Churchill v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 12936/87

by Tracey Jane CHURCHILL

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

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 2 March 1987

by Tracey Jane CHURCHILL against the United Kingdom and registered

on 11 May 1987 under file No. 12936/87;

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 applicant is a British citizen born in 1966 and is

resident in Teignmouth, Devon. The facts as submitted by the

applicant may be summarised as follows.

The applicant gave birth to a son A. on 2 February 1985.

She was at that time living with a boyfriend in sub-standard and

inadequate accommodation. Shortly after A.'s birth, his name was

entered on the local authority's At Risk register as he was failing to

thrive. The applicant attributed the problems of that period to their

unsatisfactory accommodation. The applicant and A. were visited

regularly by a social worker, who from June 1985 was a Mr. P.

In July 1985, the applicant and her boyfriend moved to a better

guest house. During the move, A. was looked after by the applicant's

mother. On 28 July the applicant took A. to hospital, where it was

discovered that he had a fractured arm. On 29 July 1985 Mr. P.

informed the applicant that the local authority were applying for a

care order in respect of A. and the same day the local authority

obtained a Place of Safety Order. On release from the hospital on

13 August, A. was placed with temporary foster parents and the

applicant visited A. 2-3 times per week. On 18 September 1985, the

care proceedings in respect of A. were dismissed, as there was no

conclusive evidence that the injury had been deliberately caused or

even if it had, whether it had occurred at a time when A. had been

living with the applicant.

A. returned to the applicant's care following the hearing and

at the end of October 1985 they moved to live with the applicant's

mother. Since her mother's home was too small, the applicant was on

31 December 1985 placed in bed and breakfast accommodation, her

landlady being a foster mother with the social services. The purpose

of this placement was to help the applicant acquire better parenting

skills. The local authority also appointed a family aid to provide

the applicant with support.

In April 1986, the family aid noticed a mark on A.'s chest

(allegedly a cigarette burn) and reported this to the local authority,

which on 7 April 1986 obtained a Place of Safety Order in respect of

A. and placed A. with foster parents. The applicant had daily access

to A. On 23 May 1986 the applicant gave birth to her second child H.,

a daughter. While still in hospital, the applicant was visited by Mr.

P., the social worker dealing with A. and was persuaded to sign a form

in which she acknowledged her ultimate responsibility for any injury

to A. and agreed to go to live in a mother and baby home in Bristol.

On 30 May 1986, the applicant moved to the home in Bristol with H. On

4 June 1986, the local authority made A. a ward of court and A. was

sent to join the applicant on 12 June 1986.

After 2 1/2 months in the home, the applicant and her children

were placed in an independent flat within the home for her to develop

further her ability to cope for herself. However, in October 1986,

the local authority apparently became concerned about the applicant's

ability to cope with both children. Mr. P. advised the applicant to

place A. in foster care until H. was older. When the applicant

refused, the local authority decided to recommend to the Court that A.

be placed with long-term foster parents with a view to adoption. The

local authority also made H. a ward of court.

On 13-14 November 1986, the local authority's application

concerning A. came before the Court. The Court heard evidence from

the family aid, the social worker dealing with A., and the matron

of the mother and baby home on behalf of the local authority and an

independent social worker and a worker from A.'s nursery on behalf of

the applicant. The applicant was present and represented by solicitor

and counsel.

The Court gave its decision on 14 November 1986 and the

counsel's note of the judgment records the following reasoning:

"Mr. P. <the social worker> gave evidence pointing out the

fears of the local authority if both children were with the

mother. The family aid Mrs. W. also expressed anxiety. But

the greatest possible assistance given to me in this case

was from Mrs. C. <the matron> who gave a full report from

St Johns. Maybe not all that report is from her own

knowledge but she has extensive first hand knowledge during

the 5 to 6 months that the family have been at St Johns.

Mrs. C. is well disposed towards the mother but had to say

that there was a risk in allowing both children back with

the mother and that she thought this was unacceptable. She

recited matters giving her cause for concern, and when cross

examined, forceably but fairly, she remained quite adamant

that such a position was unacceptable. Mrs. C. was reluctant

to give this evidence as clearly the object of St Johns is

to fit mothers to succeed and she is saying in effect that

she and St Johns have failed in this case. No one wants to

acknowledge failure. She was a most impressive witness,

and without evidence to the contrary she has given advice

that I really must accept.

There were 2 witnesses called on behalf of the mother,

Mrs. B. from the nursery was one and even she had misgivings

of the mother. But even so her opinion cannot carry anything

like the weight of the evidence of Mrs. C. Mr. C. <the social

worker called on behalf of the applicant> acknowledged that

his contact and knowledge of the family was very limited. He

acknowledged that Mrs. C. knew more than he did. He thought

that if it was premature to return the children to the mother

immediately he would recommend a further term at St Johns;

but of course Mrs. C.'s opinion is that a further period,

whether it was 6 months or any other period, would not

improve this mother.

This mother can be a good mother but the trouble is, according

to Mrs. C. that looking after both children has been on many

occasions too much for her. A. is a demanding child and the

mother has acknowledged that she cannot cope with him from

time to time and she has had to give up at these times. This

was even in the cloister of St Johns, and I think that if she

was away and on her own it would not be possible to afford

such support as will be necessary to get her over her

difficulties. The mother says that she can cope with the

assistance of a family aid, but in my view this is totally

inadequate support, and even massive support would not be

enough in this case. Being a mother is a 24 hour a day job

and however much help from friends and relatives she receives

she will certainly be quite alone overnight. She can cope

with one child, and there will be less stress put upon her

if she only has H. She can certainly cope with H. and the

relationship with this child is different to the mother's

relationship with A. The bond with H. is natural and more

than one witness has said that the mother and A. bond is

not that commonly found between mother and child. Little

if any spontaneous cuddling takes place there is little eye

to eye contact, and the mutual smiles that are natural are

absent, and she cannot provide sufficient stimulation for

this boy. This situation obtained even when A. was H.'s age.

Mrs. C. says that there is an unacceptable risk if the

children are returned to the mother. I accept that advice.

It was argued forceably by Mr. P. <applicant's counsel> that

if I adopt the course that the Social Services asked me to

take A. will go to a temporary Foster Home for the short

term, and in the meanwhile long term foster parents will be

found with a view to adoption, which must result in a minimum

of 2 moves. He has also said that possible placements may

fail. I am urged by him not to take this risk. But the

alternative is for the children to go with the mother, and

in the light of the evidence of Mrs. C. that there is a very

real risk that the placement with the mother would break

down because she cannot cope which would mean that A. would

be removed at an age where it would be rather more traumatic.

I think that the local authority should start the process of

placement for adoption now and then the situation for A.

would be much less advantageous."

The Court therefore decided that A. was to be placed in the

care of the local authority, with leave to place him with long-term

foster parents with a view to adoption. The applicant was also

refused access, save for terminal access in which to say goodbye to A.

It was ordered that H. could continue to reside with the mother, with

a care order to the local authority.

The applicant's solicitors sought advice as to an appeal, but

were informed by counsel that in light of the House of Lords decision

of G v G (1985, WLR p. 647) such cases were practically unappealable.

The applicant was accordingly advised that an appeal would have no

prospect of success.

COMPLAINTS

The applicant complains of the decision of the Court to place

A. in the care of the local authority and to terminate access. She

also complains that the local authority gave misleading evidence at

the hearing of the Court on 13-14 November 1986. She complains of a

violation of her rights under Article 8 (Art. 8) of the Convention.

THE LAW

The applicant complains that she has been deprived of custody

of and access to her son A. She complains that the local authority

gave misleading evidence to the Court on 13-14 November 1986 and

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

Article 8 (Art. 8) of the Convention provides that:

"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 Commission finds that, in accordance with its established

case-law, the decision to take the applicant's son into care and

terminate access constituted an interference with the applicant's

right to respect for her family life protected by Article 8 para. 1 (Art. 8-1)

of the Convention (see e.g. Eur. Court H.R., W v. the United Kingdom judgment

of 8 July 1987, Series A no. 121, p. 27, para. 59). The Commission must

therefore examine whether this interference is justified under Article 8 para.

2 (Art. 8-2) of the Convention, namely whether it is "in accordance with the

law", pursues one or more of the legitimate aims enumerated in Article 8 para.

2 (Art. 8-2) and whether it is "necessary in a democratic society" for one or

more of those aims.

The Commission recalls that A. was placed in the care of the

local authority after the local authority had made A. a ward of court

and following a hearing in the High Court, where the judge found that

there was an unacceptable risk if A. remained with the applicant. The

Commission accordingly finds that the decision, made pursuant to the

court's common law wardship jurisdiction, was "in accordance with the

law" and was made for the aim of protecting A.'s health and

development.

The question remains whether the decision was "necessary"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. 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 aim pursued. Further,

in determining whether an interference is necessary the Commission and

the Court will take into account that a margin of appreciation is left

to the Contracting States, who are in principle in a better position

to make an initial assessment of the necessity of a given interference.

When determining whether or not the placing of A. in care and

terminating the applicant's access to him were necessary in the

interest of A., the Commission observes that it is not its task to

take the place of the competent national courts and make a fresh

examination of all the facts and evidence in the case. The

Commission's task is to examine whether the reasons adduced to justify

the interference at issue are "relevant and sufficient" (Eur. Court

H.R., Olsson judgment of 24 March 1988, Series A no. 130, para. 68).

The Commission has accordingly examined the reasons given in the

judgment of the Court on 13-14 November 1986.

The Commission recalls that the applicant was present at the

hearing and was represented by solicitor and counsel. The applicant

therefore had the possibility of putting forward any views which in

her opinion would be decisive for the outcome of the case. With

regard to these facts, the Commission finds that the procedural

requirements implicit in Article 8 (Art. 8-2) were satisfied since the

applicant was involved in the decision-making process to a degree sufficient to

provide her with the requisite protection of her interest (see e.g. Eur. Court

H.R., W v. the United Kingdom, loc. cit. para. 100).

As regards the decision of the Court to place A. into care and

terminate access, the Commission recalls that the Court heard evidence

from the family aid, the social worker dealing with A. and the matron

of the mother and baby home on behalf of the local authority, and an

independent social worker and a worker from A.'s nursery on behalf of

the applicant. The Court found that the applicant was unable to cope

with both children, and that help from a family aid or her family

would not be enough to remedy her problems. The Court concluded that

there was thus an unacceptable risk if both children were returned to

the applicant and so ordered that A. who had already suffered two

injuries of unknown origin and with whom the applicant had been found

to have particular problems, should be placed in care. The Court

further considered that if A. had to be removed from the applicant at

a later age, it would be more traumatic for him. In these

circumstances, the Commission finds the decision was supported by

"relevant and sufficient" reasons.

The Commission therefore finds that, bearing in mind the

margin of appreciation accorded to the domestic authorities, the

interference in the present case was justified as being "necessary in

a democratic society" for the protection of health and for the

protection of rights of others.

It follows that the application is manifestly ill-founded

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)