European Court of Human Rights

THIRD SECTION

 

DECISION

 

AS TO THE ADMISSIBILITY OF

 

Application no. 42455/98
by G.H. B.
against the United Kingdom

 

            The European Court of Human Rights (Third Section), sitting on 4 May 2000 as a Chamber composed of

 

            Mr   J.-P. Costa, President,

            Mr   W. Fuhrmann,

            Mr   P. Kūris,

            Mrs F. Tulkens,

            Mr   K. Jungwiert,

            Sir   Nicolas Bratza,

            Mr   K. Traja, judges,

and      Mrs S. Dollé, Section Registrar,

 

            Having regard to the above application introduced with the European Commission of Human Rights on 3 March 1998 and registered on 28 July 1998,

 

            Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

 

            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 1924 and living in Wokingham, Berkshire.

 

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

 

            Particular circumstances of the case

 

The applicant’s grand-daughter, H, was born in July 1985.

 

In August 1993, H’s mother (the applicant’s daughter, P), who lived in Tyneside, north-east England, contacted the local authorities because she was suffering from mental health problems and could not, at that time, care for H. In September 1993, H was placed with foster parents in Tyneside on a temporary basis. In July 1994, at a meeting of the local authority permanency panel attended by P, the decision was taken that, since P was still unable to care for H, a permanent placement should be found for her. In September 1994, H’s name was added to the Child Protection Register under the category “emotional abuse”. In October 1994, H moved to the south of England to live with her maternal aunt and uncle, who had applied to have H placed permanently with them. P initially opposed this plan but eventually, to avoid a care order, she agreed and, on 1 December 1994, a residence order was made in favour of P’s sister. However, this arrangement broke down and in February 1995 H went to live with the applicant and his wife on a temporary basis. In April 1995, H was placed with short-term foster parents in Berkshire. This was either her fifth or her seventh change of home in three years. She had contact with the applicant and his wife fortnightly, and staying contact with P in Tyneside.

 

In June 1995 H visited P, who was getting married. The day after the wedding, H and P had a disagreement about H’s sleeping arrangements. H wanted to stay with P, but P had arranged for H to stay with a friend. In the course of this argument, P telephoned the police and social services and asked that an emergency placement be found for H. The following day H returned to her foster parents. P declined to have contact with H until November 1995, when they had supervised contact, repeated in December 1995.

 

The local authority commenced care proceedings and on 20 July 1995 an interim care order was made. In her statement dated 22 September 1995, P did not oppose the local authority’s plan to find a long-term permanent placement for H in the south of England, although she did oppose adoption. The applicant and his wife did not support the idea of a long-term placement, and initially decided to apply for H to live with them. When they were refused legal aid to apply for a residence order, they decided to apply instead for a contact order. In January 1996 the local authority advanced a care plan in which it was proposed, for the first time, that H be placed with Mr and Mrs X, with a view to adoption. Mr and Mrs X indicated that they would be willing to allow post-adoption contact between H and her biological family.

 

The case came before His Honour Judge Kenny on 6 February 1996. At the hearing, counsel informed the judge that the parties had agreed to the making of the care order and an order for specified contact in favour of the applicant and his wife. No agreement was reached in respect of contact between H and her mother, since it was not certain whether it would be possible for P to have contact with H in the area where H would be living or at the applicant and his wife’s home.

 

However, since March or April 1996 the applicant and his wife have had no contact with H, or news as to her well-being, with the exception of what was said in court on 6 June 1997 (see below). The local authority applied to vary the order of 16 February 1996, since H was extremely reluctant to have contact with her mother or grandparents. There was a further hearing before Judge Kenny in October 1996. He ordered that there should be no contact until further order of the court and referred the matter to the High Court.

 

On 6 June 1997, the High Court considered a number of applications by the parties. P, who was represented by counsel, applied for the discharge of the order of 16 February 1996 and for a residence order in her favour or, in the alternative, a defined contact order. The applicant and his wife, acting in person, applied in support of P’s application or, in the alternative, if the court were unwilling to commit H to her mother’s care, for a residence order in their favour and, if H were not to live with them, for a defined contact order. The prospective adopters, Mr and Mrs X, applied to adopt H and opposed the attachment of any condition to the adoption order.

 

In giving judgment, the judge, who had spoken privately to H, stated:

 

“The principle of the paramountcy of H’s welfare must be applied ... . H is nearly 12 years old and her wishes, which I accept have been accurately and genuinely stated by her, do deserve to be given great weight, even if they are not, of course, conclusive. She has suffered significant harm in the past and in my judgment there is a risk, indeed the virtual certainty, of a traumatically adverse effect upon her if she is moved from her present home, where she has settled so well. ...

... I am satisfied that [H] wants very much indeed to be adopted so as to complete the process of integration into Mr and Mrs X’s family. For her, an explanation that she is to remain in their care in their capacity as long-term foster parents is to stop short of cementing the bond between her and them and of providing the total security which understandably, in the light of the past history, she craves.

She has a strong conviction that her natural family does not approve of her present placement, and she is right: the [applicant and his wife] are vehemently opposed to it ... .

In this case an order for direct contact is not viable at all. The child is resolute in her opposition to contact and the making of an order ... . [H] perceives any sort of nexus between herself and her natural family at this point of time to be threatening to the stability of her placement and she even fears that in some way the provision of a report might enable the natural family to discover her location or in some other way (as she puts it) hassle her. ...”

 

He therefore granted Mr and Mrs X’s application for an unconditional adoption order.

 

On 17 October 1997, after hearing the applicant and his wife in person, the Court of Appeal refused P and the applicant leave to appeal against the adoption order, and on 23 January 1998 the Court of Appeal refused leave to appeal to the House of Lords.

 

Relevant domestic law

 

The Children Act 1989 states, in section 1 (as relevant):

 

“(1)            When a court determines any question with respect to –

(a) the upbringing of a child; ...

the child’s welfare shall be the court’s paramount consideration. ...

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to –

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f)  how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available under this Act in the proceedings in question.

(4) The circumstances are that - ...

(a) the court is considering whether to make, vary or discharge [a care and supervision order].”

 

            The Adoption Act 1976 provides, in section 16 (as relevant):

 

“(1)            an adoption order shall not be made unless - ...

(b) in the case of each parent or guardian of the child the court is satisfied that – ...

(ii) his agreement to the making of the adoption order should be dispensed with on a ground specified in subsection (2)

(2) The grounds mentioned in subsection (1)(b)(ii) are that the parent or guardian - ...

(b) is withholding his consent unreasonably ... .”

 

COMPLAINTS

 

Under Article 8 of the Convention, the applicant complains, first, that the adoption order should not have been made and that H should have been allowed to stay with her birth family and, secondly and in the alternative, that he and his wife should be allowed to have some contact with H.

 

THE LAW

 

1. The applicant complains that the adoption order should not have been made and that H should have been allowed to stay with her birth family or, in the alternative, that he and his wife should be allowed to have some contact with H. He invokes Article 8 of the Convention, which provides:

 

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

 

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

 

The applicant maintains that H was always loved by her biological family, who never ill-treated her, either physically or mentally, and who want to have her live with them. In his contention she should not, therefore, have been adopted.

 

The Government submit that the adoption order was made in the best interests of the child, and complied with the views of the expert witness and with H’s own wishes. The court’s judgment did not prevent contact between H and her grandparents; the judge simply refrained from making an order that would have forced H to have such contact against her wishes.

 

The Court recalls that the expression “family life” in Article 8 § 1 is broad enough to include the ties between grandparents and grandchildren (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 21, § 45). In the present case, it notes that, until she went to live with her prospective adoptive parents in March or April 1996, H had regular contact with the applicant and his wife, including living with them on a temporary basis between February and April 1995. In these circumstances, the Court considers that the applicant and his wife established family ties with their grandchild and that Article 8 is therefore applicable (see also no. 12402/86, Price v. the United Kingdom, Commission’s decision of 9 March 1988, Decisions and Reports vol. 55, p. 224 at p. 234).

 

The Court further notes that, pursuant to the order made by consent on 6 February 1996, H was placed by the local authority with Mr and Mrs X. Since that time, the applicant has not enjoyed any contact with his grandchild. Moreover, on 6 June 1997 the High Court made an unconditional adoption order in favour of Mr and Mrs X, thus severing the legal ties between H and her biological family. There has, therefore, undoubtedly been an interference with the applicant’s family life (see the Söderbäck v. Sweden judgment of 28 October 1998, Reports of Judgments and Decisions, § 25). Such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”.

 

The Court is satisfied that the High Court made the adoption order “in accordance with the law” and in pursuit of the legitimate aim of protecting the rights and freedoms of the child. It remains to be considered whether this measure was “necessary in a democratic society”.

 

In answering this question, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify the impugned measure were relevant and sufficient. It will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. Consideration of what is in the best interests of the child is of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see the Johansen v. Norway judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 1003-1004, § 64).

 

With regard to the fairness of the decision-making process which led to the making of the unconditional adoption order on 6 June 1997, the Court notes that the applicant, his wife and P, the child’s mother, all had the opportunity to express their views both in writing and orally. P was represented by counsel and the applicant and his wife acted in person. In addition, the judge considered evidence from the guardian ad litem and a number of expert witnesses, and spoke in private to H, who was then aged 12. In the circumstances, there is nothing to suggest that the decision-making process leading to the making of the adoption order was unfair or failed to involve the applicant, his wife or daughter to a degree sufficient to provide them with the requisite protection of their interests (cf. the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 28-29, §§ 64-65). In addition, it is to be noted that, before deciding to refuse leave to appeal, the Court of Appeal heard the applicant and his wife in person. The Court does not, therefore, find that the procedure gave rise to a breach of Article 8.

 

As for the merits of the adoption order, the Court observes that H was first placed into voluntary care in August 1993. Her mother, P, did not feel capable of taking H back into her care at any time over the following three to four years, and indeed there were several periods when P refused even to have contact visits with her daughter. Efforts, supported by the local authority, to keep H within her biological family all broke down, so that H was forced to adapt to living in a series of different homes, which must inevitably have caused her to feel rejected and insecure. At the hearing on 6 February 1996, it was agreed by all the parties that H should go to live with Mr and Mrs X. with a view to her being adopted by them. By the time of the hearing in June 1997, she had settled down well with her new family, but still craved the added security which would come with adoption. In the light of the foregoing, the Court is satisfied that the making of the adoption order was based on reasons which were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8.

 

The Court notes that, despite the fact that the applicant and his family originally only agreed that H should go to live with Mr and Mrs X on the understanding that they would continue to enjoy contact with her on a regular basis, they have not seen or heard from her since March or April 1997. In October 1996 Judge Kenny granted the local authority’s application to vary the consent order by deleting the contact order, and in June 1997 the High Court refused to grant the applicant’s request for a contact order, or to place any other condition on the adoption.

 

The Court recalls that it is required to carry out a stricter scrutiny in respect of restrictions on parental access to children, since such restrictions risk destroying family ties completely (see the above-mentioned Johansen judgment, p. 1004, § 64). Measures which are so far-reaching as totally to deprive a parent of all family life with his or her child should only be applied in exceptional circumstances and can be justified only by an overriding requirement pertaining to the child’s best interests (ibid., pp. 1008-1009, § 78).

 

The Court observes, however, that the applicant in the present case is the grandfather, and not the parent, of the child in care. The relationship between grandparents and grandchildren by its very nature generally calls for a lesser degree of protection than that between natural parents and their children (see the above-mentioned Price decision at p. 237). Moreover, it would appear that the decision to break off contact with her biological family was taken by H herself who, having suffered a history of numerous changes of home and knowing of her biological family’s opposition to her adoption, may have feared that contact with them would in some way undermine the stability of her relationship with her adoptive parents. Given that H was by then 12 years old, and taking into account the fact that there will be nothing to prevent her resuming contact with her natural family at any time in the future if she so desires, the Court considers that the domestic courts were justified in giving weight to the child’s own views as to whether contact would be in her best interests (see the Bronda v. Italy judgment of 9 June 1998, Reports 1998-IV, § 62). Against the above background, to have ordered H, against her wishes, to remain in contact with the applicant or his family, would have constituted a failure properly to respect the child’s own rights under Article 8.

 

In conclusion, the Court considers this application to be manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and it accordingly rejects it pursuant to Article 35 § 4.

 

For these reasons, the Court, unanimously,

 

DECLARES THE APPLICATION INADMISSIBLE.

 

 

 

 

             S. Dollé                                                                                                  J.-P. Costa

            Registrar                                                                                                  President