DISSENTING OPINION OF MR E.A. ALKEMA

I share Sir Nicolas’ partly dissenting opinion where he based his finding that Article 6 had not been violated on a reasoning differing from the majority’s reasoning.

I also share Sir Nicolas’ opinion that Article 13 has been violated, but on different grounds.  Although the applicants’ rights under Article 8 in my opinion had not been violated, they did have an arguable claim.  However, for the reasons set out so ably in Sir Nicolas’ opinion the High Court cannot in the circumstances of the case be considered as an effective remedy.

(Or. English)

DISSENTING OPINION OF MR E.A. ALKEMA

JOINED BY MR M.P. PELLONPÄÄ

I have voted against finding a violation of Article 8 for the following reasons.

On 13 November 1987 at the application of the local authority the magistrates court granted a place of safety order with respect to the second applicant for 28 days.  Within that period the first applicant applied for the second applicant to be made a ward of court.

Of course there are differences in the position of a child being in a place of safety or being a ward of court.  Yet, it is clear that all involved were convinced that the second applicant had been a victim of sexual abuse and was in need of protection, which her mother could not afford.  In this respect there was no dispute either in the material sense or in the formal sense (as it is used for instance as requisite for applying Article 6).

There was no dispute either with regard to the duration (28 days) of the order granted at 13 November 1987.  In applying only to the High Court in the autumn of 1988 the first applicant implicitly did not challenge that order.

It was also late in 1988 that the authorities became aware of the mistaken identity of the person who had abused the second applicant.  The subsequent steps taken were speedy, adequate and again not disputed, not even by the first applicant.  The court ordered by consent that the second applicant remain a ward of court for a trial period after the local authority recommended rehabilitation for a trial period.  In deciding so the court sought to redress the apparent but not intentional omission of not showing the video of the interview to the first applicant.  In this context it must be noted that there is no indication that the first applicant ever formally requested to see the video recordings.

No doubt, the period between November 1987 and November 1988 must have been an agonizing and very emotional experience to both applicants.  Besides, the first applicant was pregnant and gave birth to a second child that year.  Yet, it is hard to attribute that course of events principally and with hindsight to the fact that the video had not been made available, as the first applicant did when she issued proceedings in 1990.  It is highly speculative to assume that the correct information about the identity of the person who abused the second applicant would have changed the latter’s plight and would also have removed the necessity of making her ward of court.  This is demonstrated by the fact that the High Court, even when it became aware of the mistaken identity of the person who had abused the second applicant, still found it necessary to apply a measure for the child’s protection to which the first applicant agreed.  Therefore, in spite of any possible flaws in the original judicial assessment of the case, it seems not tenable to conclude that the final decision reached was not provided for by law nor proportionate as required by Article 8.

Further it should be noted that the present case differs substantially from the McMichael judgment referred to in para. 74 of the present report.  In the latter case there had been from the outset a serious dispute between the authorities and the applicants about recovering custody of and access to the child.  In the present case, on the other hand, there was during the proceedings before the magistrates and High Court agreement between the parent and the authorities as to the need of special child care measures.

Finally, the relevant English legislation at the time might have been anything but perfect and has – for good reasons – been partly replaced since by the Children Act 1989.  However, as there is no proof that this legislation materially and considerably affected the applicants, it would be improper for the Commission to examine that legislation in abstracto .

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.