

made by the local authority. The local authority cited A v. The

Liverpool City Council (1982) A.C. 363 as the relevant authority

for their proposition that the court had no power to review the local

authority's decision. The local authority referred to Section 2

subsection 2 of the Child Care Act 1980 which provides that a child

taken into voluntary care shall be kept in the care of the local

authority so long as it appears to them that the child's welfare

requires it and the child has not attained the age of 18.

The local authority cited the following passage from A v.

The Liverpool City Council concerning whether or not the High Court

has the jurisdiction to review the decision of the local authority:

"This leads to the next and decisive question: given that

both the High Court and the local authority have

responsibilities for the welfare of the child, what is

the relationship, or the dividing line, between them?

I think that there is no doubt that the appellant, the

child's mother, is arguing for a general reviewing

power in the court over the local authority's discretionary

decision; she is, in reality, asking the court to review

the local authority's decision as to access and substitute

its own opinion on that matter. Access itself is undoubtedly

a matter within the discretionary power of the local authority.

In my opinion the court has no such reviewing power. Parliament

has by statute entrusted to the local authority the power and

the duty to make decisions as to the welfare of children without

any reservation of reviewing power to the courts."

Judgment was given in the wardship proceedings on 14 August 1986

in which the judge accepted the local authority's argument that the

court had no jurisdiction to intervene. The judge considered whether

there was any basis on which the local authority's decision could be

questioned under the Wednesbury principle and concluded that it

could not be said that the local authority had taken anything into

account which they ought not to have taken into account, or had not

taken into account matters which they should have taken into account.

The judge therefore discharged the wardship.

Following 14 August 1986, the applicant and A continued to have

access to the child, and the local authority sought an adoptive family

with whom to place the child, who would agree to allow the applicant

and A to have access. Following a meeting on 19 January 1987 Social

Services decided that it was best for the child for access by the

applicant and A to be reduced from weekly to fortnightly in order to

effect the transfer from the foster parents to the prospective

adoptive parents. A discussion of this change was held with the

applicant and A on 19 January 1987 at the foster parents' home.

The Adoption Panel met on 26 February 1987 and proposed access

from the applicant and A on a roughly two-monthly basis. It also

decided to recommend a Mr. and Mrs. R as prospective adopters.

The applicant and A were involved in the preparation of the

child for the move. They met the prospective adopters before the

child went to live with them and continued access for the applicant

and A was discussed with Mr. and Mrs. R, who appeared favourable.

Access from the applicant and A has continued since then. On 9 April

1987, the child moved to live with Mr. and Mrs. R.

An application for an order to free the child for adoption was

made to the court on 28 August 1987 and the matter was heard on

9 December 1987. The applicant was represented at the hearing and was

made a party to the proceedings. The applicant consented to the

freeing order.

The applicant states that he has no right to question the

decisions of the local authority if they decide to seek a family who

refuses access to himself and A, and that decision will not be subject

to any judicial review. The applicant states that he could have

appealed against the decision of 14 August 1986 on a matter of law to

the Court of Appeal and the House of Lords, but it was clear that he

had no grounds for appeal in law against the said decision.

Furthermore the applicant states that if the local authority acted in

breach of its administrative responsibilities, the applicant could

apply for judicial review. Such procedure would not however deal with

the merits of the decision, but merely with the method by which that

decision was arrived at. The courts have made it clear that they

are not willing to interfere with the way in which local authorities

make decisions about children in their care.

Relevant domestic law and practice

Voluntary care

Section 2 of the Child Care Act 1980 (the 1980 Act) provides:

"(1) Where it appears to a local authority with respect to

a child in their area appearing to them to be under the age

of 17 -

(a) that he has neither parents nor guardian or has been

and remains abandoned by his parents or guardian or

is lost; or,

(b) that his parents or guardian are, for the time being

or permanently, prevented by reason of mental or bodily

disease or infirmity or other incapacity or any other

circumstances from providing for his proper

accommodation, maintenance and upbringing; and

(c) in either case, that the intervention of the local

authority under this section is necessary in the

interests of the welfare of the child,

it shall be the duty of local authority to receive the child

into their care under this section.

(2) Where a local authority have received a child into their

care under this section, it shall, subject to the provisions

of this part of this Act, be their duty to keep the child in

their care so long as the welfare of the child appears to them

to require it and the child has not attained the age of 18.

(3) Nothing in this section shall authorise a local authority

to keep a child in their care under this section if any parent

or guardian desires to take over the care of the child, and

the local authority shall, in all cases where it appears to

them consistent with the welfare of the child so to do,

endeavour to secure that the care of the child is taken over

either -

(a) by a parent or guardian of his; or

(b) by a relative or friend of his, being, where possible,

a person of the same religious persuasion as the child

or who gives an undertaking that the child will be

brought up in that religious persuasion."

Section 87(1) of the 1980 Act defines "relative" so as to

include inter alia a grandparent or aunt.

The right of any parent or guardian to resume caring for a

child in care under Section 2 of the 1980 Act is restricted by Section

13 in cases where the child has been in care for six months under

Section 2. Section 13(2) requires (in effect) that the parent or

guardian shall obtain the consent of the local authority to the

resumption of possession, or that 28 days' notice of intention to

resume care should be given, in such a case.

However, if a parent requests the return of the child, the

authority are not compelled to comply regardless of the child's

welfare (Lewisham London Borough Council v. Lewisham Juvenile Court

Justices <1979> 2 All ER 297). If they then consider the transfer of

care to the parent to be inconsistent with that welfare they may

either pass a parental rights resolution or apply to make the child a

Ward of Court. There was no request for the return of the child in

the present case (the mother being incapacitated by illness and

favourably disposed to fostering and adoption and the father having

apparently abandoned any interest in the child), and therefore no

parental rights resolution was passed. The provision of the 1980 Act

for the assumption by a local authority of parental rights and duties

is, so far as it may be relevant, as follows:

"Subject to the provisions of this part of this act, if

it appears to a local authority in relation to any child who

is in their care under Section 2 of this act -

entitle the local authority to act>

the local authority may resolve that there shall vest in

them the parental rights and duties with respect to that

child, and, if the rights and duties were vested in the

parent on whose account the resolution was passed jointly

with another person, they shall also be vested in the

local authority jointly with that other person."

Until a parental rights resolution is passed or wardship

proceedings are started, all the rights and duties of parenthood

remain vested in the parents regardless of any incapacity or other

circumstance preventing them from exercising those rights and duties.

The exercise of its functions by a local authority under Section 2 of

the 1980 Act is done in loco parentis and the duties thereunder

are duties which cannot lawfully be exercised in the face of parental

disagreement. Where there is disagreement with the parents a local

authority may take the steps outlined above (a parental rights

resolution or the institution of wardship proceedings).

In the present case the mother was incapacitated and the

father had abandoned the child. The role of the mother was at the

material time being discharged by A until the child was taken into

care. Insofar as there were parental rights however, these remained

in the mother not in A, nor in the applicant.

Code of Practice on Access to Children in Care

Section 12G of the 1980 Act (added by amendment in 1983)

obliged the Secretary of State to prepare, and from time to time to

revise, a code of practice with regard to access to children in care.

The Code of Practice on Access to Children in Care was duly

laid before Parliament and has been in force since 30 January 1984.

Paragraphs 28 to 31 of the Code of Practice deal with cases of

disagreement on matters of access involving parents and other

relatives and state as follows:

"Local authorities should ensure that they have clear

procedures which will enable parents to pursue complaints

about access and ask for decisions to be reviewed. Local

authorities should also be prepared to use these procedures

to deal with the complaints about access decisions from

other relatives of children in care.

Schemes of delegation should provide for difficult

situations to be brought to the notice of senior officers.

Arrangements should be made for parents to discuss their

anxieties and dissatisfactions with such officers, if

they feel they have reached an impasse with their social

worker; and for their situation to be reviewed, if

necessary, by the Director of Social Services.

Local authorities will also need to provide arrangements

for Members to consider cases where the Director has found

that he cannot satisfy the complaint of a parent. Such

cases of difficulty may include, for example, those where

access has been restricted to intervals which parents

consider provide insufficient opportunity to maintain

their links with a child."

Wardship

Wardship jurisdiction is exercised by the Family Division of

the High Court or, since 28 April 1986, to a limited extent by County

Courts. It is a prerogative jurisdiction at common law and is largely

independent of statutory provisions. When a child becomes a ward of

court a court assumes responsibility for all aspects of his welfare.

It may, for example, make orders as to where the child has to live,

with whom, who may have access to him, and as to his religion,

education and marriage if under 18. In determining what orders to

make, the High Court is required by Section 1 of the Guardianship of

Minors Act 1971 to have regard to the child's welfare as the first and

paramount consideration. A court may grant care and control of the

child to a person or body, for example a local authority, but that

person or body may only act in accordance with the court's

directions. The court may also give care and control to one person or

body and make a supervision order, at its own discretion or under

Section 7(4) of the Family Law Reform Act 1969, in favour of another

person or body. A child remains a ward of court until either he has

attained his majority or the court orders that he shall cease to be a

ward of court. No important step can be taken in the child's life

without the court's consent (Re S (1967) 1 All ER 202 at 209).

Anyone, not merely a parent or a local authority, who can show

an appropriate interest in a child's welfare can apply for a child to

be made a ward of court. Section 41(1) of the Supreme Court Act 1981

provides that no child may be made a ward of court other than by a

court order. The application for the order must be made by

originating summons in the High Court. The procedure is set out in

Order 90 of the Rules of Supreme Court. The child becomes a ward of

court immediately the originating summons is issued. However, unless

an appointment for the hearing of the summons is made within 21 days,

the wardship automatically lapses. The appointment will generally be

before a registrar who gives directions as to what is to be done

before the case may be heard before a judge. He may also make an

order as to access if the person with the physical custody of the

child agrees. The registrar may also decide if any other interested

parties to the proceedings should be so joined. Any party

dissatisfied with the decision of the registrar may appeal to a judge

in chambers. When the proceedings are heard before the judge he

either confirms the wardship or makes an order terminating wardship.

There is a right of appeal from the judge in chambers to the

Court of Appeal, and thereafter (with leave) to the House of Lords.

In exceptional circumstances an appeal may be direct to the House of

Lords. Interested persons with insufficient means are able under

Section 7 of the Legal Aid Act 1974 to obtain legal aid for the

representation of their interests in wardship proceedings.

Once a child has become a ward of court, it remains open to

any party to bring the case back to the court for a variation of the

original order granting wardship or for directions on matters such as

access or education.

The courts have emphasised that the wardship jurisdiction is

not an alternative form of appeal from the decision of a juvenile

court concerning the care of a child under the 1969 Act. The

relationship between the responsibilities for the care of children

given by statute to local authorities and those exercised by the High

Court under wardship jurisdiction was explained in the leading

judgment of Lord Wilberforce in the House of Lords case A v. Liverpool

City Council (1981) 2 All ER 385 in particular at pages 388-9 in which

it was stated that wardship jurisdiction could not be exercised by the

courts to review the merits of local authorities decisions within the

field of discretion committed by statute to the local authority.

Adoption legislation

Before a child can be placed for adoption, the Adoption

Agencies Regulations 1983 which govern pre-placement procedure require

a full investigation of each case where adoption is under

consideration. Before a local authority can make adoption placement

decisions they must receive their Adoption Panel's recommendations.

Adoption orders can only be made after consideration by the adoption

court of the question of whether the parents agree to the making of an

adoption order or the court dispenses with their agreement in

accordance with Section 12 of the Children Act 1975, or the child is

free for adoption (see below). The proceedings would generally

include the prospective adopters, the local authority and the child's

parents. The court may include any other person (including

grandparents) as it may at any time direct (rule 15(3) of the Adoption

Rules 1984). The court will have before it, in addition to any other

evidence which any of the parties may wish to introduce, a report from

the local authority as the placing agency covering the matters

specified in Schedule 2 to those rules.

Section 8(7) of the Children Act 1975 allows an adoption order

to contain such terms and conditions as the court thinks fit. The

Court of Appeal has held that a condition in an adoption order giving

a right of access to the child to its natural parent would only be

made in unusual and exceptional circumstances, and that although the

court could impose such a condition as to access, such access would

ultimately depend on the adopters' agreement (Re M (A Minor) (Adoption

Order: Access) <1986> IFLR 51 and Re V (A Minor) (Adoption: Consent)

<1986> 1 All ER 752).

Freeing for adoption

Section 14 of the Children Act 1975 gives power to the court

to free a child for adoption where, on an application by an adoption

agency, the court is satisfied in the case of each parent or guardian

of the child that she/he freely, and with full understanding of what

is involved, agrees generally and unconditionally to the making of an

adoption order, or that his/her agreement to the making of an adoption

order should be dispensed with on a ground specified in Section 12(2)

of the Act. A grandparent can apply to be made a party to these

proceedings, under rule 4(3) of the Adoption Rules 1984.

Grandparents and grandchildren

Under domestic legislation grandparents generally do not have

legal rights over their grandchildren. Any rights which may exist

over children are normally vested jointly in the children's parents if

they are married. In considering the award of custody of a child to

any person or an issue relating to a child's upbringing such as access

a court must give first and paramount consideration to the welfare of

the child (Section 1 of the Guardianship of Minors Act 1971). Where a

child is in the care of a local authority by virtue of a compulsory

care order a grandparent of that child does not have a right to apply

for custody or access but must rely on the local authority's

discretion to afford contact with the child (which could include

access or the child living with the grandparents) where this would be

in the child's best interests. Section 18 of the Child Care Act 1980

requires the local authority to give first consideration to

safeguarding and promoting the welfare of the child throughout his

childhood and such contact with the grandparents would therefore have

to be consistent with the child's welfare.

Under domestic legislation grandparents may be parties to or

involved in the following proceedings in relation to their

grandchildren:

(i) Pursuant to Section 14A of the Guardianship of Minors Act

1971, where, under Section 9(1) of the Act, an order giving

access or custody to the father or mother is in force, the

Court may, on application of a grandparent of the minor,

make an order requiring access to the minor to be given

to the grandparent.

(ii) Grandparents may commence wardship proceedings, or apply to

be joined as parties to wardship proceedings commenced by

any other person, and may ask for any order which is in

the interest of their grandchild. However, as stated above,

wardship proceedings cannot be used to challenge the decisions

of local authorities taken under their statutory powers.

(iii) Where the child concerned is living with the grandparents

they may apply for a custodianship order in respect of him

under the Children Act 1975. This provision is applicable to

any relative of the child with whom the child has been living

for the preceding three months where the person with legal

custody of the child gives his consent. The provision also

applies to any person with whom the child has been living

for a period of 12 months (including the preceding three

months) where the person with legal custody consents.

(iv) In cases where the child is living with the grandparents

and various statutory requirements have been satisfied

grandparents may apply for an adoption order. These

requirements apply to any prospective adopter.

COMPLAINTS

The applicant contends that his right to apply for access to

his grandchild is a civil right and that he has no such right under

English law because his grandchild is subject to a care order under

Section 2 of the Child Care Act 1980. The applicant also states that

he has no right to make an application in respect of his grandchild in

wardship proceedings in view of the decision of the House of Lords in

A v. The Liverpool City Council (1982 A.C. 363). The applicant

complains that in the determination of his civil rights he has no

access to an independent and impartial tribunal established by law

from which he could obtain a fair hearing pursuant to Article 6 para.

1 (Art. 6-1) of the Convention.

The applicant also complains that there has been a violation

of his right to respect for family life under Article 8 (Art. 8) of the

Convention. He alleges that the legislation and application of

legislation as set out in decided cases by the courts in relation to

children in the care of local authorities is in breach of Article 8

(Art. 8) and that the law is not necessary in a democratic society.

He furthermore complains that he has no effective remedy

before a national authority in violation of Article 13 (Art. 13) of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 February 1987 and

registered on 3 March 1987. The Commission decided on 14 July 1987 to

bring the application to the notice of the respondent Government and

invite them to submit observations on its admissibility and merits.

The Government's observations were submitted on 16 December

1987, after a three week extension of the time-limit. The applicant's

observations in reply were submitted on 28 March 1988, after a one

month extension of the time-limit.

SUBMISSIONS OF THE PARTIES

A. The respondent Government

1. The facts

Merton Social Services first became aware of the problems

facing the family of the applicant as a result of the disturbed state

of the child's mother in June 1984. Contact was made with the

applicant and A, and A, concerned that there was no-one to care for

the child during the day (she was at work and the applicant's wife was

ill), arranged for a daily minder. On 11 April 1985, after the death

of the applicant's wife, A visited the Social Services and discussed

the question of the child's reception into care. The applicant also

visited the Social Services the same day and discussed the same

question. It was agreed with both the applicant and A that the child

should be taken into voluntary care.

The initial placement was with short-term foster parents who

lived about a 20 minute car journey away from the applicant's house.

In this context "short-term" is generally taken to be a period of

about eight weeks, recognising the danger of delay in making decisions

regarding very young children. At this time it was believed that the

child would be in care for a relatively short time before being

returned to the family home. The applicant and A therefore had

regular and frequent access to the child during this period. From the

start it was apparent to the social worker that the child had a very

strong relationship with A. Her relationship with the applicant

appeared to be less important to her. From about the end of May 1985

onwards, however, it became increasingly a matter of doubt whether A

would in fact be able to care for the child in the long term. The

views of A and the views of the applicant on this subject did not

coincide. A found living at home increasingly difficult, and, in

fact, she moved out permanently on 28 June 1985 to an address which

she kept secret from the applicant.

After the child was moved to a temporary foster parent on

19 July 1985, the applicant was asked to reduce his visits to once a

week, in order to give everyone time to assess the situation regarding

the child, and to give A time to consider whether she would indeed

become the prime carer of the child. The request was made at the

meeting on 10 July 1985 and was notified in writing by the social

worker's letter of 15 July 1985. A was to visit twice a week and, in

addition to his regular weekly visits, any unused visits could be

taken up by the applicant if he wished.

Once A had moved away from the family home to her own

accommodation, it became clear that the case had altered from being

one of short-term care and rehabilitation with the natural family to

one where it was probable that permanent substitute care would be

required. There was a reassessment of the contact between the family

as a whole and the child. At this point, both the applicant and A had

some access to the child although less than hitherto. The Social

Services viewed access to the family as a whole (applicant and A)

rather than to consider the applicant, or A, in isolation. The views

of the professional social workers concerned were that the interests

of the child were better served by maintaining links with A, with whom

she had a strong relationship, than with the applicant.

The applicant did not accept the reduction in access, the

reasons for which were given in the social worker's letter of 15 July

1985. He sought and was given an opportunity to discuss the matter

with officers of the local authority, with the benefit for him of the

attendance of a social worker from the Family Rights Group. This

meeting took place on 23 August 1985. It was attended by the

principal physician in child health for the District Health

Authority. It became apparent from this meeting that the applicant

had remained under the impression that A was going to resume the care

of the child, a mistaken belief which may well have influenced his

opinion expressed above concerning the proposal to reduce access to

the family. He did not thereafter take immediate steps to pursue the

matter of access further. Nevertheless he still wished to have his

access increased.

Shortly before the meeting on 23 August 1985, A had expressed

the view to the social worker that the child's best interests would be

served by adoption since she was unable to offer the right form of

home. Shortly after the meeting the same view was volunteered by the

mother. It was against this background that a case conference was

held on 1 October 1985 for the express purpose of reviewing plans for

the child and her mother. The applicant was given notice of this case

conference and attended it. It is evident from the record of the

conference that the child had made progress in overcoming a

developmental delay which had previously been noticed, and that the

applicant still harboured the thought that the child might be adopted

by A, a view which she did not then share. He sought more access at

the case conference but was refused it. Following an exchange of

correspondence, the applicant was informed of the possibility to bring

any complaints about decisions to the notice of the Director of Social

Services. The letter written to the Director of Social Services on 5

February 1986 by the Family Rights Group in response to that letter

did not amount to a request for the Director to investigate a

complaint on the applicant's behalf. Rather it dealt with the issue

of when an appeal procedure on access could be enforced, and what the

procedure would be. The result was that the applicant did not in fact

pursue any grievance which he may have had concerning the limited

amount of access afforded to him.

A finally decided that adoption was the best of the choices

for the child in February 1986. There had by then been extensive

discussions as to whether she could take over the care of the child.

The applicant was not a part of those discussions because contact

between the applicant and A was extremely difficult at that time and

separate confidential discussions between the various family members

were necessary. Although the applicant was not directly involved in

the discussion, he was notified of the decision of A. It is clear

from the Family Rights Group letter of 14 March 1986 that he accepted

it. A statutory review of the case was held on 18 April 1986 which

the applicant, A and the Family Rights Group attended. An earlier

discussion with the applicant could not take place because of the

responsible social worker's illness. The review considered what might

happen should the child be adopted. The Social Services

representatives recognised the importance of A to the child but did

not see any exceptional reasons for the applicant to have access to

the child in the way described for A. The applicant was given an

opportunity to put forward his views. The review did not curtail the

applicant's access to the child but recommended to the Adoption and

Fostering Panel that the child should be placed for adoption with

access from A.

On 26 June 1986 the Adoption and Fostering Panel recommended

adoption for the child with access from A and included the option of

access from the applicant. The applicant's solicitor had submitted a

letter on his behalf to the Panel and so the Panel had the opportunity

to take into account his views. The local authority wrote to the

Family Rights Group on 30 June 1986 informing them of the decision

that adoptive parents would be sought from whom access to the

applicant would continue. This letter explained that the detailed

plan for the child to be adopted with access from the applicant and A

could only be put into action and be discussed with the applicant

after the Authority had reached its decision based on the

recommendations made by the Adoption and Fostering Panel.

The applicant and A were fully involved in the adoption

procedure following the discharge of the wardship and reductions in

access made in January and February 1987 were fully discussed with

them.

2. Domestic law and practice

Code of Practice on Access to Children in Care

The Social Services Department of the London Borough of Merton

instituted a procedure for dealing with complaints in 1978. This

procedure remained operative after the Code of Practice on Access to

Children in Care came into force. It complies with paragraph 28 of

the Code. The procedure provides for the referral of unresolved

complaints to the Director of Social Services. The applicant was

offered the opportunity to follow that route for the resolution of his

complaint by the letter of 22 January 1986 from the Chief Executive's

Department. He did not, in the event, take up the opportunity. The

earlier letter of 5 December 1985 informed the applicant that he had

no right of "appeal" over access decisions. The author of the letter

was plainly in error in failing to address himself to the complaints

procedure at that stage. This is a matter of regret for which the

Government apologise. By good fortune however the applicant, being

advised by the Family Rights Group and being acquainted himself with

the Code of Practice, does not appear to have been misled by the

error.

Furthermore, the complaints procedure makes provision for the

elected members of the local authority to consider cases in which the

Director of Social Services has been unable to satisfy the complaint.

It is submitted that this is proper compliance with paragraph 30 of

the Code of Practice.

It is reasonable to suppose that a local authority which

failed to set up a procedure enabling relatives to pursue complaints

concerning access and to have decisions reviewed in accordance with

the Code of Practice would itself be liable to judicial review in

order to remedy the omission. The same would apply to other breaches

of the Code of Practice. Considering, inter alia, Departmental

Circulars, de Smith in his "Judicial Review of Administrative Action"

(4th Ed) states (p. 76):

"... if departmental communications are issued in pursuance

of statutory powers which authorise the Minister to confer

rights, directly or indirectly, on members of the public

... as where a Minister ... imposes restrictions (on a

local authority) in a circular letter or other document,

the relevant provisions will be recognised and enforced

by the Courts, and to that extent these informal

instruments may be characterised as having legislative

effects."

If that correctly states the law in the case of Departmental

Circulars, then it applies a fortiori in the case of the Code of

Practice on Access to Children in Care, given that the local authority

have, as stated, a statutory obligation to act under the general

guidance of the Secretary of State (see Section 7 of the Local

Authority Social Services Act 1970).

Sections 12A to 12G of the 1980 Act, which were added by

amendment in 1983, provide a statutory procedure under which a local

authority may not refuse to make arrangements for access by a parent,

guardian or custodian of a child subject to a compulsory care order or

to a parental rights resolution, without giving notice of their

intention. The procedure also prevents a local authority from

terminating access arrangements in such cases without giving notice.

The parent, guardian or custodian then has a right to apply to a

Juvenile Court for an access order, and, if an order is made,

subsequently for a variation of that order. An appeal against the

Juvenile Court's decision lies to the Crown Court, and, on a point of

law, to the High Court.

The Section 12A-G procedure does not apply to cases in which a

child has been taken into voluntary care. It is not envisaged that

disputes justifying the use of such a procedure will arise in

voluntary care cases. Nor is the procedure at present directly

available to grandparents or other relatives unless they are guardians

or custodians of the child. In practice however the Juvenile Court

could exercise its inherent jurisdiction in an appropriate case

to allow relatives such as grandparents to participate in the

proceedings. This could include allowing persons who were not parties

to cross-examine local authority witnesses (R v. Gravesham Juvenile

Court, ex parte B <1983> 4 FLR 312; R v. Milton Keynes Justices, ex

parte R <1979> 1 WLR 1062). In addition such persons could be called

as witnesses by parties to the hearing. Moreover there has recently

been passed the Children and Young Persons (Amendment) Act 1986, one

effect of which is that any grandparent of a child in respect of whom

care proceedings are sought may make an application to the court and

the court may, in such circumstances as may be specified in rules of

court, give leave for the grandparent to be made a party. These

provisions of the Act have not yet been brought into operation. The

Act does not change the orders available to the court in care

proceedings where the grandparent is a party. Thus the court will not

be able to make an access order in favour of a grandparent.

A White Paper setting out the Government's proposals for

changes to the Law on Child Care and Family Services was presented to

Parliament in January 1987, and it is likely that the availability of

the procedure of challenge will be extended. The reason why it does

not, and probably will not, apply to cases of voluntary care lies in

the fact that voluntary care depends upon the agreement of the parents

if they are available to give it. This is emphasised by the White

Paper in these terms:

"An essential characteristic of this service (Service

Voluntary Care) should be its voluntary character, that is

it should be based clearly on continuing parental agreement

and operate as far as possible on a basis of partnership

and cooperation between the local authority and parents."

3. Admissibility and merits

a) Article 26 (Art. 26): non exhaustion

The Government submit that the applicant has failed to exhaust

his domestic remedies in respect of the restriction imposed by the

local authority upon his access to the child.

By the local authority's letter of 22 January 1986 the

applicant was offered an opportunity for investigation of any

grievance he might have concerning access. Such an investigation

might have led to the applicant being satisfied that his desire for an

increase in access was ill-founded, or to an acceptance that the

interests of the child were best served by not increasing his

access. It might have led to a decision to increase access or to

retain the status quo. The applicant did not however avail himself of

the opportunity and the Commission ought not therefore to deal with

his complaint.

b) Article 8 (Art. 8)

The Government do not dispute that the applicant in the

present case has a family which includes his relationship with his

grandchild. It is submitted however that the existence or lack of a

family life cannot be judged merely by reference to the status of a

person as, for example, uncle or grandparent but is determined

principally by the part which he or she has played or intends to play

within the family. The Government accept however on the facts of the

present case that the applicant was entitled to have his relationship

with his grandchild respected as an element of his family life.

The Government submit that the decisions resulting from the

procedures at issue in the present case were almost entirely taken

with the agreement or acquiescence of the applicant. He agreed to the

child going into care and it appears that in July 1985 he accepted,

albeit reluctantly, that access be reduced. It also appears that he

accepted adoption was the best course for the child. The Government

question whether any of these decisions can therefore amount to an

interference and would submit that they do not necessarily constitute

an interference with the right to have family life respected.

The Government accepts that the applicant was dissatisfied

with the refusal of an increase in access at the conference held on

1 October 1985 but deny that this amounts in itself to a breach of his

right to have family life respected.

The Government accept that the general principles set out by

the Crown in the child care cases (H, D, R and W against the United

Kingdom) are applicable to cases involving grandparents but observe

that in cases in which a grandparent's right to respect for family

life has been interfered with there will be a larger number of other

people whose rights and freedoms both to respect for their family life

and to respect for their private lives will also be entitled to

protection. In the present case those concerned are (at least) the

child, the mother, the aunt, the prospective adoptive parents and

their immediate family, the previous foster parents. It is submitted

that an "interference" will in practice be much more likely to be

justifiable under Article 8 para. 2 (Art. 8-2) when it is seen against a

backcloth of competing interests in family life than when it falls for

consideration purely as between a child and its parents and foster or

adoptive parents.

The Government note that it has not been suggested that the

decisions taken by the local authority were not in accordance with

law. It is also submitted that the laws relating to child care in

general and voluntary care in particular have the legitimate aim of

the protection of health or of the rights and freedoms of others,

namely the welfare of children and the immediate members of their

families, and that it is not suggested that no legitimate aim was

pursued in the present case.

As regards whether the decisions taken were necessary in a

democratic society, the initial reception of the child into care

corresponded to a need which the applicant himself seems to have

acknowledged to be pressing.

Care was exercised at all stages to ensure that the extent of

access afforded by the applicant to the child was appropriate having

regard to what was, at the time, expected to be her future. Thus,

when in the early stages the hope and intention was the return of the

child to the applicant's home, no formal limit on the amount of access

he could have was sought by the local authority. When, later, it

became clearer that her long-term future would be likely to lie

outside her immediate family the limitations on access which were

sought were only those consistent with the need for the child to be in

a position to adopt a firm relationship with a new family. At no time

was the applicant wholly prevented from enjoying the company of his

granddaughter. At all times his wishes were consulted and taken into

account. In all the circumstances the restrictions, such as they

were, corresponded to a pressing social need, and were proportionate

to the legitimate aim pursued by the local authority on behalf of the

Government.

Moreover, the Government deny that any of the restrictions in

the present case were imposed arbitrarily. Frequent consideration of

the needs of the child by professionally qualified people at the case

conferences and reviews, much consultation by the social workers with

the applicant himself, and consideration of the views expressed on his

behalf by representatives of the Family Rights Group all testify to

the care with which the overall welfare of the child, her requirements

for access and the applicant's wishes and the wishes of others were

carefully weighed and balanced before any decision affecting him was

taken.

The Government in particular observe that:

- At no time when the applicant sought a meeting with the

officers of the local authority was he refused it;

- The officers of the local authority took the initiative in

seeking the views of the applicant both as to access and as to the

broader aspects of the welfare of the child;

- The applicant was invited to attend and did attend case

conferences and reviews of the child's progress. These included

consideration of questions of his access to her;

- The records of the case conferences and other evidence

demonstrate that his views were taken into account and were

influential in forming and sometimes altering the intentions of the

decision-makers;

- It was not possible to involve him in every aspect of the

process by which decisions were taken concerning the child - which

themselves might affect his access to the child - in particular

because of the unfortunate differences which marred his relationship

with his own daughter, A. A herself enjoyed a right to respect for

her private and family life and that fully justifies any lack of

involvement;

- It is true that the applicant was told that he had no right

to "appeal" the refusal of an increase in access (see the local

authority's letter of 5 December 1985), he was subsequently told that

he could pursue his grievance further by writing to and having an

investigation by the Director of Social Services, though he did not

choose to pursue this channel of complaint. The delay in notifying

the applicant of this possibility of having the decision not to

increase access further investigated is regretted but it is submitted

that there is no evidence that this delay prejudiced the applicant.

The Government submit that the decisions in the present case

evolved from a "continuous process of monitoring" and from case

conferences and reviews. The procedures demonstrate the emphasis

placed on decisions concerning children in voluntary care being

reached consensually by all concerned with their welfare, which itself

indicates a respect for family life on the part of the local

authority. The Government further observe that the court has

recognised the existence of a margin of appreciation and a "measure of

discretion" in the procedure followed by a local authority invoking

child care decisions. To the extent that it may be necessary to do

so, the Government rely on these factors in the present case.

c) Article 6 (Art. 6)

The applicant does not specify the civil right to which he

lays claim. If he claims as a civil right the "right to apply for

access to the grandchild" the Government submit there was a

determination of that right by the High Court in the wardship

proceedings. However, if, as appears most likely, the applicant in

reality claims a right of access to his grandchild or a right to have

his claim for access determined on its merits, the Government submit

that the civil rights of the applicant were not sufficiently involved

in the restrictions on his access for him to invoke Article 8 (Art. 8).

The Government do not challenge the reasoning of the court in

the child care cases insofar as it establishes the civil right of a

parent in regard to access after the making of a care order but do not

accept this reasoning can be logically extended to disclose a civil

right or an arguable claim of a civil right of access by a

grandparent. There are good reasons why it is inappropriate to treat

persons other than parents as having civil rights in respect of

children.

The Government accept that the concept of "civil right" cannot

be interpreted solely by reference to the law of a respondent State.

They rely however on the Commission's statement in Kaplan v. the

United Kingdom (Application No. 7598/76, Report of 17.7.80, D.R. 15

p. 120) concerning the relevance of the substantive content and

effects of the right claimed under domestic law to the classification

of a right as "civil". The Government submit that in determining

whether a "right" exists or not, account should be taken of the

"substantive content and effects", the object and purpose of the

Convention and the national legal system of other contracting states.

In this regard the Government observe:

(1) Section 2 of the 1980 Act concerns voluntary care. There

is no care order as such involved. The court relied in the child care

cases on the fact that a parent had a right under Part 1A of the 1980

Act (which was added by amendment) to apply for access during the

currency of a care order or a parental rights resolution. No such

right is conferred by Part 1A of the 1980 Act or by any other

provision to cases of voluntary care under Section 2 of the Act;

(2) Neither Part 1A of the 1980 Act nor any other provision

of domestic law provides a grandparent as such with a right to a

determination on the merits of any issue which may arise concerning

access to a child in care whether under Section 2 of the 1980 Act or

under any other provision. This does not mean that a grandparent is

without rights within this field; only that the right advanced on the

applicant's behalf is not one which is recognised by domestic law;

(3) Article 6 (Art. 6) does not guarantee any particular contents for

civil rights in the substantive law of Contracting States (see for example the

case of Lithgow and others v. the United Kingdom). To argue to the contrary is

tantamount to insisting upon incorporation of the Convention into the law of a

State, which no State is obliged to do;

(4) In any case the right conferred by Article 8 (Art. 8), which is

the only relevant one in the present context, is a right to respect

for family life, not a right to family life as such, and it is not an

absolute right;

(5) It is generally the case in Western Europe that the

fundamental elements of the family are the parents and their

children. The role of the grandparents is generally recognised as

being subsidiary to, and subject to the control of, the parents. This

is not to deny the influence of grandparents within a family. That

influence is however exercised subject to the ultimate right of the

parents to control their own children. It is not exercised as of

right. This is as true when the ordinary pattern of family life is

disturbed by separation or otherwise, as it is when family life is

proceeding smoothly;

(6) When a grandparent assumes the role of prime carer of a

grandchild (not the present case) she or he may acquire rights of

custodianship;

(7) Insofar as he can demonstrate a right to be involved, the

rights enjoyed by the applicant in the present case included a right

to ensure that the local authority did not exceed its powers, a right

to be provided with an internal channel of complaint in accordance

with the Code of Practice, a right to have any decision of the local

authority judicially reviewed if it was "unreasonable" in the sense

that that word is understood in the domestic law, and a right to have

any complaint of maladministration investigated and reported on by the

local Government Ombudsman (none of which rights are involved in the

restrictions on access in the present case).

If contrary to the Government's contention, the applicant does

have a right to a decision on the merits by a court in this matter,

the Government accept that he does not have access to a court for this

purpose. The other civil rights of the applicant identified in

paragraph 7 above however are all protected by the right to apply for

judicial review.

d) Article 13 (Art. 13)

If the Commission finds Article 6 (Art. 6) applicable the Government

submit no separate issue arises under Article 13 (Art. 13). If not and it is

necessary to consider the applicability of Article 13 (Art. 13), the Government

submit that the applicant has not established an arguable claim of being a

victim of a breach of a substantive Article of the Convention. The Government

consider that the Commission in Rice and Boyle v. the United Kingdom

(Application Nos. 9659/82 and 9658/82, Comm. Rep. 7.5.86) equated the concept

of "manifestly ill-founded" with absence of a prima facie issue. In the

present case, the applicant's claim under Article 8 (Art. 8) is manifestly

ill-founded and therefore no arguable claim arises under Article 13 (Art. 13).

Alternatively the applicant had an effective remedy which

could be achieved through the operation of one or more of the

following procedures:

(1) The consultative process of the local authority;

(2) The complaints procedure of the local authority;

(3) Judicial review of any decision taken by the local

authority in excess of its powers or unreasonably;

(4) Judicial review to compel the local authority to comply

with the Code of Practice on Access to Children in Care;

(5) Wardship proceedings;

(6) Investigation by the Commissioner for local

administration in England (the local Government Ombudsman).

To the extent that any one of these remedies might not itself

satisfy the requirements of Article 13 (Art. 13) the Government rely on the

operation of that remedy in combination with the others listed above.

B. The applicant

1. The facts

The applicant refutes the suggestion of the respondent

Government that he did not really complain about the reduction on

access. The correspondence shows that the applicant sought in every

way he could to challenge the local authority's decisions. The

applicant submits that the local authority persistently delayed in

responding to letters or did not answer them at all. While he was

present at various meetings, he submits that such meetings were not

genuine, but were occasions when the local authority would say what

they had decided and avoid giving answers or explanations when

challenged by the applicant.

The applicant states that it was clearly the intention of the

local authority to stop any access for the applicant to his

granddaughter once she was placed for adoption though this view was

changed after the institution of the wardship proceedings. The

applicant submits that without active intervention on his part the

local authority would not have attempted to ensure a placement with a

family favourable to access by the child's natural family.

The applicant does not deny that there were difficulties and

differences between himself and A but denies that there was a closer

relationship between A and the child which in some way meant that it

was more relevant for the child to maintain contact with A rather than

with the applicant.

The applicant submits that the local authority found his

request for reasons for decisions too challenging and did not want the

problem of justifying their decisions.

The applicant believes and understands that the prospective

adopters are agreeable to access and that some form of agreement

concerning access can be incorporated within the order to secure the

child's continuing contact with A and the applicant.

2. Domestic law and practice

Role of local authorities

Local authorities are charged with various responsibilities

relating to the care of children. The applicant submits however that

a local authority has the dual role of its general supervisory role

which applies to all children within its area and the parental role in

respect of children in its care. The applicant contends that it is

inappropriate for these two potentially conflicting obligations to be

carried out by a single authority. The local authority is obliged to

supervise and assess its own decisions, and acts as both judge and

plaintiff in any dispute with the family of a child in care.

Voluntary care

The child in voluntary care is to some extent in an ambivalent

situation between the parents exercising responsibility for the child

and the local authority also exercising responsibility. Subject to

certain conditions, a parent can require the return of their child

from voluntary care. However, where a parent is of unsound mind or

absent there is no-one who is able to make that request. As regards

access, the provisions for the termination of access and application

to the juvenile court do not apply where a child is in voluntary

care.

3. Admissibility and merits

a) Article 8 (Art. 8)

The applicant submits that the Government appear to accept

that there has been a prima facie interference with the applicant's

right.

In dealing with this question the Government claim that the

applicant has agreed or acquiesced with the decisions; this is not the

case. However the applicant has had to operate within the constraints

of the system which gives effectively total control of decisions about

the minor to the local authority. In the absence of any outside

review body on the actions of the local authority this situation

continues in connection with all children in care.

While the applicant has not suggested that the decisions and

the way in which they were reached were contrary to United Kingdom law

as it stands, it is submitted that the law itself is fundamentally

flawed and in breach of the Convention. There needs to be a legal

code for the protection of children and this will involve interference

with the right guaranteed by Article 8 para. 1 (Art. 8-1). However the process

currently operating is not an appropriate system for deciding on such

interference. A major problem is caused by the different procedures and

different legislative frameworks which are available.

b) Article 6 (Art. 6)

The wardship proceedings instituted by the applicant were

dismissed on a jurisdictional point and the applicant had no right of

invoking the wardship proceedings to review the decision. The

applicant submits that his civil rights were involved in the

restriction on his access to his grandchild and notes that the

Government accepts that if there is a civil right, the applicant has

no redress before the courts.

c) Article 13 (Art. 13)

The applicant submits that he has no remedy for his complaints

and contends that the alternative remedies put forward by the

Government are unrealistic and inappropriate. The applicant rejects

for the same reasons the Government's allegation of non-exhaustion.

THE LAW

1. Article 26 (Art. 26) of the Convention

The Commission recalls that the respondent Government contends

that the applicant has failed to exhaust domestic remedies as required

by Article 26 (Art. 26) of the Convention since he failed to make use of the

internal appeal procedure by bringing his complaints before the

Director of the Social Services. The applicant submits that such

proposal is unrealistic and inappropriate.

The Commission recalls that in the letter of 22 January 1986

in which the applicant received information concerning this

possibility, he was informed that there was no formal procedure of

appealing although one had been prepared and was awaiting final

approval. The letter also stated that the current situation in regard

to complaints was that the aggrieved person could write to the

Director of Social Services setting out the basis of his complaint.

The case-law of the Commission and Court establish that the burden of

proving the existence of the available and sufficient domestic

remedies lies upon the State invoking the rule (cf. Eur. Court H.R.,

Deweer judgment of 27 February 1980, Series A No. 35, p. 15 para. 26,

Application No. 9013/80, Dec. 11.12.82, D.R. 30, pp. 96, 102). The

Commission is not satisfied on the facts as established in this case

that the informal complaints procedure of which the applicant was

informed would have constituted an effective or sufficient remedy for

the applicant's complaints and therefore finds that the application

cannot be declared inadmissible for non-exhaustion of domestic

remedies.

2. Article 8 (Art. 8) of the Convention

The applicant complains of a violation of his right to respect

for his family life guaranteed 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."

The applicant's complaints under this provision arise from

events following the reception of his grandchild into voluntary care

under Section 2 of the Child Care Act 1980. He appears to complain of

the decision making process followed by the local authority and of

there being insufficient safeguards to protect his rights under the

relevant legal framework governing children in care. Insofar as the

applicant complains in general of the legislative situation, the

Commission recalls that it must confine itself to an examination of

the concrete case before it and may not review the aforesaid law in

abstracto. The Commission therefore may only examine the applicant's

complaints insofar as the system of which he complains has been

applied against him (see e.g. Eur. Court H.R., Olsson judgment of

24 March 1988, Series A no. 130, para. 54). It follows that the

Commission can only examine the decisions taken and the procedures

implemented in the present case.

The Commission must first consider whether Article 8 (Art. 8) is

applicable to the present case. The Court in the Marckx case (Eur.

Court H.R., Marckx judgment of 13 June 1979, Series A No. 31, p. 21

para. 45) stated that "family life" within the meaning of Article 8

(Art. 8) includes at least the ties between near relatives, and mentioned by

way of example the relationship between grandparents and

grandchildren, since such relatives may play a considerable part in

family life. The Commission also recalls that the existence or not of

family ties falling within the scope of Article 8 (Art. 8) will depend on a

number of factors, of which cohabitation is only one and on the

circumstances of each particular case (see e.g. No. 12402/86, Dec.

9.3.88). The Commission notes in this case that the applicant's

grandchild lived in the applicant's home following her birth on 29

October 1981 until after the death of the applicant's wife on 3 April

1985. As a result of the incapacity of her mother, the child remained

in the care of the applicant and his family during this period.

Following her reception into care on 12 April 1985, the applicant

continued to maintain regular contact with his grandchild and to show

concern in matters pertaining to her welfare and future. The

Commission accordingly finds, and the respondent Government do not

contest, that close family ties existed between the applicant and the

child which fall within the scope of the concept of "family life" as

guaranteed by Article 8 (Art. 8) of the Convention.

The Commission must therefore consider whether there has been

any interference with the applicant's right to respect for his family

life as regards his relationship with his grandchild.

The Commission notes first that in normal circumstances the

relationship between grandparents and grandchildren is different in

nature and degree from the relationship between parent and child. This

difference has been recognised by both the Commission and the Court as

being of fundamental importance (e.g. Eur. Court H.R., W v. the United

Kingdom judgment of 8 July 1987, Series A No. 121, p. 27 para. 59).

When a parent is denied access to a child taken into public care this

would constitute an interference with the parent's right to respect

for family life as protected by Article 8 para. 1 (Art. 8-1) of the Convention.

However, this would not necessarily be the case where grandparents are

concerned. Access of a grandparent to grandchildren is normally at

the discretion of the child's parents and, where a care order has been

made in respect of the child, this control of access passes under the

national law to the local authority. In the latter situation, there

may be an interference by the local authority under Article 8 (Art. 8) of the

Convention if it diminishes contacts by refusing to grandparents what

is, in all the circumstances, the reasonable access necessary to

preserve a normal grandparent-grandchild relationship. Regulation of

access which did not go to that length would not of itself show a lack

of respect for family life.

An interference with the right to respect for family life

entails a violation of Article 8 (Art. 8) unless it is "in accordance with

law", has an aim that is legitimate under Article 8 para. 2 (Art. 8-2) and is

"necessary in a democratic society" for the aforesaid aim. The

case-law of the Commission and the Court establishes that the notion

of necessity implies that the interference corresponds to a pressing

social need and that it is proportionate to the legitimate aim

pursued. In determining whether an interference is "necessary", the

Commission and the Court take into account that a margin of

appreciation is left to the Contracting States (see e.g. Eur. Court

H.R., Handyside judgment of 7 December 1976, Series A No. 24; Eur.

Court H.R., Johnston and Others judgment of 18 December 1986, Series

A No. 112).

In the present case, it is not disputed that the child was

received into voluntary care on 12 April 1985 by the local authority

with the consent of the applicant, circumstances following the death

of his wife necessitating that provision be made for the child's

welfare. The Commission recalls that the applicant, as well as the

child's aunt A enjoyed frequent and unlimited access following her

reception into care. On 10 July 1985, the applicant attended a

meeting with the local authority where the proposal was put forward

that following the transfer of the child to an intermediate foster

home access for the applicant should be reduced to once per week and

for A to twice per week. The applicant disagreed with this decision

and following an exchange of correspondence met with the local

authority on 23 August 1985 to express his views on access. From the

observations of the respondent Government, it appears that at this

stage it became clear that the child's aunt A was unable to offer a

permanent home to the child and that the local authority decided that

it was necessary to make plans for the child's long-term future.

On 1 October 1985, the applicant and A were invited to another

case conference at which the possibility of adoption was discussed.

The applicant expressed continued concern over the access position and

enquired about an appeal procedure, though no further decision

concerning access was taken. Another case conference was held on 20

February 1986 to review the position and though the applicant was not

present, a representative of the Family Rights Group attended on both

his behalf and A's. At a meeting on 18 April 1986, the applicant

again attended a conference, with the representative of the Family

Rights Group, when the proposed adoption was again discussed. It was

at this meeting that the applicant became aware of the local

authority's intention to pursue adoption, with access for A only. The

applicant reacted by instituting wardship proceedings in an attempt to

safeguard his future contacts with his grandchild.

The Commission notes, however, that by the date of the hearing

of the applicant's application on 14 August 1986, the local authority

had apparently changed its intention and had decided to seek adopters

favourable to access from both the applicant and A. Since then, the

Commission recalls that both A and the applicant were kept informed by

the local authority of the adoption procedure and that prospective

adopters were found who were favourable to continued access. Though

access was reduced again to once per fortnight by the local authority

on 19 January 1987 and to once every two months by the Adoption Panel

on 26 February 1987, it appears that access for the applicant has

continued. The child has now been freed for adoption and the

applicant, a party to the proceedings, has consented to the adoption.

In light of the above, the Commission will consider in turn

the applicant's complaints which appear to concern two main issues,

firstly, the reduction of access and secondly, the decision-making

procedure implemented by the local authority.

As regards the first aspect, the Commission notes that the

applicant disagreed with several of the local authority's decisions

concerning access which has been reduced on several occasions. The

Commission recalls that access was reduced to once a week following

the child's placement with bridging foster parents on 19 July 1985.

Following the decision to find adoptive parents for the child, access

was again reduced to once per fortnight from 19 January 1987 and

subsequently to once every two months. Since the child had initially

lived in the applicant's home and the applicant had at first enjoyed

unlimited access to the child on her placement in care, the Commission

finds that in the circumstances of this case the progressive and

significant reduction in access constituted an interference with the

applicant's rights under Article 8 (Art. 8) of the Convention.

As regards the question whether the interference complied with

the requirements of Article 8 para. 2 (Art. 8-2) of the Convention, the

Commission notes that the local authority first reduced access at a

time when the child had been placed with temporary foster parents in

order to prevent confusion for the child and to allow her future to be

concentrated upon. They reduced access further during the adoption

procedure in order to facilitate the transfer from the foster parents

to the prospective adoptive parents. The Commission is satisfied in

these circumstances that any interference with the applicant's right

to respect for his family life caused by the restrictions in access

was in accordance with law and was designed to achieve a legitimate

purpose namely the protection of the child's welfare and consequently

was imposed for the protection of health and of the rights and

freedoms of others, namely the child.

As regards the question whether such interference was

necessary in a democratic society, the Commission recalls that since

neither the applicant nor A were able to offer the child a home it was

necessary to plan for her long-term future and to concentrate upon

establishing her relationship with alternative carers. The Commission

notes that the applicant was able to make representations concerning

access on several occasions and that access was continued throughout,

albeit with progressive reductions. In these circumstances, the

Commission finds that the decisions of the local authority concerning

access corresponded to a pressing social need and were not

disproportionate.

The Commission has next considered whether the applicant's

complaints concerning the decision-making process disclose in

themselves a failure to respect his family life. An analogous issue

was considered before the Court in W v. the United Kingdom (Eur.

Court H.R., judgment of 8 July 1987, Series A No. 121) in respect

of parents, where it was stated:

"In the Court's view, what therefore has to be determined

is whether, having regard to the particular circumstances

of the case and notably the serious nature of the decisions

to be taken, the parents have been involved in the

decision-making process, seen as a whole, to a degree

sufficient to provide them with the requisite protection

of their interests. If they have not, there will have

been a failure to respect their family life and the

interference resulting from the decision will not be

capable of being regarded as 'necessary' within the

meaning of Article 8 (Art. 8)."

In the present case the Commission recalls that the applicant

is the grandparent, and not a parent of the child in care, and the

Commission finds that the difference in nature of this relationship

will normally not require a local authority to consult or involve them

in the decision-making process to the same degree as in the case of

natural parents.

Nevertheless it appears that the applicant was able to attend

case conferences and meetings where his grandchild's future was

discussed (10.7.85, 23.8.85, 1.10.85, 18.4.86) and where he was able

to put forward his own views. He was also able to attend such

meetings, with a representative of the Family Rights Group. The

Commission also notes that despite an initial indication to the

contrary, the local authority looked for and found prospective

adopters favourable to the applicant's continued access and that,

though access has been reduced, it has continued throughout on a

regular basis. The Commission further recalls that the applicant was

not the only member of the child's family, whose interests were

involved, the local authority at the same time being in frequent

communication with A, whose relationship with the child they

recognised as being of particular importance. The Commission

therefore finds that the decision-making process implemented by the

local authority discloses no interference with the right to respect

for the applicant's family life contrary to Article 8 para. 1 (Art. 8-1) of the

Convention.

It follows that the applicant's complaints under the provision

are manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. Article 6 (Art. 6) of the Convention

The applicant complains that he is unable to apply to a court

for access to his grandchild and that he is accordingly denied access

to court in the determination of his civil rights. He invokes 6 para. 1

(Art. 6-1) of the Convention, which provides inter alia:

"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..."

The Commission recalls first of all that the case-law of the

Commission and the Court has established that Article 6 para. 1 (Art. 6-1) of

the Convention guarantees to everyone an effective right of access to the

courts for the determination of their civil rights and obligations. The

Commission must therefore consider whether a right was at all involved in the

present case and, if so, whether that right was a civil right within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission notes that Article 6 para. 1 (Art. 6-1) of the

Convention is not aimed at creating new substantive rights which have no legal

basis in the State concerned but at providing procedural protection to rights

which are recognised in domestic law. It is not however decisive whether a

particular benefit or expectation is characterised under the domestic legal

system as a right since the term right must be given an autonomous

interpretation under Article 6 para. 1 (Art. 6-1) of the Convention (e.g. Eur.

Court H.R., König judgment of 28 June 1986, Series A No. 27, p. para. 87).

In W v. the United Kingdom (Eur. Court H.R., judgment of 8 July 1987, Series A

No. 121, p. 32 para. 73) the Court stated:

"It is true that Article 6 para. 1 (Art. 6-1) extends only to

'contestations' (disputes) over (civil) 'rights and

obligations' which can be said, at least on arguable

grounds, to be recognised under domestic law; it does

not in itself guarantee any particular content for

(civil) 'rights and obligations' in the substantive law

of the Contracting States (see, amongst other authorities,

the Lithgow and Others judgment of 8 July 1986, Series A

No. 102, p. 70 para. 192)."

The applicant in the present case claims that his right to

access and/or custody is a civil right. The Government however submit

that under English law grandparents do not have any legal rights over

their grandchildren and that such rights which can be said to exist

in relation to children are normally vested jointly in the children's

parents.

An examination of English law discloses that in certain

circumstances grandparents may be able to introduce legal proceedings

dealing with the welfare of their grandchildren or to apply for

custody of and access to their grandchildren (see Relevant domestic

law and practice). However, while such possibilities do exist under

the Children Act 1975, adoption legislation and the wardship

procedure, the Commission notes that these provisions apply generally

to any persons who fulfil the relevant criteria and are not rights

which accrue to applicants as a consequence of their status as

grandparents.

Section 14A of the Guardianship of Minors Act 1971 makes

specific provision for grandparents but this only gives a grandparent

the right to apply to a court for access where an order in relation to

access or custody has already been made by the court in respect of the

father or mother of the child in question and, in such circumstances,

the court may in its discretion award access to a grandparent. This

provision allowing grandparents to apply to the court however does not

apply in respect of a child in care. Accordingly, this provision

which appears to have been designed to deal with the consequences of

the breakdown of marriage confers no substantive right of access by

grandparents to a child in care. The Commission therefore finds that

this limited procedural provision confers no substantive rights of

access capable of falling within the scope of the concept of civil

rights.

The Commission also recalls the Statutory Code of Practice on

Access, issued pursuant to Section 12G of the Child Care Act 1980,

which states that consideration of access should take into account

the wider family, specific reference being made in this context to

grandparents. However it appears that the Code is intended as

providing guidelines to local authorities and others concerned in

child care and does not lay down any binding requirements or

obligations in this respect nor confer any rights of access or

custody. At most, this would appear to give relatives, including

grandparents, an expectation that they should be considered in the

course of reaching decisions concerning access to a child in care.

In these circumstances, the Commission concludes that the

domestic law of England does not afford to grandparents any right to

access to or to custody of their grandchildren in care.

The Commission accordingly finds that the applicant's

complaints do not involve a civil right or obligation within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention. It follows that

this part of the application must be dismissed as incompatible ratione materiae

with the provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. Article 13 (Art. 13) of the Convention

The applicant also complains that he has no remedy in respect

of his complaints, since wardship proceedings were ineffective.

Article 13 (Art. 13) of the Convention provides:

"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."

The case-law of the Court and the Commission establishes

however, that for Article 13 (Art. 13) to apply, an applicant's claim that a

provision of the Convention has been violated must be arguable (see

e.g. Eur. Court H.R., Leander judgment of 26 March 1987, Series A

no. 116, p. 29 para. 77 and Eur. Court H.R., Boyle and Rice judgment

of 27 April 1988, para. 52).

The Commission notes that the applicant's grandchild was taken

into care with his consent, and that thereafter the applicant was

enabled to make representations about his access to the child, and to

attend meetings at which the child's future was discussed. The local

authority sought and obtained prospective adopters whose attitude to

his continued access was favourable. Furthermore insofar as there was

any interference with the applicant's family life that interference

was fully justified under Article 8 para. 2 (Art. 8-2) as being necessary in a

democratic society for the legitimate purpose of the protection of

health and the protection of the rights and freedoms of others,

namely, the child. The Commission also found that the decision-making

process concerning the future of the child did not disclose any lack

of respect for the applicant's rights under Article 8 (Art. 8) of the

Convention.

In these circumstances, the Commission finds that the facts of

the case fail to disclose that the applicant has an arguable claim

that Article 8 (Art. 8) of the Convention has been breached. The Commission

accordingly finds no appearance of a breach of Article 13 (Art. 13) of the

Convention. It follows that this complaint is manifestly ill-founded

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

Insofar as the applicant invokes Article 13 (Art. 13) in relation to

his complaints of lack of access to court under Article 6 (Art. 6) , the

Commission recalls that it has found the applicant's complaints under Article 6

(Art. 6) incompatible ratione materiae with the provisions of the Convention.

Since Article 13 (Art. 13) can only be invoked in connection with a right

guaranteed by the Convention, it follows that his complaint under Article 13

(Art. 13) in this regard must also be dismissed as incompatible ratione

materiae with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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LAWLOR v. THE UNITED KINGDOM

LAWLOR v. THE UNITED KINGDOM

LEXI