FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14858/03 
by C. against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 14 December 2004 as a Chamber composed of:

Mr J. Casadevall, President
 Sir Nicolas Bratza
 Mr M. Pellonpää
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr J. Borrego Borrego, 
 Mr J. Šikuta, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 2 May 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British citizen born in 1957 and resident in Plymouth. He is represented before the Court by Ms H. Herns, a solicitor practising in Plymouth.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant cohabited with S. (the “mother”), who had two children from other relationships: AD born in 1985 and A. born in 1993. A.'s father had died and the applicant always treated her as if she was his natural child. He and the mother had two children together: N. born in 1994 and Z. born in 1998.

The family had a long history of social work involvement from 1995. These concerns centred on the mother's mental health (she was diagnosed as having a bipolar disorder), the chaotic, disorganised state of the home; the parents' inability adequately to provide consistent care in light of these factors; and the parents' inability to co-operate with professionals.

Initial intervention

In October 1995, Emergency Protection Orders were granted at a time when the mother was admitted to a psychiatric hospital. All three children went to stay with a relative and then A. and N. were moved to foster care. Devon County Council (“DCC”) carried out various assessments, including obtaining a consultant psychiatrist's opinion and the children were returned home.

At the beginning of 1996, the applicant was sent to prison for offences of dishonesty and possession of amphetamines and served 12 months of a two year sentence.

On 6 August 1996, DCC obtained Supervision Orders in respect of the children. The situation was unsettled and difficult with the mother failing to co-operate and the family changing address several times.

In March 1997 the mother was admitted to a psychiatric hospital for a month.

On her discharge, A. and N. came home while AD remained with her grandmother. In May 1997, DCC renewed the Supervision Orders.

In August 1997, Cornwall County Council (“CCC”) became involved as the family was now resident in Cornwall. The applicant was then released from prison and returned home.

On 17 October 1997, the Supervision Orders in respect of the children were further extended.

On 23 January 1998, CCC obtained Interim Care Orders in respect of A. and N. An extremely lengthy assessment of the parents was carried out, including expert reports from Dr McGaw, Consultant Clinical Psychologist, Dr Redding, Consultant Child and Family Psychiatrist and Dr Hand, Consultant Psychiatrist on behalf of the mother. While the three experts did not consider it was appropriate to remove the children from the parents, it was found that A. was an emotionally and behaviourally damaged child, caught up in her mother's delusions and both A. and N. were suffering from developmental delay.

In September 1998, Z. was born.

The Care Plan and Final Care Order

In March 1999, the hearing on the final care order application took place. On the first day, after considerable discussion, the parties reached agreement. “Amended Threshold Criteria” were admitted by the parents as providing the necessary basis in domestic law for implementing care measures to protect the children from harm. The Care Plan was also amended. It included a Contingency Plan indicating that the local authority would assess the applicant as sole carer if the mother became unavailable to parent the children. In the section “Arrangements for ending placement” it was added that “save in emergency the children would not be moved until a Core Group Meeting had been convened”. A considerable package of support was included in the plan: social workers to visit the family twice weekly to work on parenting issues and support children; family aide to visit weekly to take out A. and N.; community psychiatric nurse to visit twice weekly; local authority to assist with transport to school; N.'s referral to speech therapy to be followed up; A. to be offered therapy at a children's home; N. to be offered direct work with social worker as part of family therapy; health visitor to visit weekly and Core Group meetings to take place at six weeks intervals to review situation and adjust programme of support as necessary. The applicant alleges that this promised support was not in fact available, or that it became unavailable as time passed.

On 8 March 1999, Care Orders were made in respect of all three children. The hearing was not contested as the Care Plan now provided for the children to stay at home. A Parental Responsibility Order to the applicant was made in respect of N. and Z. on recommendation of Dr Redding as he was “... the more containing parent”.

Three months later, the family returned to Plymouth in Devon. There followed a disturbed period during which the family lived in temporary accommodation. The children were twice removed into foster care, on both occasions when the mother was being detained for assessment under the Mental Health Act.

On 18 October 1999, the family moved into a permanent address.

On 4 November 1999, the children returned home. A period of stability followed as acknowledged in the local authority reviews.

In September 2000, the mother gave birth to a stillborn child, G.

In November 2000, at the local authority review, it was reported that the children were doing well at school with 100% attendance and while the applicant's wish for the care order to be discharged was not appropriate at that time, it was to be given “serious consideration ... if the current, recent level of progress particularly in respect of the children's education is maintained.”

In January 2001, the mother was admitted to a psychiatric unit for a short period after an incident in which she had taken amphetamines, allegedly, injected by the applicant.

In March 2001, the local authority review noted no health or school attendance concerns for the children. A new social worker was to be nominated to look into the possible discharge of the care orders.

On 9 July 2001, the mother and children were recorded as being provided with emergency bed and breakfast following a domestic violence incident.

Ms S. was appointed as the family social worker on 3 August 2001. There had been none for the previous six months.

On 4 September 2001, Ms S. first visited the family. The mother was presenting as “manic” that day and accused the applicant of sexual abuse of Z. After investigation, it was accepted that these allegations were groundless. However in the applicant's view the local authority continued to believe that the children were at risk of sexual abuse.

On 20 September 2001, at a review, Ms S. stated that she could not support the parents' request to discharge the Care Orders. She took up the concern whether it was safe to leave the children in their parents' care any longer. Her concern was based on the state of the family home and the mother's mental health. The parents' case was that Ms S. overstated the problems.

On 8 November 2001, the children were removed. No Core Group meeting took place prior to removal as had been set out in the Care Plan. The mother, who was ill, and the applicant, who was struggling to cope, did not disagree that the situation justified temporary respite care.

The freeing for adoption application and procedures

On 29 November 2001, there was a Planning Meeting. Ms S.'s report concluded that the local authority had to consider the long term needs of the children in the context of long term care.

The parents separated temporarily at this time. They were permitted contact which did not go well. The mother was ill and caused the children anxiety and while the applicant handled contact well, he was unable to distance the children from the effects of the mother's illness. Contact visits were also not regularly attended.

On 8 January 2002, a Permanency Planning Meeting was held by the local authority to which the parents were deliberately not invited. This omission had already been found to breach Article 8 in a previous case involving the local authority and subsequently found by the domestic court to breach the parents' rights in this case. At this meeting, the plan for adoption of the three children was made.

On 20 March 2002, the mother applied to discharge the Care Orders. The applicant later made the same application.

On 17 April 2002, the Adoption Panel recommended adoption as being in the children's best interests.

On 13 May 2002, CCC made an application to the court for authority to refuse contact between the children and parents.

On 17 May 2002, Mrs B. was appointed guardian of the children. She had been involved in the previous proceedings and knew the family well.

On 23 May 2002, the court made an order permitting refusal of contact between the mother and the children, based on her disruptive influence during periods of illness. The same day, Mrs B.'s appointment as guardian was terminated as, apparently, CAFCASS (Children and Family Court Advisory Support Service) wanted to appoint a guardian from within the administrative area concerned (Cornwall). On 29 May 2002, Mr H. was appointed. He was not able at any stage to see the children with either parent. He was to be absent for the final three days of the hearing. Dr Gay, the Consultant Child Psychiatrist appointed by the court to report on the emotional needs and attachment of the children, was also not able to see the children with their parents. As a result, Mrs B. was called to give evidence by the applicant at the final hearing.

In August 2002, the applicant's contact was terminated after CCC made a further application to refuse contact, based on the fact that the applicant had taken a letter from the mother to N. This application was adjourned by the court to be dealt with at the final hearing which was brought forward to October 2002. No contact was allowed meanwhile.

On 24 September 2002, the applicant made application under the Human Rights Act 1998 seeking orders to direct CCC to return the children home under the Care Order. This was adjourned to the final hearing.

On 27 September 2002, the case was transferred to the High Court.

CCC made application for orders to free the children for adoption if the parents' applications to discharge the care orders failed. It claimed that it had found prospective adopters approved by the Adoption Panel on 1 May 2002.

On 29 November 2002, after an eight day hearing, the High Court dismissed the application for discharge of the Care Orders, dismissed the applicant's application under the Human Rights Act 1998 and granted CCC authority to terminate contact with the applicant. It also granted the applications to free the children for adoption. CCC had produced the Schedule II report, only after the parents' counsel had finished their closing submissions. The judge refused to disclose to counsel an anonymised version of the completed section on the adoptive parents which was seen by himself and the guardian only. The guardian had previously refrained from giving approval to the freeing application but did so after reading the full text of the report.

The judge found inter alia :

“I am quite satisfied that it was necessary for Cornwall to act as they did. It is true that the children were not facing life-threatening danger but it was clearly time for the children to be moved from a chaotic home situation, where their needs were not being met, while an assessment took place. ...

I am quite satisfied that initially Cornwall's plan was to provide respite care. [Ms A.] was subjected to a good deal of criticism that the local authority moved almost immediately to the present care plan, namely adoption, but I do not accept this. True it is that in [her] report to the planning meeting she concluded by saying that '... the local authority must consider the long term needs of the children in the context of a placement outside the family' but this was no more than a glimpse of the obvious if the parents did not change.

The local authority are also criticised for not implementing the care plan as envisaged; there had been no core group meetings for some time, there had been no core group meeting prior to removal and [the applicant] was not assessed as a sole carer, again prior to removal. The short answer to that is that I am quite satisfied that the local authority were entitled in all the circumstances to treat the situation which confronted them on 7.11.01 as an emergency requiring prompt and decisive action. Moreover since it was an emergency and since the father had ... refused to cooperate with [Ms A.] the situation did not admit of any further assessment at that stage. ... I do accept that there had been no core group meetings organised. This was Cornwall's responsibility and they clearly and lamentably failed to comply with that part of the plan. This is part of a wider failure in my judgment to manage these care orders in a way that safeguarded the best interests of the children.

... The next stage in the planning process was LAC review meeting held on 13.12.01. This was the first such meeting the parents had attended for some time. Numerous concerns were expressed about the children; the state of N.'s teeth; A.'s confusion ... described in fact as a 'very sad and confused little person'; N.'s continued incontinence and soiling; Z.s lack of boundaries and delayed speech. It is right to balance that picture with the positives: Z. is described by the foster carers as a happy contented child, N. had settled well in school and the 3 children were described as a close family unit ...

At some point during a recess in this review meeting [AD] is described by [Ms A.] as sharing her ... concern that the children should not return to their mother, she apparently went on to describe how [the applicant] would inject her mother with amphetamines... I understand that [AD] has since retracted or denied that she ever said this, but I am however quite satisfied that [AD] did say that to [Ms A.].

The conclusion of the review was that 'the children should be looked after outside the family on a permanent basis which will need to be agreed by a permanence planning meeting'.

Such a meeting was held by Cornwall on 8.1.02. The parents were deliberately and as a matter of policy not invited ... I am quite satisfied that the parents were wrongly not invited to the meeting ... I find that in failing to invite them the parents were excluded from the decision-making process (looked at as a whole) and [this] was in breach of their Art. 6 and Art. 8 rights. It is of course another matter whether I should in those circumstances accede to the father's application and provide him with the remedies he seeks ...

... In the light of all the evidence I have heard I have reached the clear and firm conclusion that these children cannot return to the care of their parents or either of them ... I am in no doubt that what these children need is a permanent stable and caring home with parents who can meet their needs, not just for a number of months interspersed with breakdown and trauma, but permanently for the rest of their childhoods. ... if any of these children were to return to the parents' care they would ... almost certainly suffer significant emotional harm. The parents simply cannot be relied upon to provide consistent good enough parenting on a long term basis. Each ... for different reasons lacks the necessary insight into how their behaviour could affect the children. I have no confidence that the parents can deliver such good enough parenting even with the most intensive support package round them. The risk is far too high that the mother will suffer further relapses in her mental health or abuse amphetamines ... The father even disputes that the children have suffered any emotional or physical neglect over the years which in my judgment betrays an appalling lack of insight ...

I reach the same conclusion so far as the father's application for sole care is concerned. There are almost more problems with this ... I do not accept that they would separate. They are not separate now ... But even if it happened and the mother lived elsewhere the potential for disruption from her is enormous... and the likelihood of him being able to provide consistent good enough parenting for these 3 children ... is remote. He has never done it in the past for any length of time and I simply do not accept that he could do it in the future and in reaching that conclusion I am mindful of the father's inconsistencies over contact and his failure to address the concerns about the home by the time of the guardian's first visit.

I reject [the] submission that the father has not been properly assessed; I have referred to [Ms A.'s] assessment and ... that of Dr Gay but in addition a hearing such as has taken place before me is in my judgment an assessment of every possibility.

... the remedies sought by the parents would in my judgment be most unjust to the children and completely inappropriate.

In my judgment Cornwall was right to change the care plans for these children because the situation had clearly been reached by November 2001 where it was no longer in their best interests to remain in their parents' care. I approve the new care plans - in my judgment adoption is far the best way of achieving permanence for them. No professional in this case favoured long term fostering ... I am well aware that such a plan is an interference with the Art. 8 rights of the parents and I am mindful of Cornwall's duty to make a serious sustained effort to facilitate family reunification, however in my judgment Cornwall's duty must be viewed over a much longer time scale than simply since November 2001; furthermore it seems to me on all the evidence I have heard that to make such efforts to facilitate family reunification after November 2001 could well have violated the children's Art. 8 rights. ...

I am quite satisfied that if the children are to thrive in an adoptive home they cannot have ongoing direct contact to the parents. There are just too many risks here all identified clearly by the evidence; the danger is that contact to the parents might not only be disruptive and traumatic in itself ... but also it might served to undermine the children's ability to thrive and have confidence in their adoptive home. Indirect contact is another matter ... I leave all that to Cornwall to arrange in the best interests of the children ...

I turn now to the freeing application and I am in no doubt ... that adoption is overwhelmingly and urgently in the best interests of all 3 children; as Dr Gay said they need to be kept together and in a secure and stable placement. A. and N. as damaged children will clearly benefit from skilled and sensitive parenting; I am quite satisfied moreover that A. is desperate for such a home and does not want to return to all the uncertainties and inconsistencies of care that she experienced with her parents. ... such a placement can for all 3 children best be provided by adoption. The alternative possibility that of long term fostering is in my judgment a very poor second best. It cannot necessarily provide permanence and the children would remain in the care system ...”

The judge refused leave to appeal. On 2 December 2002, the applicant applied to the Court of Appeal for permission to appeal. Permission was refused. After an oral hearing on 5 December 2002, the renewed application was refused.

On 9 December 2002, the mother made an application for goodbye contact, refused by the High Court on 18 December 2002. CCC however assured the parents that arrangements would be made for a video to be made of the parents for the children and vice versa. No videos were prepared or received.

The parents were told that the children were introduced to the prospective adopters on 7 December 2002 and placed in the adoptive home on 20 December 2002.

On 18 December 2002, the applicant and the mother separated.

Subsequent events

On 5 March 2003 CCC informed the applicant that the placement broke down on 15 January 2003. The children were transferred to new foster carers.

On 25 March 2003, CCC informed the applicant that they were pursuing another adoptive placement.

On 24 April 2003, the CCC held a “Looked After Children” review to which neither the applicant nor the mother were invited.

On 20 June 2003, a case consultation concerning the children was held. A social worker had now been allocated to them as from 10 June. The meeting identified the foster placement as stable and the children well placed.

The children had however been making complaints in particular about the foster carers arguing a lot.

On 8 May 2003, the applicant made an application to the High Court invoking the inherent jurisdiction. The children automatically became wards of court.

On 18 June 2003, the High Court judge discharged the wardship and adjourned the application for contact. The parents were later directed to apply for permission to apply for contact in independently constituted proceedings.

On 8 July 2003, the High Court granted permission to the guardian to apply for a parenting assessment of the applicant and the mother to be undertaken by an independent social worker, Ms T. The CCC opposed this measure.

On 26 August 2003, the applicant applied for permission to apply for contact.

On 24 September 2003, Ms T. reported to the court, recommending contact between the children and both parents. She noted that the children expressed a desire for contact with their birth family and considered that the parents had genuinely separated. She disclosed that the children's names had been changed and expressed grave concerns as to the effect on their identity and self-esteem and the fact that they were now placed in a position of having to use two names. She expressed particular concern at the use of the name of a sibling, G., that had died stillborn in September 2000. It appears that the children's first names were changed one day after their placement with the prospective adopters.

The applicant applied for discovery of the files held by CCC as adoption agency but this was adjourned and finally refused on 5 March 2004 although discovery of the social work running records were ordered.

On 10 November 2003, the applicant was granted permission to apply for contact.

On 1 December 2003, the applicant issued an application to revoke the freeing orders, as one year had now expired from the date the orders were made and such application was now possible.

By statement dated 8 December 2003, the manager of the adoption unit gave some explanation of the breakdown of the adoption placement, referring to the serious illness of a close relative of the adoptive father, difficulties in coping with the children's behaviour and sibling rivalry, that the prospective adoptive father indicated that he did not feel their home felt like their own any more, that both felt that they had taken on more than they had anticipated and in particular that the prospective adoptive father expressed the view that he could see no future with the children.

On 12 December 2003, the court ordered direct contact to take place on three occasions. The applicant was granted permission to apply for residence orders.

On 17 December 2003, the first contact visit took place, the first since the summer of 2002.

On 19 December 2003, social workers interviewed the current foster carers with a view to possible adoption. It was proposed that they be assessed as prospective adopters and if approved that the children be officially placed with them.

However, on 12 January 2004, the foster carers separated. This was disclosed through the children's interviews with the consultant psychiatrist instructed to prepare a report for the court proceedings which was issued on 20 January 2004.

On 16 February 2004, the applicant issued an application for a residence order.

On 5 March 2004, the High Court ordered five further sessions of contact and limited discovery.

On 25 May 2004, the CCC issued their care plan which recommended rehabilitation to the applicant after an assessment at a short term residential establishment run by the CCC known as the “Bungalow”.

On 8 June 2004, the High Court judge ruled on outstanding applications. The orders freeing for adoption were revoked by consent; an interim care order was made in favour of CCC with a care plan that the applicant and the children attend the Bungalow for a period of 4-6 weeks before full rehabilitation, returning to the applicant's home before the school term commenced. There was to be a review by the Court in December 2004. The judge based his judgment on the change of circumstances since November 2002 and the present consensus of the experts and professionals in favour of a return of the children to the care of the applicant, with contact for the mother. The notes of the judgment stated inter alia:

“The Father, I agree, is an impressive man and his commitment to the children is unswerving. He was not deflected from his determination to resume care, even from the time the three freeing orders were made. I have a profound respect for him, and his love is without question and I make no criticism of him whatsoever.”

The applicant has made a claim for damages before the domestic courts for separation from the children which he states that he will pursue if and when the children return home.

B.  Relevant domestic aw and practice

Care orders

Under section 31 of the Children Act 1989 (“the 1989 Act”), on the application of any local authority or authorised person, the court may make an order placing the child in the care of a designated local authority (“a care order”). The preconditions under section 31(2) are that the court must be satisfied that the child is suffering, or likely to suffer, significant harm; and that the harm is attributable to the care given, or likely to be given, not being what it would be reasonable to expect a parent to give. There is no power under the Act for a care order to be made on terms, or accompanied by directions, whether in accordance with a care plan or otherwise. A care plan may be discharged (section 39(1)) or substituted by a supervision order (section 39(4)). An interim care order may be made under section 38(1) which lasts for eight weeks initially and if renewed for four weeks. According to Lord Nicholls in Re: S; Re: W (cited below), the scope for the granting of interim care orders is as a temporary “holding” measure where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to the planning and deciding the future. An interim care order is not a means of exercising a supervisory role over the local authority's implementation of its care plan but gives the court sufficient flexibility to defer making a final order until satisfied that the way ahead is no longer obscured by an uncertainty that is neither inevitable nor chronic.

In deciding whether to make a care order, the court must have before it the details of the local authority's proposed care plan. This is to be put on a statutory footing by new legislation. Section 121 of the Adoption and Children Act 2002 “the 2002 Act” will insert a new section 31A in the Act requiring a care plan to be prepared by the local authority for the purposes of any application which may result in the making of an order. According to the Government, this was expected to come into force in September 2004.

Once a care order has been made, a court retains jurisdiction over two aspects:

(1)      under section 34, the local authority must allow the child reasonable contact with his parents and the court can adjudicate on any dispute as to what is reasonable contact or to vary or discharge any contact order;

(2)      the court may entertain an application by the local authority, parent or child, to discharge the care order or substitute some other order for example, a supervision order.

As concerns the ability to challenge the failure of a local authority to fulfil the terms of a care plan, the House of Lords ruled on the issue in its judgment of 14 March 2002 (Re S (Minors) Care Order: Implementation of Care Plan) and Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 1 FLR 815; hereinafter “Re S; Re W”).

The headnote of the reported case summarised the judgment as follows:

“(1)  Parliament had set out its clear intention in the Children Act 1989 that once a care order had been made, the responsibility for the child's care thereafter lay with the authority, not with the courts, and the courts were not empowered to intervene. The division of responsibility was a cardinal principle of the Act. The introduction of a system which gave the court a supervisory role following the making of a care order went beyond the bounds of the court's judicial jurisdiction because it involved a substantial departure from one of the cardinal principles of the Act. Section 3 of the Human Rights Act 1998 required primary legislation to be read and given effect in a way compatible with Convention rights, so far as was possible, but the judicial innovation of starred milestones passed well beyond the boundary of interpretation and would constitute amendment. The starring system could not be seen as a mere judicial remedy for victims of actual or proposed unlawful conduct by local authorities entrusted with the care of children, justified by ss 7 and 8 of the 1998 Act, as the proposed system would impose obligations on authorities in circumstances where there had been no finding of unlawful conduct and, indeed, no breach or proposed breach of the Convention ...

(2)  The Children Act 1989 was not itself incompatible with or inconsistent with Art. 8 of the Convention. Infringement of the right to respect for family and private life was only likely to arise if a local authority failed properly to discharge its responsibilities under the Children Act 1989; those responsibilities were not themselves an infringement of rights under Art. 8. It might be that there was a failure to provide an effective remedy against local authority infringements of rights under Art 8, as while parents would have an effective remedy in the judicial review process or through proceedings under s 7 of the Human Rights Act 1998, in practice a child with no parent to act for them might not always have such a remedy, but that was not in itself an infringement of Art. 8. Under the Convention, failure to provide an effective remedy for infringement of a Convention right was an infringement of Art. 13, but Art. 13 was not a Convention right under the Human Rights Act 1998. Therefore, legislation which failed to provide an effective remedy for infringement of Art. 8 was not, for that reason, incompatible with a Convention right within the meaning of the Human Rights Act 1998 ...

(3)  Circumstances might perhaps arise in which English law relating to some decisions by local authorities concerning care of children would not satisfy the requirements of Art. 6(1) ... The failure to provide access to a court as guaranteed by Art. 6(1) meant that English law might be incompatible with Art. 6(1), but the absence of such a provision from a particular statute did not mean that the statute itself was incompatible with Art. 6(1). The absence in the Children Act 1989 of effective machinery for protecting the civil rights of young children with no parent or guardian was a statutory lacuna, not a statutory incompatibility. The inability of parents or children to challenge in court care decisions, however fundamental, made by a local authority while a care order was in force, was a different matter. Judicial review apart, the opportunity to challenge such decisions in court would be in conflict with the scheme of the 1989 Act. The issue of whether in this respect the Children Act 1989 was incompatible did not arise in this case, as the parties concerned had not lacked a court forum in which to express their concern at the lack of progress ...

(4)  Interim care orders were not intended to be used as a means by which the court might continue to exercise a supervisory role over the local authority in cases in which it was in the best interests of a child that a care order should be made. Problems had arisen about how far courts should go in attempting to resolve the uncertainties within care plans before making a care order. Where an uncertainty needed to be resolved before the court could decide whether it was in the best interests of the child to make a care order at all, the court should finally dispose of the matter only when the material facts were as clearly known as could be hoped. Some uncertainties relating to the details of the care plan were suitable for immediate resolution, in whole or in part, by the court in the course of disposing of the care order application; other uncertainties could and should be resolved before the court proceeded, during a limited period of 'planned and purposeful' delay. Frequently the uncertainties involved in a care plan could only be worked out after the making of an order. Despite all the inevitable uncertainties, when deciding to make a care order the court should normally have before it a care plan which was sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child in the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, would vary from case to case, but if the parents and the child's guardian were to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific. The court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of over-zealous investigation into matters which were the responsibility of the local authority.”

Representation of children in care proceedings

Section 41 of the 1989 Act provides for the appointment by the court of a “Children's guardian” (an officer of the Children and Family Court Advisory and Support Service “CAFCASS”) for the purposes of specified proceedings for example, applications for the making or discharge of care and supervision orders. CAFCASS's primary function is to safeguard and promote the welfare of children. When the court rules on an application, the guardian's role comes to end. There is no statutory provision for guardians to have a role outside active court proceedings.

Section 118 of the 2002 Act provides for the appointment by the local authority of an “independent reviewing officer” (“IRO”). The IRO is independent of the line management involved in the child's case and his/her role is to participate in statutory reviews, monitoring the authority's functions and referring the case to CAFCASS if appropriate. Referral allows a Children's guardian to take any necessary action through the courts by acting for the child either in proceedings for judicial review or free-standing claims under the Human Rights Act 1998 (“HRA”). The IRO may also refer a child to a solicitor directly if legal assistance is considered more appropriate.

Challenging the making and implementation of a care order

An aggrieved party may appeal the making of a care order to the court on the basis that it was not justified in the circumstances, for example, that the order breaches the Article 8 rights of the parents or children (section 7(1)(b) of the HRA).

Representations to the local authority may also be made by parents and children at the statutory reviews which take place after four weeks, three months and then every six months after the care order. The local authority is required to seek the views of all relevant parties. The local authority must also make available a complaints procedure, involving the participation of at least one person independent of the local authority (section 26 of the 1989 Act). Complaint may also be made to the Local Government Ombudsman if any interested party is unhappy about the discharge by a local authority of its functions under the Act. The Ombudsman can investigate complaints of maladministration (such as bias, neglect, incompetence, arbitrariness) and issue recommendations as to the steps which the authority should take to remedy the injustice to the person aggrieved (see the Local Government Act 1974).

Applications may be made to the courts under the 1989 Act concerning contact arrangements or discharge of the care order.

Any decision of a local authority in relation to a child in its care may be subject to judicial review in the Administrative Court. Judicial review does not provide an appeal on the merits of a decision. Grounds of challenge include illegality, irrationality, impropriety, material error of fact, acting for an improper purpose, failure to take into account relevant considerations, or taking into account irrelevant considerations. Judicial review proceedings may also include a complaint of breach of Convention rights, pursuant to section 7(1) of the HRA. The HRA also confers a free-standing right of complaint in the ordinary courts where it is alleged that a local authority has breached Convention rights in its decision-making in relation to a child in its care.

COMPLAINTS

The applicant complained under Articles 6, 8 and 13 of the Convention.

1. The applicant submitted that the way in which care orders were “unreviewable” by the courts was in breach of Article 6 and/or Article 8 and/or Article 13 of the Convention, in that both parents and children were left without access to court to determine substantial disputes which arose on fundamental issues both on the making of the care order and thereafter as to the manner of its exercise. The nature of the care order was that it did not determine any practical issue in the life of the child, leaving everything, including where the child lived, at the discretion of the local authority. Possible recourse to court, and the available judicial protection, was then limited. Parents might apply to discharge the care order but this was almost impossible in the immediate aftermath of the order and would present difficulties where the parent and child had been separated for any length of time. The most that parents were likely to be able to show was the need for a staged rehabilitation of the child yet the structure of domestic legislation meant that if the local authority was not behind such a plan it could not be imposed upon it. Applications under the Human Rights Act 1998 allowed relief or remedy for a past breach of human rights but could not themselves determine the future of the child. The absence of any legal safeguards ensuring the best interests of the child and continuation of the relationship with parents in that context also raised issues under Article 8.

2. The applicant complained that the freeing for adoption procedure was unfair as the parents had no sufficient or effective access to information and evidence concerning the prospective adopters and the role of the guardian, intended to safeguard the interests of the children, was ineffective (for example, the guardian acquainted with the family was replaced by one who never observed the children and parents together, who failed to pursue an assessment of the children's relationship with the parents and the applicant's ability to parent alone and who approved the freeing for adoption even though he was not allowed to meet the prospective adopters and was shown details only at the last moment). The freeing orders also infringed Articles 6 and 8 by denying the applicant effective access to court following the breakdown of the children's placement. He was unable to be involved in the decision-making process in relation to the future of the children who were left in a state of limbo and this was a disproportionate and unnecessary interference in family life.

3. In addition to these structural and procedural flaws, the applicant submitted that the taking into care of the children and the permanent separation were not, on the facts of the case, justified by an overriding requirement in the children's interests and therefore in conformity with Article 8 of the Convention. In particular, there was no sufficient decision-making process, no time was taken to explore other options, the local authority failed to provide the family with promised support, the family had been coping adequately with evidence from the children's school that they did not stand out as unusual, deprived or unhappy and the standard of care was assessed at the material time of removal by a social worker of only two years' post qualification experience. The Care Plan had recognised that the family needed support to parent the children but the State nonetheless proceeded to adopt the children when it should have kept them at home and provided support.

4. The applicant added a complaint in his observations in reply, having discovered that the children's names were changed after they were placed with prospective adopters. He complained that this constituted an interference with the right to respect for family life of the children and of the applicant (at least for N. and Z. whose names he chose).

THE LAW

The applicant complains under Articles 6, 8 and 13 of the Convention about the non-enforceability of care plans, the taking into care of the children and their placement for adoption.

Article 6 § 1 provides as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 8 provides as relevant:

“1.  Everyone has the right to respect for his ... family life ...

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.”

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] 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.”

A.  Issues under Article 34 of the Convention

The Government noted that the applicant appeared to complain about breaches of the mother's rights at various places in his submissions and submitted that he was not entitled to do so. Insofar as he referred in his own complaints to the failure of the CCC concerning the failure of the CCC to invite him to the meeting on 8 January 2002 at which it decided to pursue the adoption of the children, they contended that he could no longer claim to be a victim in light of the High Court judgment.

The Court observes that the mother has not been identified as an applicant in the present application and that no letter of authority has been lodged entitling anyone else to represent her. The applicant in his submissions has clarified that he does not intend to make any complaints on her behalf. As regards the exclusion from the meeting on 6 January 2002, the applicant also accepted that the domestic authorities had acknowledged the breach of his human rights and that in this limited respect he was not a “victim” for the purposes of the Convention.

Accordingly, the scope of the examination of this application excludes the position of the mother and the failure of the local authority to allow the applicant to participate in the meeting of 6 January 2002.

B.  Issues under Article 35 § 1 of the Convention

1.  The Government's submissions

The Government submitted that significant parts of the application were inadmissible for failure to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

Firstly, they submitted that insofar as the applicant has complained that there had been insufficient judicial control of the CCC's decision-making under the care orders, this had not been pursued in his notice of appeal to the Court of Appeal or in his oral argument.

Secondly, they claimed that he had not complained during the proceedings about insufficient access to information concerning the prospective adopters and had in fact argued that the CCC had failed to comply with its obligations under the Adoption Rules to disclose information to the court and to the guardian, a failure which was remedied before the trial ended. It was only at the very end of the trial that he made an application for the information to be disclosed to him and even then he did not voice any challenge to the disclosure provisions of the Adoption Rules or otherwise invoke the argument which he now puts forward, that Articles 6, 8 or 13 of the Convention required disclosure to him. Further, on appeal, the applicant criticised the CCC for allegedly failing to comply with the disclosure obligations under the Adoption Rules but made no case that further information should have been provided to him or that there had been any breach of a Convention right due to any non-disclosure.

Thirdly, the applicant did not raise any complaint in the proceedings that the guardian had failed to discharge his responsibilities and had thereby breached any Convention rights.

Fourthly, they submitted that his complaint about denial of contact with the children after the freeing order was premature as it was made in advance of his making use of the legal remedies open to him, as shown by the fact that the applicant has since obtained an order for contact with the children.

Fifthly, the applicant's complaint about “permanent separation” from his children was similarly premature as remedies existed which he is currently using to seek to revoke the freeing orders and resume parental responsibility for the children.

Finally, as regarded events subsequent to the placement for adoption, they noted that the applicant had lodged a claim for damages and he can raise in those proceedings any allegations about the breach of Article 8 rights due to the changing of the children's names, or any other complaints about CCC's conduct.

2.  The applicant's submissions

The applicant contended that there was no failure to exhaust domestic remedies at the time that the application was filed.

The applicant submitted that he was not able to raise any complaints about the “unreviewability” of care orders due to the House of Lords decision in Re S; Re W (cited above in Relevant Domestic Law and Practice) but in any event his appeal to the Court of Appeal had included the argument that the judge should have directed the local authority to carry out the care plan rehabilitating the children to the parents. He also claimed that he raised his complaints about lack of parental access to information about the prospective adopters before the judge and on appeal. He submitted that he had made an application for information before the trial started and that the judge's order that an edited Schedule 2 report and summary of prospective adopters be provided to the guardian by 22 October and the other parties by 23 October 2002 was not complied with by the CCC. When eventually CCC produced a report to the judge after the evidence and submissions had been completed, the applicant applied to see it but this application was peremptorily refused. There was nothing else that he could have done and in any event the obligation was on the guardian and the court to ensure a proper investigation of the prospective adopters. While he did not complain before the court about the guardian in Convention terms, he did submit that the guardian had failed in his duty under domestic law, which submission was rejected by the judge.

While the applicant had since made application for return of the children arising out of the breakdown of the adoptive placement, this was itself the consequence of the breaches of the Convention which took place in November 2002. While he has lodged a claim for damages, this is limited to the actions of the local authority since the freeing orders were granted as it is not possible to recover damages in respect of any judicial act (section 9 of the Human Right Act 1998). He denied that his complaints were in any regard premature. His complaint was that the freeing orders and orders of permanent separation made at that time were in breach of Articles 6, 8 and 13; it was only due to the later breakdown of the placement and evolving circumstances which rendered later applications for contact and residence effective remedies.

3.  The Court's assessment

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, ECHR 1996-VI, §§ 51-52, and Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65-67).

The application of the exhaustion rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights and that it must be applied with some degree of flexibility and without excessive formalism. The rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see the aforementioned Akdivar and Others judgment, § 69, and the Aksoy judgment, §§ 53 and 54).

Turning to the present case, the Court would note that the applicant contested the local authority's change in direction from the care plan in the proceedings before the High Court and in substance raised the principal complaints which he now makes in this application. It does not consider that a failure expressly to invoke the provisions of the Convention either in the High Court or the Court of Appeal as regards the failure to follow the care plan or as regards the failings of the guardian and court concerning the investigation of the prospective adopters discloses a failure to exhaust domestic remedies. As regards the fact that the applicant has since taken proceedings to obtain contact and the prospect of residence orders, the Court observes that this only became possible due to unforeseen events, in particular, the rapid breakdown of the adoptive placement. Further, pursuant to statute, the applicant was only able to bring an application to revoke the freeing orders after the expiry of one year. The Court is therefore not persuaded that this renders the applicant's complaints about the High Court's decision to end contact and free the children for adoption in November 2002 premature. It may however be of relevance to an examination of the substance of the applicant's complaints about the compatibility of the freeing for adoption procedure with his Article 8 rights.

Insofar as the applicant has raised a fresh complaint, after communication, concerning the apparent changing of the names of the children by the adoptive parents which was allegedly condoned by the local authority, the Court notes that he has referred in his own submissions to a pending claim for damages for breaches of his and the children's rights by the local authority after the High Court decision in November 2002. Since in those proceedings the domestic courts may rule on this issue and there is the possibility of redress, by way of a finding of a breach of the Convention and, if appropriate, an award of damages, the Court would uphold the Government's preliminary objection in that limited respect and reject that part of the application as premature, namely, for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. It will examine the remainder of the application below.

C.  The applicant's complaints about the judicial control of care plans and care orders

1.  The Government's submissions

The Government argued that it was fully compatible with the Convention for the relevant public authority to have the primary role in deciding which measures to take in the interests of family rehabilitation and to keep the implementation of the care order under review. The local authority is the public body with immediate knowledge of the circumstances of the case, in particular the child concerned, and is best placed to take prompt action to safeguard the interests of the child as the situation fluctuates and evolves. It also reduces uncertainty and scope for continuing and promoting arguments about what should happen to the child, with repeated reviews by different persons of the same basic facts. Increase of judicial supervision would also have the effect of promoting a defensive attitude and risk inappropriate focus on short term goals in a care plan and excessive rigidity in care plans. The absence of continuing supervision by the court of the implementation of care orders does not breach Article 8 therefore and is compatible with the Court's case-law.

The Government further submitted that this was an area of policy in which Contracting States should be accorded a broad margin of appreciation, where attitudes to appropriate intervention by the State vary widely from one country to another. Insofar as the applicant invoked Article 6 concerning access to court, they pointed out that the applicant had been party to several determinations of the courts with respect to contact with the children, whether they had been properly removed, whether the care orders should be discharged and the children returned, or whether the children should be freed for adoption. They submitted that the applicant had not identified any other issue of fundamental importance which he would have wished to bring before the courts but could not. In the generality of cases, the requirements of Article 6 were satisfied by the provision in the Children Act 1989 for applications to the court on the issue of contact, by the High Court's judicial review jurisdiction and by the availability of a right of action, in the event of breach of Article 8 rights, under the Human Rights Act 1998. However other issues arising in relation to the implementation of a care order, such as day to day questions as to where the child should reside, what latitude be allowed in their conduct, when they should go to bed, did not involve any on-going determinations of any civil right of a parent. The Government also argued that in implementing a care plan the local authority exercises public law obligations and disputes about the fulfilment of those obligations were not disputes about “civil” rights and obligations; and that there was no arguable claim about such rights that could arise under substantive law. Under Article 13, they submitted that no arguable claim of any breach of the Convention arose, which could bring that provision into play.

2.  The applicant's submissions

While the applicant did not deny that in the event it proved possible for him to use certain procedures to place the children's position before a judge at the same time as CCC's own application for orders freeing the children for adoption, he disputed that this constituted an effective remedy. He argued that his case showed in a practical way the dangers and difficulties of “the unreviewable care order” system. The three children had been maintained at home for two years and eight months subject to a care order when they were removed, essentially due to the views of one social worker of only two years' post qualification experience. An adoption plan was determined within days and confirmed within two months. When the applicant began a legal process on 21 March 2002, that took eight months to come to court. Even if the applicant or the mother could have moved earlier to seek relief, he argued that children should not be reliant on parents to ensure Convention compliant procedures; that should be the function of the State. By the time of the hearing, prospective adopters had been identified and the status quo worked in favour of CCC. The judge wrongly declined to discharge the care orders, showing that neither the applicant nor the children had available an effective remedy whereby they obtained sufficient judicial scrutiny of the care order. The applicant rejected the Government's arguments that policy considerations justified the current system, seeing no difficulty or risk arising from allowing courts to rule on fundamental issues to which there is opposition from a parent or child.

As regarded Article 6, the applicant pointed out that a care order cannot be made on terms or accompanied by directions. He submitted that it was not right that parents only had the right to take matters of contact back to the court; all fundamental issues in the life of the family should be subject to court review in order to comply with the Convention. Not to do this was in breach of Article 6. While there are a variety of relief and remedies, these are inappropriate and where used as devices to get into court are rarely successful. The 1989 Act offered only two possibilities – an application for contact and an application to discharge the care order: the former could not assist in issues of placement and the latter was often used but did not have the remotest chance of success, whereas in most cases state intervention continued to be needed in the interests of the children. Nor was the applicant aware of any case in which judicial review had been successfully used to alter a care plan or to secure rehabilitation of children against the wishes of a local authority. The applicant's advisers were also not aware of any case whereby an application under section 7 of the HRA resulted in the imposition of an injunction requiring a local authority to change its care plan (in Re: M, [2001] 2 FLR 1300 the court ordered the local authority to reach a fresh decision; while in Re:G [2003] 2 FLR 42 Munby J endorsed the idea that injunctions were available to force a local authority to follow a particular course in respect of a child but was not, in the uncontested circumstances of the case, called upon to make one).

The applicant argued that Article 6 required that any substantial dispute about aspects of family life or fundamental aspects of parental responsibility had to be justiciable in the courts, not just contact, and these rights were civil in nature and could not be regarded as extinguished by the issuing of a care order. Under Article 13, he reverted to his arguments above as to the lack of any effective remedy.

3.  The Court's assessment

The Court observes that the essence of this part of the application lies in the applicant's assertion that there was no procedural protection or effective access to court as, after the issuing of a final care order, domestic courts could not intervene to enforce the care plan or determine disputes between the parent and local authority as to how it should fulfil its obligations in respect of the child.

The Court reiterates, however, that Article 34 of the Convention requires that an individual applicant should claim to have been actually affected by the violation he alleges. That Article does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against the state of law in abstracto simply because they consider that it contravenes the Convention. Nor, in principle, does it suffice for an applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment (Klass and Others v. Germany, 6 September 1978, Series A no. 28, § 33). The Court has accepted that an applicant may be a potential victim: for example, where he was not able to establish that the legislation he complained of had actually been applied to him on account of the secret nature of the measures it authorised or where an alien's removal had been ordered, but not enforced, and where enforcement would have exposed him in the receiving country to treatment contrary to Article 3 or to an infringement of his rights under Article 8 of the Convention. However, in order to be able to claim to be a victim in such a situation, an applicant must produce reasonable and convincing evidence of the likelihood that a violation affecting him personally will occur; mere suspicion or conjecture is insufficient (see generally 56672/00, Senator Lines GMBH v. Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom (dec.), no. 56672/00, with further references, in particular to the above-mentioned Klass and Others v. Germany judgment).

In the present case, the Court recalls that the parents did not contest the care proceedings and agreed to the care order which was made in respect of the three children on 8 March 1999. This was based on the care plan drawn up by the local authority which provided for the children to remain at home and for support to be offered to the family under continued supervision of social workers. Some twenty months later, the local authority removed the three children due to a purported deterioration in the family situation. A number of applications were then made by the applicant and mother and the local authority, which were determined after a hearing in the High Court in a judgment dated 29 November 2002. It is apparent that the judge considered, on the basis of the evidence, whether or not the children should be returned to the applicant's care and what the best interests of the children required for the future. In these circumstances, it would appear to the Court that the principal issue in dispute, the placement of the children, was reviewed by a domestic court which would have had the power to award redress, namely, to discharge the care orders and return the children home. While the applicant appears to complain that this was not an effective remedy as it relied on the existence of a parent to make such an application, the Court would note that the children in this case did have parents who were prepared to take applications in the courts to defend the interests of the family as a whole and it does not consider that the applicant or the children can claim to be a victim of this alleged defect in the legal framework.

To the extent that he complained that the local authority breached his rights by deviating from the care plan to remove the children and pursue adoption, the Court notes that in the Re S; Re W judgment in the House of Lords (see Relevant and Domestic Law and Practice above) Lord Nicholls expressly held that if a local authority conducted itself in a manner which infringed the Article 8 rights of a parent or child “the court may grant appropriate relief on the application of a victim of the unlawful act”. He went on to cite with approval the judgment in Re M (cited in the applicant's submissions above) in which, applying the provisions of sections 7 and 8 of the 1998 Act, Holman. J. set aside a decision of a local authority reviewing its care plan for a child in its care on the grounds that the decision did not comply with the Article 8 rights of the parents. In these circumstances, the Court is unable to conclude that proceedings under section 7 could not provide an effective remedy. Whether or not the parties in Re M agreed to the court's order, it indicates that the court has the power to intervene in respect of a local authority's conduct in relation to a care plan.

Insofar as the applicant's contact with the children was concerned, it was also open to him at any time, prior to the freeing for adoption order, to bring that matter before the court under the 1989 Act.

The Court therefore finds that the applicant has not identified any matter which he was unable to bring before the courts during this period. Therefore even assuming that Article 6 applied, as the applicant argues, to other matters besides contact and the discharge of the care order, he has not shown wherein he is a victim of any purported lacunae. Insofar as the applicant alleges that the scrutiny given by the court in his case was ineffective, this appears to attack the merits of the judge's decision, in particular that his assessment of the evidence was wrong and his conclusions misguided. Article 6 however only requires access to court, not a particular result. While it is true that Article 8 requires that decisions interfering with family life be justified, in particular that they are supported by relevant and sufficient reasons, this aspect of the applicant's complaints is examined below. It cannot be relied upon in itself as disclosing that the system of court review provided is ineffective as being incapable of providing Convention compliant decisions or redress for breaches.

The Court concludes that the applicant has not shown that he has been a victim of any systemic failing as regards the availability of court procedures. Consequently, he cannot claim to be a victim of a violation of the Convention within the meaning of Article 34 of the Convention, and this part of the application must be rejected pursuant to Article 34 and Article 35 §§ 3 and 4 of the Convention.

D.  The applicant's complaints about the freeing for adoption procedure

2.  The Government's submissions

a.  Concerning the disclosure of information about the prospective adopters

The Government agreed that the making of a freeing order was determinative of the civil rights and obligations of the applicant as a parent. They denied however that the withholding of information about the prospective adopters was a bar to effective access to court or otherwise rendered the proceedings unfair. They pointed to the limited role played by the adopters in the application which was to declare a child to be free for adoption by any prospective adopter that might apply for adoption in the future. The merits of any prospective adopter were not in issue before the court in making a freeing application; it would only rule where the application for adoption was made after a placement was purported to be going well. Prospective adopters were not party to such applications and the characteristics of prospective adopters were only relevant to the consideration of whether the child was likely to be placed for adoption and in determining whether the parents were unreasonably withholding their consent to the making of a future adoption order. There is no obligation on the adoption agency to place a child with any particular adopter, and no guarantee that a placement will go well or that the adopters will go on to apply for an adoption order. In any event significant information was disclosed to the applicant; the information which he referred to that had not been disclosed was peripheral (for example, why Mr X.'s previous marriage had failed, whether Mr and Mrs X. would be long term carers given the choice and their attitude to post-adoption contact); and information was disclosed to the guardian and to the court, both of whom approved the freeing order on the information provided.

Nor did the alleged non-disclosure of information prevent the applicant from being involved in the freeing proceedings to a degree sufficient to protect his interests under Article 8; the proceedings were fair as outlined above, and the withholding of information was necessary for the protection of the interests of the adoptive parents and the children by protecting their anonymity and future security.

b.  Concerning the role of the guardian

The Government considered that no issue arose from the fact that Mr H.was appointed to represent the children rather than Mrs B. who had earlier acted on their behalf. Her earlier reports were before the court, she gave evidence and it had been three years since she had been in contact with them. While Mr H. was not at the trial in the latter stages, this was not his fault as the trial overran and he was required to attend another court. The applicant made no complaint to the judge about his non-attendance nor sought any adjournment to ensure that Mr H. could attend. Although Mr H. did not observe the children together with the parents, he did meet them separately on a number of occasions and in any event contact had been suspended by court order as the conduct of the mother, and then the applicant, was harmful to the children. His report provided a lengthy assessment of the children's views and feelings and also an assessment of the parents' ability to care for them, and he was entitled to take into account the finding of Dr Gay that the applicant and the mother were unlikely to be able to separate. They submitted that there was no ground for criticising Mr H's approval of the freeing order despite not meeting the prospective adopters; he insisted nonetheless on obtaining the necessary information and in his report made no complaint of having insufficient information to reach a decision. They pointed out that the judge also rejected the applicant's complaints about the guardian's performance of his functions. The applicant had not shown how the guardian's alleged inadequacies deprived him or the children either of a fair trial or requisite procedural protection of their Article 8 interests.

c.  Concerning the applicant's procedural rights after the freeing order

The Government submitted that the applicant had not identified any issue which he wished to raise after the freeing order which he was prevented from raising. In any event, as a parent lost parental responsibility after such an order no dispute about any rights could arise under Article 6. To the extent that there was any restriction on any implied right of access to court, the one year period imposed before a parent could apply to revoke the freeing order was necessary to permit the adoption agency a reasonable period during which to secure an adoption and prevent further damaging uncertainty or unsettling litigation. The requirement that a parent obtain leave to make applications for contact was also necessary for that reason.

The Government also submitted that the applicant's interests under Article 8 had necessarily been curtailed by the freeing order and he was no longer a “parent” as such. To the extent that there was any interference through a restriction in procedural rights, this was in the best interests of the children as the court had decided adoption was in their best interests and it was within the margin of appreciation to give one year before the parent could apply to revoke the order as allowing reasonable time to achieve a successful placement without any hampering interventions.

2.  The applicant's submissions

a.  Concerning the disclosure of information about the prospective adopters

The applicant argued that the information concerning the suitability of the prospective adopters was of crucial importance in the proceedings, as the court was required to give first consideration to the welfare of the children in reaching its decision and where an adoptive couple are being proposed the court must examine the placement in some detail. Accordingly, the Adoption Rules provide for details to be set out in a Schedule 2 report. While some information was given to the applicant, it was too little, too late and as events showed his concern about their suitability was entirely correct. The summary disclosed to the parents was bland and uninformative; the information required to be provided to the guardian and court was provided only after the submissions had ended and the judge was merely told that the guardian had approved and only saw the report for a few minutes himself. A proper enquiry ought to have revealed that this couple did not have in fact the time, commitment and understanding necessary for an adoption to work. The applicant disputed that the information that was not disclosed to him was peripheral; he had expressed concerns that the placement was unsuitable, doubtful in terms of their age and abilities and their attitude to long term care, open adoption and contact were not clarified. It was essential, since adopters were not examined in court, that the minimum requirements imposed by the rules concerning the filing of a report in good time were complied with and that a thorough investigation was carried out by the guardian. In the event, the procedure was a farce.

b.  Concerning the role of the guardian

The applicant submitted that the judge had early expressed that it would be desirable for the guardian to see the prospective adopters and discuss the Schedule 2 report, in particular how they would care for the children as they both had full time careers. Mr H. had also expressed the view that a meeting was necessary. However CCC informed the guardian that it would not set up a meeting unless ordered to do so and thereafter both court and guardian abandoned any attempt to take the matter further. He pointed out that the guardian in his final report stated that he did not feel he was in any position to advise the court as to the adopters. When the guardian was allegedly shown and approved the Schedule 2 report, it was while he was in court in another case and without the benefit of his legal advisers. He also referred to the background of appointment of Mr H. as showing that he could only be of limited assistance to the court, whereas it was obvious that Mrs B., who had a long working knowledge of the family and how it functioned was the proper person to appoint. Mr H. never observed the children with either of their parents, although he had ample time to do so as regards contact between the children and the applicant. He also failed to pursue a requested expert assessment of the applicant's parenting ability and in the end due to time constraints relied on court experts who did not see the children with their parents either.

c.  Concerning the applicant's procedural rights after the freeing order

The applicant submitted that it was only the drastic change in circumstances which allowed him to raise his concerns before the courts after the freeing order and he was not able to do so before those changes were brought to his attention. For example, it took him until 10 November 2003 to obtain permission to apply for contact. As a result the children were left for a long time in “limbo” while the local authority allowed the case to drift and there was no one to review the actions of the adoption agency. He pointed out that this defect was removed under recent legislation which allowed parents to retain parental responsibility and removed the one year bar on applications to revoke the freeing order. He admitted that if this had been in force at the time this ground of complaint would not have been open to him.

The applicant disputed that the freeing order removed all his rights for the purposes of Article 6, it being incompatible with the fundamental notion of family life to allow “extinction” of such rights. He argued that it was not necessary to sever ties at that stage and that it was not justified by the child's best interests. The restrictions on a parent's access to court were arbitrary; they could leave the family in limbo for a long time and the ability to apply to the court for permission to apply for contact was ineffective if the parent was unaware of what was going on.

3.  The Court's assessment

The Court considers that the complaint of the applicant under this head raises serious issues under Articles 6, 8 and 13 of the Convention which require determination on the merits. It follows that it cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the complaint under this head inadmissible has been established.

E.  The applicant's complaints about the removal of and separation from his children

1.  The Government's submissions

The Government submitted that his complaints about the emergency removal are without merit, as the applicant and the mother agreed at the time that the children should be removed due to the circumstances and he did not make any attempt to secure their return for many months later. When the matter did come before the court, the judge, after a lengthy adversarial trial at which he heard and saw all the key witnesses, found that there had been a “desperate situation” requiring prompt and decisive action. Any interference was plainly justified by “relevant and sufficient reasons” in the children's interests.

As regarded the decision to free the children for adoption, there were also relevant and sufficient reasons. They pointed out that there had been no rush to adoption and that other forms of protection had been used earlier with a view to rehabilitating the family together but had not had the desired effect of protecting the children from harm. The children had suffered significant harm in the past and risked further harm and the situation at home had not significantly improved. The situation had been aggravated by the applicant's unwillingness to talk to the social worker about her concerns and his conduct in continuing to inject the mother with drugs despite the devastating effect on her health and the welfare of the children. As the children had been under supervision or care for more than five years, the authorities understandably and justifiably considered that the children's long term future should be settled and that it required care outside the family. The judge's decision was supported by three experts, none of whom supported long term fostering, while Dr Gay was very doubtful about the applicant's capacity to provide the environment which the children required.

The Government also pointed out that the freeing orders did not permanently separate the applicant and his children; they were revocable after a year and the applicant was able to apply for contact in the interim period.

2.  The applicant's submissions

The applicant submitted that there had been no emergency justifying the removal of the children. The guardian had said during oral evidence that it was not an emergency and that if the children had not been removed the outcome of the proceedings might have been different. The applicant and the mother had believed that the children had only been taken for a period of respite care and he disputed that the situation was so urgent that the local authority could not have convened the core group meeting envisaged by the care plan before a removal took place. As a result of the failure to hold such a multidisciplinary meeting, planning was dependent on the views of one inexperienced social worker and did not consider any possible rehabilitation. Already prior to and immediately after the removal, the local authority were envisaging a permanent separation and severance of permanent links contrary to the principle that this should only occur in exceptional circumstances.

The applicant disputed that the experts in the proceedings rejected long term foster care as an option: only one independent expert, Dr Gay, expressed a view on this issue and he did not make a recommendation. Only the local authority professionals offered an opinion. The applicant criticised the judge's findings in the case as riddled with flaws, false and unjust. He submitted that the judge was wrong not to see the children to clear up what their wishes were, rather than glossing over this aspect, that the judge re-invented the seriousness of the allegations in the care proceedings and the level of concern, that he never dealt with the evidence of the parents that the children were in fact not suffering at the time and failed to take account that signs of disturbance arose after their removal into care away from their parents and that he allowed the local authority to rush the orders without proper and considered examination of the details of the prospective adopters.

3.  The Court's assessment

The Court considers that the complaint of the applicant under this head raises serious issues under Articles 6, 8 and 13 of the Convention which require determination on the merits. It follows that it cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the complaint under this head inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints concerning the procedure for freeing for adoption and his complaints concerning the removal of the children and the decision to free the children for adoption;

Declares the remainder of the application inadmissible.

Michael O'Boyle Josep CASADEVALL 
 Registrar President

C. v. THE UNITED KINGDOM DECISION


C. v. THE UNITED KINGDOM DECISION