RESOLUTION DH (97) 508

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 24 FEBRUARY 1995 IN THE CASE OF McMICHAEL AGAINST THE UNITED KINGDOM

(Adopted by the Committee of Ministers on 29 October 1997 at the 605th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the judgment of the European Court of Human Rights in the case of McMichael against the United Kingdom delivered on 24 February 1995 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 16424/90) against the United Kingdom, lodged with the European Commission of Human Rights on 11 October 1989 under Article 25 of the Convention by Mr Antony and Ms Margaret McMichael, two British nationals, and that the Commission declared admissible the complaints relating to the right to have a fair trial in compulsory care proceedings at the "children's hearings" and the Sheriff Court, and to the consequences of these proceedings on the right to family life;

Recalling that the case was brought before the Court by the Commission on 10 December 1993;

Whereas in its judgment of 24 February 1995 the Court held:

_ unanimously, that it had no jurisdiction to entertain the applicants' complaints directed against the taking of the child, A., into care, the termination of access to A. and the freeing of A. to adoption;

- unanimously, that it was not necessary to rule whether it had jurisdiction to entertain the applicants' complaint relating to the fairness of the adoption proceedings;

- - unanimously, that Article 6, paragraph 1, of the Convention had no application to the first applicant's complaint;

- - unanimously, that there had been a violation of Article 6, paragraph 1, of the Convention in respect of the second applicant;

- _ by six votes to three, that there had been a violation of Article 8 of the Convention in respect of the first applicant;

- _ unanimously, that there had been a violation of Article 8 of the Convention in respect of the second applicant;

- _ unanimously, that there had been no violation of Article 14 of the Convention, whether taken together with Article 6, paragraph 1, or Article 8 of the Convention in respect of the first applicant;

_ unanimously, that the Government of the United Kingdom was to pay the applicants jointly, within three months, 8 000 pounds sterling in respect of non-pecuniary damage and rejected the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention;

Having invited the Government of the United Kingdom to inform it of the measures which had been taken in consequence of the judgment of 24 February 1995, having regard to the United Kingdom's obligation under Article 53 of the Convention to abide by it;

Whereas, during the examination of the case by the Committee of Ministers, the Government of the United Kingdom gave the Committee information about the measures taken in consequence of the judgment, which information appears in the appendix to this resolution;

Having satisfied itself that on 13 April 1995, within the time-limit set, the Government of the United Kingdom paid the applicant the sum provided for in the judgment of 24 February 1995,

Declares, after having taken note of the information supplied by the Government of the United Kingdom, that it has exercised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (97) 508

Information provided by the Government of the United Kingdom

during the examination of the McMichael case

by the Committee of Ministers

On 1 April 1997, the Children's Hearings (Scotland) Rules 1996 came into force. Rule 5 (3) provides that "Where the principal Reporter gives a copy of any document to the chairman and members of the children's hearing under paragraph (1) or makes available to them information or any document or copy thereof under paragraph (2), he shall at the same time give a copy of the document or, as the case may be, make available the information or a copy of the document to:

(1) each relevant person in relation to the child, whose case is to be considered at the children's hearings; and

(2) (2) any father of the child whose case is to be considered at the children's hearing who is living with the mother of the child where both the father and the mother are parents of the child as defined in section 15 (1) of the Act".

(3) The Government of the United Kingdom is of the opinion that the measure adopted will prevent the repetition of the kind of violation found in this case and that, therefore, the United Kingdom has fulfilled its obligations under Article 53 of the Convention.