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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> H. v. THE UNITED KINGDOM (ARTICLE 50) - 9580/81 [1988] ECHR 9 (9 June 1988)
URL: http://www.bailii.org/eu/cases/ECHR/1988/9.html
Cite as: [1988] ECHR 9, (1991) 13 EHRR 449
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In the case of H v. the United Kingdom*,
_______________
* Note by the Registrar: The case is numbered 3/1986/101/149. The
second figure indicates the year in which the case was referred to the
Court and the first figure its place on the list of cases referred in
that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
_______________
The European Court of Human Rights, taking its decision in plenary
session pursuant to Rule 50 of the Rules of Court and composed of the
following judges:
Mr. R. Ryssdal, President,
Mr. J. Cremona,
Mr. Thór Vilhjálmsson,
Mr. G. Lagergren,
Mr. F. Gölcüklü,
Mr. F. Matscher,
Mr. J. Pinheiro Farinha,
Mr. L.-E. Pettiti,
Mr. B. Walsh,
Sir Vincent Evans,
Mr. R. Macdonald,
Mr. C. Russo,
Mr. R. Bernhardt,
Mr. J. Gersing,
Mr. A. Spielmann,
Mr. J. De Meyer,
Mr. N. Valticos,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 24 March and 28 May 1988,
Delivers the following judgment, which was adopted on the
last-mentioned date, on the application in the present case of
Article 50 (art. 50) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention"):
PROCEDURE AND FACTS
1. The case was referred to the Court on 28 January 1986 by the
European Commission of Human Rights ("the Commission"). It originated
in an application (no. 9580/81) against the United Kingdom of Great
Britain and Northern Ireland lodged with the Commission in 1981 by a
British citizen.
2. On 23 October 1986, the Chamber constituted to examine the
case relinquished jurisdiction in favour of the plenary Court (Rule 50
of the Rules of Court). By judgment of 8 July 1987 ("the principal
judgment"), the plenary Court held that the applicant had been the
victim of breaches of Articles 6 § 1 and 8 (art. 6-1, art. 8) of the
Convention by reason of the length of proceedings instituted by her
regarding her access to her child, a ward of court committed to the
care of a local authority (Series A no. 120-B, paragraphs 67-90 of the
reasons and points 2 and 3 of the operative provisions, pp. 58-64).
The only outstanding matter to be settled is the question of the
application of Article 50 (art. 50) in the present case. Accordingly,
as regards the facts, reference should be made to paragraphs 8-62 of
the principal judgment (ibid., pp. 47-56).
3. At the Court's hearing on 25-26 November 1986, the Government
of the United Kingdom ("the Government") reserved their position on
the applicant's claim for just satisfaction, which claim had not then
been quantified.
In the principal judgment, the Court therefore reserved the whole of
this question; it invited (a) the applicant to submit, within the next
two months, full written particulars of her claim; and (b) the
Government to submit, within two months of receipt of those
particulars, their written comments thereon and, in particular, to
notify the Court of any agreement reached between them and the
applicant (paragraphs 91-92 of the reasons and point 4 of the
operative provisions, pp. 64-65).
4. In accordance with the foregoing invitation and the
President's directions, there were filed at the registry:
- on 8 September 1987, memorial of the applicant;
- on 21 December 1987, memorial of the Government;
- on 21 January 1988, observations of the Delegate of the Commission.
5. The Government's memorial and letters subsequently addressed
to the registry by the Government and the applicant gave details of a
settlement they had reached as regards the latter's claim in respect
of costs and expenses referable to the proceedings before the
Commission and the Court. She would accept, in full and final
satisfaction of that claim, payment to her by the Government of
£5,229.05, less the amounts received by her from the Council of Europe
by way of legal aid.
6. Having consulted the Agent of the Government, the Delegate of
the Commission and the representative of the applicant, the Court
decided, on 24 March 1988, that there was no need to hold a hearing.
AS TO THE LAW
7. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
The applicant claimed under this provision compensation for damage and
reimbursement of costs and expenses incurred in the proceedings before
the Convention institutions.
A. Costs and expenses
8. Since delivering the principal judgment, the Court has been
informed of a friendly settlement concluded between the Government and
the applicant, concerning the claim for costs and expenses (see
paragraph 5 above). Having regard to the terms of the settlement and
to the absence of any objection on the part of the Commission's
Delegate, the Court finds that the agreement is of an "equitable
nature", within the meaning of Rule 53 § 4 of the Rules of Court.
Accordingly, the Court takes note of the agreement and considers it
appropriate to strike the case out of the list as far as that claim is
concerned.
B. Damage
9. (a) The applicant claimed compensation, exemplary in amount,
of £500,000 for the violations of Articles 6 § 1 and 8 (art. 6-1,
art. 8) of the Convention found by the Court in the principal
judgment. Such compensation was to cover various items, including the
permanent loss of her relationship with her daughter A; the
deprivation of the latter's love, companionship and support; her
inability to have another child; the exacerbation of her illness;
strain and distress occasioned by the nature and length of the
litigation in England; and loss of earnings by her husband, who had
allegedly been obliged to relinquish his employment in order to care
for her.
(b) The Government argued that although certain of the alleged items
of damage might have been the consequence of the applicant's loss of
and lack of access to the child, they were not attributable to the
breaches of Articles 6 § 1 and 8 (art. 6-1, art. 8), since there was
no evidence that the outcome of the proceedings instituted by her with
regard to access would have been different even if they had been
concluded within a "reasonable time". Consequently, no causal link had
been demonstrated between the violations of the Convention found by
the Court and any damage alleged by the applicant.
The Government further contended that, having regard to the facts of
the case and in particular to the applicant's history, there was no
evidence that, had the delays in those proceedings not occurred, the
opportunities afforded to her therein could have genuinely benefited
her in practical terms. Accordingly, she had not suffered a "loss of
real opportunities", as that expression was understood in the Court's
case-law, and the findings of violation of Articles 6 § 1 and 8
(art. 6-1, art. 8) therefore constituted sufficient just satisfaction
for the purposes of Article 50 (art. 50). If, however, the Court
should take a different view on this point, then - the Government
submitted in the alternative - any sum awarded to the applicant
should, in all the circumstances of the case, not exceed £5,000.
(c) The Delegate of the Commission considered that it was not
possible to establish with any degree of certainty whether the
relevant decisions would have been different if the breaches of
Articles 6 § 1 and 8 (art. 6-1, art. 8) had not occurred. In his
view, the applicant should nevertheless receive a "reasonable amount"
of compensation for non-pecuniary loss, which amount should reflect
the serious nature of the issues involved.
10. The Court would recall in the first place that the principal
judgment was in no way concerned with the justification for such
matters as the taking into public care or the adoption of the child or
the restriction or termination of the applicant's access to her.
Violations of Articles 6 § 1 and 8 (art. 6-1, art. 8) were found
solely on account of the duration of the proceedings in question (see
the principal judgment, pp. 59-63, §§ 70-86, and pp. 63-64, §§ 87-90).
Whilst the applicant was thus the victim of a deficiency of a
procedural nature, it was all the same a deficiency that was
intimately connected with an interference with one of the most
fundamental of rights, namely that of respect for family life.
11. The Court agrees with the Government that it is not
established that the applicant's inability to have another child and
the exacerbation of her illness were due to the violations of the
Convention. The same applies to the claim in respect of loss of
earnings by her husband, which has not been pursued in any detail or
even quantified.
12. As regards the applicant's loss of her relationship with her
daughter and the deprivation of the latter's love, companionship and
support, which she attributed to the breaches of the Convention, it
cannot be affirmed with certainty that these matters would not have
occurred if the relevant proceedings had been terminated more
expeditiously. Indeed, it is noteworthy in this respect, as the
Government pointed out, that in his report the Local Ombudsman
expressed the opinion that it was "very unlikely indeed that the
decision would have been different even if the [local authority] had
acted more quickly" (see the principal judgment, p. 55, § 31).
13. On the other hand, the Court does not feel able to conclude
that, as the Government submitted, a speedier conclusion of the
proceedings in question could not have genuinely benefited the
applicant in practical terms.
It is true that she allowed some seventeen months to elapse after the
termination of her access to A (June 1977) before seeking its
re-establishment by the High Court (November 1978). However, not only
did she have a valid reason for this delay - namely, her desire to
show that her health had improved and that she had a stable home - but
also in November 1978 the child had not yet been placed for adoption,
so that the process of "bonding" between her and her foster parents
had not then begun (see the principal judgment, p. 50, §§ 18-19).
What is more problematical is that, of the various factors that
contributed to the length of the proceedings, it was only the delay on
the part of the local authority in filing its evidence which the
European Court found to be open to criticism (ibid., p. 62, § 84).
However, but for this delay - without which that evidence would have
been filed before A was placed for adoption in March 1979 (ibid.,
pp. 50-51, §§ 18-21) -, the subsequent proceedings might have
developed differently and been concluded earlier. The period during
which "bonding" between A and her foster parents had been taking place
would thus have been considerably reduced. The High Court, which had
to base its decision on the facts as at the date of its hearing, took
the view that the applicant's case had been "seriously prejudiced" by
the delay in question (ibid., p. 53, § 28). And, notwithstanding the
applicant's earlier history, on which the Government relied, a
particular feature of this case was the steady improvement in her
condition following her meeting Mr. H in May 1977 and her subsequent
marriage to him in October 1977 (ibid., pp. 49, 50 and 53, §§ 14, 17
and 28). In these circumstances, it cannot, in the Court's opinion,
be excluded that a prompter conclusion of the proceedings might have
resulted in a different outcome.
To this extent the applicant may therefore be said to have suffered
some loss of real opportunities, warranting monetary compensation.
14. In addition to the foregoing, the fact that the proceedings
instituted by the applicant were drawn out for as long as two years
and seven months, and that she saw her chances of success becoming
more remote as time went by, must, in the Court's view, have left her
with a feeling of frustration and helplessness, similarly warranting
monetary compensation.
15. None of the factors cited in paragraphs 13 and 14 above lends
itself to precise quantification. Making an assessment on an
equitable basis, as is required by Article 50 (art. 50), the Court
awards the applicant £12,000 for damage sustained.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to strike the case out of the list as far as the
applicant's claim for costs and expenses is concerned;
2. Holds that the United Kingdom is to pay to the applicant the sum
of £12,000 (twelve thousand pounds) for non-pecuniary damage;
3. Rejects the remainder of the claim for just satisfaction.
Done in English and in French, and notified in writing on 9 June 1988
pursuant to Rule 54 § 2, second sub-paragraph, of the Rules of Court.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar