In
the case of McMichael v. the United Kingdom,
The
European Court of Human Rights, sitting, in accordance with Article
43 (art. 43) of the Convention for the Protection of Human Rights
and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A,
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr C. Russo,
Mr A. Spielmann,
Mrs E. Palm,
Mr I. Foighel,
Sir John Freeland,
and
also of Mr H. Petzold,
Registrar,
Having
deliberated in private on 22 September 1994 and 25 January 1995,
Delivers
the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case was referred to the Court on 10 December 1993 by the
European Commission of Human Rights ("the Commission"),
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated in
an application (no. 16424/90) against the United Kingdom of Great
Britain and Northern Ireland lodged with the Commission under
Article 25 (art. 25) on 11 October 1989 by two British citizens, Mr
Antony and Mrs Margaret McMichael.
The
Commission’s request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the United Kingdom
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Articles 6 para. 1, 8 and 14 (art.
6-1, art. 8, art. 14) of the Convention.
In response to the enquiry made in accordance with Rule 33 para. 3
(d) of Rules of Court A, the applicants stated that they wished to
take part in the proceedings and designated the lawyer who would
represent them (Rule 30).
The Chamber to be constituted included ex officio Sir John Freeland,
the elected judge of British nationality (Article 43 of the
Convention) (art. 43), and Mr R. Ryssdal, the President of the Court
(Rule 21 para. 3 (b)). On 28 January 1994, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr
R. Macdonald, Mr C. Russo, Mr A. Spielmann, Mrs E. Palm and Mr I.
Foighel (Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43).
As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Government of the
United Kingdom ("the Government"), the applicants’
lawyer and the Delegate of the Commission on the organisation of the
proceedings (Rules 37 para. 1 and 38). Pursuant to the orders made
in consequence, the Registrar received the applicants’ and the
Government’s memorials on 2 and 16 May 1994 respectively, a
supplementary memorial from the applicants on 2 August 1994 and
comments from the applicants in connection with the application of
Article 50 (art. 50) of the Convention on 13 September 1994. Revised
versions of the applicants’ memorial and supplementary
memorial were filed at the registry on 31 August 1994. On 22 August
the Secretary to the Commission informed the Registrar that the
Delegate would be submitting her observations at the hearing.
In accordance with the President’s decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on 20
September 1994. The Court had held a preparatory meeting beforehand.
There
appeared before the Court:
-
for the Government
Mrs S.J. Dickson, Foreign and Commonwealth Office, Agent,
Mr T.C. Dawson, QC, Solicitor General for Scotland,
Mr R. Reed, Advocate, Counsel,
Mr J.L. Jamieson, Solicitor, Scottish Office,
Mr D. MacNab, Administrator, Scottish Office, Advisers;
-
for the Commission
Mrs G.H. Thune, Delegate;
-
for the applicants
Mr P.T. McCann, Solicitor, Counsel,
Mr T. Ruddy, Trainee Solicitor, Adviser.
The
Court heard addresses by Mrs Thune, Mr McCann and Mr Dawson as well
as replies to its questions.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
A. Events up to and during 1987
The first applicant, Antony McMichael, and the second applicant,
Margaret McMichael, live in Glasgow. They were born in 1938 and 1954
respectively and were married on 24 April 1990.
On 29 November 1987 the second applicant gave birth to a son, A. The
first applicant, who was then known as Antony Dench, and the second
applicant, were living together, although at that time each had
their own home. At the time the second applicant expressly denied
that the first applicant was A.’s father. The child’s
father was not identified on the birth certificate.
The second applicant had a history of severe and recurrent mental
illness, diagnosed as manic depressive psychosis. She had first been
ill in or about 1973 and had thereafter been compulsorily admitted
to psychiatric hospitals on a number of occasions. While she and A.
were still in hospital after the birth, Dr R., the consultant
psychiatrist who had treated her since 1985, found that she was
suffering from a recurrence of her mental illness. He considered
that if she were to go home with A., the child would be at risk. As
a result, on 11 December 1987 the social work department of
Strathclyde Regional Council ("the Council") - this being
the local government body having statutory responsibilities relating
to the welfare of children in Glasgow and the surrounding area -
applied for and were granted an order known as a "place-of-safety
order", in accordance with section 37 (2) of the Social Work
(Scotland) Act 1968 ("the 1968 Act") (see paragraph 50
below for an explanation as to such orders). The effect of this
order was to authorise the Council to keep A. in the hospital for a
period not exceeding seven days. The second applicant was informed
and advised to seek legal advice.
The Reporter to the Children’s Panel for Strathclyde Region,
being of the view that A. might be in need of compulsory measures of
care, arranged for a "children’s hearing" to be
convened, in accordance with section 37 (4) of the 1968 Act (as to
the functions of the Reporter and the nature of children’s
hearings, see paragraphs 46, 47, 50 and 51 below). The ground of
referral of the case to the children’s hearing was that "a
lack of parental care [was] likely to cause [A.] unnecessary
suffering or seriously to impair his health or development",
this being one of the statutory grounds provided for under section
32 of the 1968 Act (see paragraph 48 below). In support of the
ground of referral, the following statement of facts was given:
"(1) ...
(2) That the parent suffers from a major psychiatric
illness.
(3) That the parent refuses to take medication to
stabilise her condition when not an in-patient at psychiatric
hospital.
(4) That the parent has required to be admitted to
psychiatric hospital on emergency basis ... on 5 June 1986, 5
December 1986 and 31 December 1986.
(5) That due to her psychiatric condition the parent
is unlikely to be able to care adequately for the child."
At the children’s hearing on 17 December 1987 the chairman
explained to the second applicant the reasons stated by the Reporter
for the referral of the case. She indicated that she did not accept
the ground of referral and, in particular, disputed paragraphs 2, 3
and 5 of the statement of facts. The children’s hearing
accordingly instructed the Reporter to apply to the Sheriff Court
(the local court) for a finding as to whether the ground of referral
was established, in accordance with section 42 of the 1968 Act (see
paragraph 54 below).
The
children’s hearing also issued a warrant under section 37 (4)
of the 1968 Act for A.’s continued detention in a place of
safety until 6 January 1988 (see paragraph 50 below). A subsequent
warrant was granted by a further children’s hearing on 5
January 1988.
On 23 December 1987 A. was discharged from hospital and taken to
foster parents at Greenock, twenty-four miles from Glasgow. He has
remained with them since then. On the same day the second applicant
discharged herself from hospital. Arrangements were made for her to
be taken three times a week for access visits to A. at the foster
home, under the supervision of the social work department.
The
first applicant, who also has a history of mental illness, was not
included at this stage in the access arrangements. The principal
reason for this was that the second applicant continued to deny that
he was A.’s father and he did not himself make any claim to be
the father. Other reasons were his aggressive and threatening
attitude and his refusal to give information about his background.
B. Events during 1988
The second applicant complained about the placement in Greenock and
inadequacy of access arrangements. At first she accepted the
exclusion of the first applicant, but she and the first applicant
subsequently complained about that also. She failed to appear for
four of the access visits between 31 December 1987 and 18 January
1988.
On 21 January 1988 the Reporter’s application for a finding
on the ground of referral was heard in the Glasgow Sheriff Court.
The second applicant was present and represented by a solicitor. The
first applicant also attended. The Reporter led oral evidence from
medical, nursery and social work witnesses, including Dr R. The
first and second applicants both gave evidence. There was no
documentary evidence before the court other than the ground of
referral and statement of facts (referred to above in paragraph 9).
At the conclusion of the hearing the Sheriff found the ground of
referral established. He remitted the case to the Reporter for him
to arrange a children’s hearing to dispose of the case. The
second applicant did not appeal to the Court of Session (the supreme
civil court in Scotland).
On
an application by the Reporter and after hearing submissions on
behalf of the Reporter and the second applicant, the Sheriff also
granted a warrant for A.’s continued detention in a place of
safety for a further period not exceeding twenty-one days.
On 27 January 1988, the social work department held a meeting known
as a "child care review", to consider the case. Both
applicants were present. The consultant psychiatrist, Dr R., advised
that the second applicant was seriously mentally ill but was
unwilling to accept treatment. It was decided that access should be
terminated, though this decision would be reviewed if the second
applicant’s mental state improved. The first applicant had
also requested access at the meeting, claiming for the first time
that he was A.’s father. Access was refused since the second
applicant continued to maintain that he was not the father. The
social work department also took into account his aggressive and
threatening attitude and his continuing refusal to provide
information about himself.
On 4 February 1988 a children’s hearing was held to consider
the need for compulsory measures of care for A. The second applicant
attended, with the first applicant as her representative. The
hearing had a number of documents before it, including a report of
28 January 1988 on the child compiled by the social work department,
reviewing the history of the case and proposing that A. continue to
reside in the foster home. In accordance with the relevant
procedural rules (as contained in the Children’s Hearings
(Scotland) Rules 1986 - "the 1986 Rules"; see paragraph 57
below), these documents were not produced to the applicants, but the
chairman informed them of their substance.
The
children’s hearing decided that A. did need compulsory
measures of care. They therefore made a supervision requirement
under section 44 (1) (a) of the 1968 Act, placing A. under the
supervision of the Council subject to the condition that he reside
with the foster parents in Greenock (as to supervision requirements,
see paragraphs 58 to 60 below). The decision was based, inter alia,
on the mental health of both applicants, their aggressive and
hostile behaviour and the second applicant’s refusal to seek
psychiatric help and treatment. This decision did not make any
provision as to access. In such circumstances the presumption is
that parents will be given reasonable access, subject to section 20
(1) of the 1968 Act which empowers a local authority to deny access
where necessary for the child’s welfare.
On 6 February 1988 the second applicant was admitted to a
psychiatric hospital, initially as a voluntary patient and, as from
10 February, on an involuntary basis. She returned home in June
1988.
The second applicant (while in psychiatric hospital) appealed to
the Sheriff Court against the decision of the children’s
hearing. All the documents that had been before the children’s
hearing were lodged with the Sheriff Court. It would appear that, in
accordance with the normal procedure (as to which, see paragraph 61
below), they were not made available to the second applicant. She
attended the appeal hearing on 29 February 1988, accompanied by two
nurses. She was obviously under heavy sedation and was
unrepresented. Following discussion, the Sheriff enquired whether
she would prefer to ask for a review by a children’s hearing
of the supervision requirement, rather than pursue her appeal. The
second applicant agreed. The appeal was accordingly held to have
been abandoned.
A review was held by the social work department on 27 April 1988.
Both applicants attended, the second applicant having been allowed
home on leave from the psychiatric hospital. In view of the second
applicant’s improved mental state, it was decided to grant her
supervised access to A. By this time, the second applicant had
agreed that the first applicant was A.’s father. On 18
February 1988 his name had been added to the birth certificate. This
did not, however, give him parental rights (as to which, see
paragraph 43 below). At the review, the Council decided not to grant
him access until he gave them information about his background,
which he had so far refused to do.
Visits
by the second applicant to A. at the foster home, under the
supervision of a social worker, began on 26 May 1988 and continued
until September 1988.
On 24 August 1988, solicitors acting for the first applicant
applied to the Scottish Legal Aid Board for legal aid for an action
against the Council in the Court of Session to obtain custody of A.
or, failing that, access to him. The Board refused legal aid on the
basis that it was unreasonable that he should receive legal aid in
the particular circumstances and that it had not been shown that
there was a probable cause of action. Counsel then advised the first
applicant that the proposed action was incompetent and that it would
be appropriate to pursue the question of access by seeking a
children’s hearing to review the supervision requirement.
On 20 September 1988 the social work department held a further
child care review. Neither applicant attended but the second
applicant was represented by a clergyman. The department had
previously held meetings with the first applicant to obtain
background information about him and, with his consent, made
inquiries with his doctor and the police. It was decided to allow
both applicants access of three supervised visits per week at a
special centre and to give assistance to them in learning parenting
skills. The position was to be reassessed after three months.
Access
at the centre began on 4 October 1988.
On 13 October 1988 the children’s hearing held a review of
the supervision requirement. The second applicant was present and
the first applicant attended as her representative. The hearing had
before it a report by the social work department dated 20 September
1988, updating information on A. The report also contained a
statement that the second applicant was refusing to take the
medication prescribed for her, an account of the proposed
arrangements for access and a recommendation that the supervision
requirement should continue pending assessment of the proposed
access for the next three months. In accordance with the relevant
procedural rules (see paragraph 57 below), this report was not
disclosed to the applicants, though the chairman informed them of
its substance. The applicants had submitted a statement maintaining
that in their view the ground of referral was not justified, as they
had never had an opportunity to show that they could care for A.
The
children’s hearing decided to continue the supervision
requirement and to approve the access proposals. The hearing
considered that only time would show if A.’s return to the
care of the applicants was a viable prospect and that the second
applicant’s mental health should be closely monitored.
The
second applicant did not appeal to the Sheriff Court.
Between 4 October and 19 December 1988, the applicants made
approximately twenty-three access visits to A. The social workers
did not consider the visits to be a success. In reports dated 22
November 1988 by a health visitor and 23 November by a medical
officer, it was stated that the applicants frequently argued before
A. and displayed aggression to the staff, with the result that they
were excluded from two child care centres. They appeared to be
unable to accept or follow advice on child care.
On 19 December 1988 a child care review was held, at which the
applicants were present. The meeting noted that no obvious progress
had been made in the applicants’ ability to care for A. It was
decided to terminate access visits in view of concern about the
long-term effects on A. if access were to continue without any real
prospect of his returning to the care of his natural parents. It was
also decided to investigate the option of freeing A. for adoption.
The applicants appealed internally to the District Manager of Social
Services, who confirmed the decision by letter of 28 December 1988
in which he recommended them to obtain legal advice.
C. Events during 1989
Following a request by the second applicant, a children’s
hearing carried out a review of the supervision requirement on 20
June 1989. The second applicant was present with the first applicant
as her representative. The Reporter provided the hearing with a
further report by the social work department, updating the
information on A. It described the problems experienced during the
access period, and reported that A. was happy and developing well in
his foster home and that prospective adopters were being sought.
Also presented to the hearing were the documents that had been
before previous hearings.
The
applicants asked for access to be re-established. The hearing
considered that there might be a conflict of interest between the
second applicant and A. They therefore adjourned the hearing to
allow for the appointment of a "safeguarder", that is an
independent person to represent the interests of the child (as to
which, see paragraph 53 below).
The safeguarder, once appointed, interviewed the applicants, the
social workers, the foster parents and the police. His report of 18
August 1989 stated, amongst other things, that A. was being
adequately cared for by the foster parents and that it was desirable
that the second applicant should obtain a doctor’s opinion on
her present psychiatric condition.
The adjourned children’s hearing reconvened on 5 September
1989. The applicants were present, the second applicant being
represented by a solicitor. In accordance with the relevant
procedural rules (see paragraph 57 below), the safeguarder’s
report and the other documents before the hearing were not disclosed
to the applicants, but the chairman informed them of the substance.
Also before the hearing were written submissions by the applicants
stating their ability to care for A. and the unfairness of judging
them on the basis of three months’ intensive access. The
safeguarder attended the hearing and confirmed his view that A.’s
best interests would be served by his remaining in care.
The
hearing concluded that the supervision requirement should continue
and that there was nothing in what they had heard to convince them
that they should grant access. They did not take up a suggestion by
the second applicant’s solicitor to grant a further
adjournment in order to obtain an independent psychiatric report on
the second applicant.
The second applicant appealed to the Sheriff Court on the grounds
that:
(a)
the applicants had not been informed of the substance of the
documents produced at the hearing;
(b)
the refusal of access was based on inadequate information, in
particular the lack of up-to-date information as to the second
applicant’s mental health; and
(c)
the refusal to adjourn the hearing for the purpose of obtaining a
psychiatric report on the second applicant’s current mental
health was manifestly unreasonable.
In
the event ground (a) was withdrawn. At the appeal hearing on 4
October 1989 the Sheriff decided that it would have been appropriate
to obtain a psychiatric report. He therefore allowed the appeal and
remitted the case to the children’s hearing.
In the meantime, a psychiatric report, dated 29 September 1989, had
been produced at the request of the second applicant’s
solicitors. This report stated that the second applicant suffered
from a recurrent mental illness, which was however in remission and
which, if it recurred, would respond satisfactorily to treatment as
in the past. The psychiatrist considered that access should be
re-established and that A. could eventually be returned to the
applicants.
A children’s hearing was held on 12 December 1989 to
reconsider the case, as directed by the Sheriff (see paragraph 27
above). The hearing was adjourned at the request of the solicitor
representing the second applicant, in order to allow the
psychiatrist to submit a fuller report.
D. Events during 1990
A children’s hearing was held on 9 January 1990, but neither
applicant attended or was represented. The hearing was told that the
second applicant had been declared insane and admitted to a
psychiatric hospital.
A
further hearing was held on 18 January 1990. Neither applicant
attended or was represented. The hearing concluded that the second
applicant was not well enough to have access to A. and that they
could not see any future for A. with her. A condition was added to
the supervision requirement that there be no access by the second
applicant. The second applicant did not appeal to the Sheriff Court.
On 1 February 1990 the Council lodged with the Sheriff Court a
petition to free A. for adoption.
The applicants were married on 24 April 1990. The first applicant
thereby obtained parental rights in respect of A. (as to which, see
paragraphs 42 and 43 below).
The petition was heard between 18 June 1990 and 27 July 1990. The
applicants, as parents, refused to give their consent to adoption.
They were present at the hearing. The first applicant conducted his
own case, whereas the second applicant was represented by a
solicitor. The documentary evidence before the court had been
disclosed to the applicants. Witnesses were heard. The applicants
had the opportunity to cross-examine all witnesses led by the
Council, as well as to lead their own evidence.
The Sheriff delivered his judgment on 14 October 1990, the second
applicant having in the meantime been re-admitted to hospital on 12
August. He decided that the applicants were withholding their
consent unreasonably and that, accordingly, their consent should be
dispensed with. He therefore granted the order freeing A. for
adoption. His judgment contained a detailed description of the
second applicant’s history of mental illness and of the
problems that had occurred during access visits. His findings
included the following:
"Mrs McMichael is incapable of having permanent
care of the child [A.] because of the severity and unpredictability
of her illness. When she is actively ill it would be unsafe for the
child to be in her care.
...
The natural parents have no understanding of what is
meant by loving and caring for a child and have demonstrated an
inability either to learn such skills, or to want to learn them.
It is in the interests of the child’s welfare
that he be freed for adoption. The natural parents are both
emotionally and intellectually incapable of giving the child a
secure and stable environment. If he were in their care he would be
liable to suffer emotional deprivation and, because of their
inability physically to care for him, could be in situations of
danger."
The
Sheriff concluded:
"In my view, there is no escaping from the
conclusion that both these parents are withholding their agreement
unreasonably. They are withholding their agreement because they are
not parents who have begun to demonstrate their capacity to have
custody. Mrs McMichael suffers from a grave mental illness which may
at any time, unless appropriate medical treatment is taken,
incapacitate her from looking after, not only a child, but herself.
Even when her illness is not to the degree at which hospitalisation
is required, she has been demonstrated as incapable of the most
elementary physical and emotional capacities in parenting. The one
capacity she does have, I accept, is the desire to be a parent, to
have the child, but the accomplishment of that ambition is, I fear,
demonstrated to be beyond her. The incapacity of the father to
behave normally as a parent to the child is established by the
evidence of Mrs [K. (the health visitor)] and Mrs [M. (from the
social work department)], whose testimonies support the findings in
fact I have made relating to access visits ..."
In December 1990 the applicants appealed to the Court of Session
against the Sheriff’s decision.
E. Events during 1991 and 1992
The applicants were granted legal aid. Counsel and solicitors’
advice was that an appeal had no prospects of success at all and
should be abandoned. The applicants did not accept this advice and
continued with the appeal, without legal assistance.
The appeal was dismissed by the Court of Session on 1 November
1991. The court held that the Sheriff was justified in concluding
that, because of the mental health of the second applicant and the
first and second applicants’ lack of understanding how to care
properly for a child, it would have been contrary to the best
interests of A. to return him to the applicants’ custody.
In the meantime, on 18 July 1991, a children’s hearing had
decided that the supervision requirement should continue. A similar
decision was made subsequently by another children’s hearing
on 9 June 1992.
F. Events during 1993
At a children’s hearing held on 4 May 1993 it was announced
that the foster parents with whom A. had been living since 23
December 1987 intended to adopt him. The children’s hearing
decided that the supervision requirement should continue, with a
condition that A. should reside with the foster parents.
On 25 May 1993 the application by the foster parents to adopt A.
was granted by the Sheriff. The effect of the adoption order was to
vest in the adoptive parents all parental rights and duties relating
to A.
On 21 September 1993 a children’s hearing decided that the
supervision requirement should be terminated, as A. had been adopted
and all reports on his welfare were favourable.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Rights of parents
Under Scots law the nature of the rights enjoyed by parents in
relation to their children is governed by the common law. In respect
of girls under 12 and boys under 14, parents enjoy, inter alia,
(a)
the right of tutory, which can be described as the right to
administer the child’s property and to act legally on behalf
of the child;
(b)
the right of custody, which can be described as the right of the
parent to have the child living with him or her, or otherwise to
negotiate the child’s residence and to control the child’s
day-to-day upbringing;
(c)
the right to access.
The position as to the persons who may exercise parental rights is
regulated by the Law Reform (Parent and Child) (Scotland) Act 1986
("the 1986 Act"). In general the 1986 Act abolished the
legal distinctions between children born in and out of wedlock.
However, in relation to parental rights a distinction persists, as
appears from section 2 (1) which provides:
"(a) a child’s mother shall have parental
rights whether or not she is or has been married to the child’s
father;
(b) a child’s father shall have parental rights
only if he is married to the child’s mother or was married to
her at the time of the child’s conception or subsequently."
Section
2 (1) is in turn subject to section 3, which enables any person
claiming an interest to make an application to court for an order
relating to parental rights (subsection (1)). The court, which is
bound to regard the welfare of the child as the paramount
consideration, may not make such an order unless satisfied that to
do so would be in the interests of the child (subsection (2)). The
natural father of a child born out of wedlock (who is not
automatically entitled under section 2 (1)) may obtain parental
rights (including tutory, custody or access) under this procedure by
applying to either the Court of Session or the local Sheriff Court.
Where the mother consents, the matter will be dealt with
expeditiously.
B. Compulsory measures of care
The arrangements in Scotland for dealing with children who may need
compulsory measures of care are set out in Part III of the 1968 Act,
as supplemented by subordinate legislation and, in particular, the
1986 Rules governing conduct of children’s hearings.
1. The institutional framework
(a) The local authority
Under section 20 of the 1968 Act the local authority (in the
present case, Strathclyde Regional Council) has a general
responsibility for promoting social welfare in its area. More
specifically, it has the duty to inquire into and tell the Reporter
of cases of children who may need compulsory measures of care, to
provide reports on children for children’s hearings and to
implement supervision requirements imposed by children’s
hearings.
(b) The Reporter
The Reporter is appointed under section 36 of the 1968 Act by the
local authority. Though employed by the local authority, he is
expected to exercise his judgment independently and is separate from
the local authority’s social work department. He may not be
removed from office without the consent of the Secretary of State.
His duties include deciding whether a case should be referred to a
children’s hearing and arranging such hearings when they are
necessary.
(c) Children’s hearings
Children’s hearings decide whether a child requires
compulsory measures of care and, if so, which measures are
appropriate. Pursuant to section 34 of the 1968 Act, a children’s
hearing consists of a chairman and two other members drawn from the
children’s panel. The Secretary of State appoints a children’s
panel for each local authority area. The members hold office for
such period as the Secretary of State specifies; they may be removed
by him at any time, but only with the consent of the most senior
judge in Scotland, the Lord President of the Court of Session
(section 33 of and Schedule 3 to the 1968 Act, and section 7 (1) of
the Tribunals and Enquiries Act 1992). In practice members are
initially appointed for a period of two years and are then usually
reappointed for a further period, normally of five years. They would
be removed only in wholly exceptional circumstances.
Under
domestic law a children’s hearing is regarded as a tribunal.
It comes under the statutory system applicable to tribunals in
Scotland (paragraph 61 of Schedule 1 to the Tribunals and Inquiries
Act 1992). Its members are considered to enjoy judicial immunity
from proceedings for wrongful detention and defamation, in the same
way as judges of the lower courts.
The children’s hearing may only consider the case of a child
where it has been referred to them by the Reporter and where certain
"grounds of referral" are established, either by agreement
with the child and his parent or by a decision of the Sheriff Court.
The grounds, as set out in section 32 of the 1968 Act, include the
following:
"(c) lack of parental care is likely to cause him
unnecessary suffering or seriously to impair his health or
development."
Thus,
in the absence of agreement, a decision by a judge on the grounds of
referral, after hearing appropriate evidence, is essential before
the children’s hearing can consider the case.
(d) The Sheriff
The Sheriff, that is any judge of the local Sheriff Court, has the
following main roles in the process:
(a)
to grant a warrant for continued detention of a child in a place of
safety, pending a hearing, in certain circumstances;
(b)
to adjudicate on whether the grounds of referral to the children’s
hearing are established, where the child or his parent does not
accept them;
(c)
to hear appeals against decisions of children’s hearings.
2. The procedure
(a) Urgent measures
As an urgent measure to protect a child before he or she can be
brought before a children’s hearing, a person may be
authorised by a judge to take a child to "a place of safety",
as defined in the 1968 Act, in cases where there is believed to be
lack of parental care (sections 37 (2) and 94 (1) of the 1968 Act).
Such detention may not in any case last more than seven days. The
Reporter must be notified immediately. If he then considers that
compulsory care may be needed, he must arrange a children’s
hearing to consider the case (section 37 (4)). If the children’s
hearing cannot dispose of the case, they may issue a warrant,
renewable once, requiring detention for up to twenty-one days
(section 37 (4) and (5)). Thereafter the Reporter may ask the
Sheriff for a warrant for further detention for a period of up to
twenty-one days (section 37 (5A)). The child and his or her parents
have a right to be heard before any such warrant is issued by a
children’s hearing or a Sheriff.
(b) Duties of the Reporter
The Reporter is under a duty to notify the parents of a child of a
children’s hearing giving at least seven days’ notice.
He also must provide before the first hearing a statement
of the grounds of referral. He must also request from
the local authority a report on the child and his or her social
background, and the local authority must supply it (section 39 (4)
of the 1968 Act).
(c) Persons entitled to attend at children’s
hearings
A parent has the right to attend at all stages of a children’s
hearing. "Parent" excludes the father of a child born out
of wedlock but includes a person who has been granted parental
rights under section 3 of the 1986 Act (sections 4 (1) and 30 (2) of
the 1968 Act). A parent may be represented by any person of his or
her choice (Rule 11 of the 1986 Rules).
(d) The safeguarder
Where the chairman of the children’s hearing considers that
there is a conflict of interest between child and parent, he has the
power to appoint a person known as a safeguarder to represent the
child (section 34A of the 1968 Act).
(e) Establishment of grounds of referral
At the first children’s hearing it must be ascertained if the
grounds of referral are accepted by the child or his or her parent.
If both child and parent accept, the hearing may proceed. If not,
the hearing must direct the Reporter to apply to the Sheriff Court
for a decision as to whether the grounds are established. Such
application must be made within seven days and heard within
twenty-eight days of its being lodged. The parents may appear as
parties and be represented. The hearing is conducted in chambers,
that is in private, in the interest of the child. Following the
hearing, the Sheriff may either discharge the referral or, where he
is satisfied that the grounds are established, remit the case to the
Reporter. The Reporter will then make arrangements for a further
children’s hearing for consideration and determination of the
case (section 42 (6) of the 1968 Act).
(f) Determination of the case by the children’s
hearing
At this stage, after discussing the case with the child, the parent
or parents, any safeguarder and any representative attending the
hearing, the children’s hearing must consider what
arrangements would be in the best interests of the child (section 43
of the 1968 Act). They may, amongst other things,
(1)
decide that no further action is required and discharge the
referral;
(2)
adjourn the case pending further investigations;
(3)
if they consider that the child is in need of compulsory measures of
care, make a supervision requirement (as to which, see paragraph 58
below).
Before the conclusion of the hearing the chairman must inform the
child, parent or parents, safeguarder (if any) and representatives
(if attending the hearing) of the decision of the children’s
hearing, the reasons for the decision, the right of the child or
parent to appeal to the Sheriff against the decision and the right
of the child and parent to receive a statement in writing of the
reasons for the decision. Such a written statement must then be
given if requested. Any parent, child or safeguarder who did not
attend must be notified in writing of the decision, the right to
receive a statement of reasons and the right to appeal (Rules 19 (4)
and 20 of the 1986 Rules).
Children’s hearings are required to consider any relevant
information made available to them (Rule 19 (2) (a) of the 1986
Rules). Apart from the statement of grounds of referral, this
information (which would include any report, document or information
submitted by the Reporter) is not usually supplied to the child or
his parents. However, the chairman is required at the hearing to
inform the child and his parents of the substance of such reports,
documents or information if it appears to him that this is material
to the manner in which the case should be disposed of and that its
disclosure would not be detrimental to the interests of the child
(Rule 19 (3) of the 1986 Rules).
(g) Supervision requirements
Supervision requirements are the orders of the children’s
hearing imposing compulsory measures of care. One kind of
requirement that may be ordered is to submit to supervision in
accordance with such conditions as the children’s hearing may
impose, which may include a condition that the child reside in a
particular place other than a residential establishment - for
example, with foster parents (section 44 (1) (a) and (b) of the 1968
Act).
A
supervision requirement makes the local authority responsible for
the care of the child in accordance with the requirement and gives
them the necessary powers to exercise this responsibility. It does
not, however, formally vest in them any parental rights of custody
and does not take away parental rights. Those rights are subject to
the supervisory requirements and, so far as inconsistent with those
requirements, they cannot be exercised.
Thus,
the right of custody cannot be exercised where a supervision
requirement has required a child to live in foster care. The Court
of Session has indicated in the case of Aitken v. Aitken ([1978]
Session Cases 297) that while such a supervision requirement
subsists it would be possible for them to award a person custody of
the child, but this award would have effect subject to the
supervision requirement and the person could not exercise actual
custody while the supervision requirement subsisted.
As
regards access, the children’s hearing is entitled to attach
conditions as to access when making or continuing a supervision
requirement (see Kennedy v. A. [1986] Scots Law Times 358). In the
absence of any express condition, the parents will be given
reasonable access. However, a local authority has the competence to
terminate access where that is appropriate in pursuance of their
duty under section 20 of the 1968 Act (see paragraph 45 above). The
Court of Session has made it clear, in the case of Dewar v.
Strathclyde Regional Council ([1984] Session Cases 102), that the
courts will not adjudicate on questions of access between the
parents and the local authority. If a parent is dissatisfied with
the decision of a local authority as to access, it is appropriate
for him or her to apply to a children’s hearing to regulate
the matter by attaching a condition as to access to the supervision
requirement. An appeal to the courts will then lie against the
decision of the children’s hearing.
A parent has the right to request a review of a supervision
requirement every six months after the last review (section 48 (4)
of the 1968 Act) and can use this right to obtain a ruling on
access.
The 1968 Act prescribes that a child should not continue to be
subject to a supervision requirement for any longer than is
necessary for his or her interest. The requirement must be reviewed
by a children’s hearing -
(a)
at any time if the local authority consider that it should cease to
have effect or be varied;
(b)
within one year, otherwise it will cease automatically to have
effect;
(c)
at the request of the child or his or her parent, after the expiry
of these periods -
(i)
three months from imposition of the requirement;
(ii)
three months from any variation of the requirement of review;
(iii)
six months from any other review (section 48 (4) of the 1968 Act).
The
Reporter must make the necessary arrangements for such revision
hearings. On review the children’s hearing may terminate,
continue or vary the requirement (sections 47 (1) and 48 of the 1968
Act).
(h)
Appeal against a decision of a children’s hearing
Within three weeks of a decision of a children’s hearing a
child or parent or both may appeal against it to the Sheriff
(section 49 (1) of the 1968 Act). This applies to all decisions.
The
Reporter has the duty to ensure that all reports and statements
available to the children’s hearing along with reports of the
proceedings of the children’s hearings and their reasons for
their decisions are lodged with the clerk to the Sheriff Court.
These documents are not made available to the parents as a matter of
practice.
The
appeal is heard in chambers, in the interest of the child. The
Sheriff must first hear the appellant or his representative and any
safeguarder appointed. Where an irregularity in the conduct of the
case is alleged, unless the facts are admitted by the Reporter, the
Sheriff must hear evidence tendered by or on behalf of the appellant
and the Reporter as to the irregularity. The Sheriff will then
proceed to question, if he thinks fit, the Reporter and the authors
or compilers of any reports and statements before him. He can call
for further reports and statements where he thinks that this may
help him. The child and parents and safeguarder are normally
entitled to be present throughout.
The Sheriff will allow the appeal if he finds that there was a flaw
in the procedure adopted by the children’s hearing, or that
the children’s hearing did not give proper consideration to
some factor in the case. Where he decides the appeal has failed, he
confirms the decision of the children’s hearing. Where he
allows the appeal, he may act as follows:
(a)
where the appeal is against a warrant for detention, he may recall
the warrant;
(b)
in any other case, he has the choice of remitting the case to the
children’s hearing for reconsideration or else of discharging
the child from any further proceedings arising from those grounds of
referral (section 49 (5) of the 1968 Act).
Pending an appeal, the child or his parents may make an application
to a children’s hearing for suspension of the supervision
requirement in question. The Reporter must then arrange for a
hearing, which may grant or refuse the application (section 49 (8)
of the 1968 Act).
C. Adoption procedure in Scotland
The legislation governing adoption procedure is the Adoption
(Scotland) Act 1978 ("the 1978 Act").
Under the 1978 Act an order declaring the child free for adoption
may be made by the Court of Session or Sheriff Court. The procedure
of freeing for adoption makes it possible for the child to live with
the prospective adopters in the period prior to adoption without the
risk of his or her being reclaimed by the natural parents.
Before
making the order the court must be satisfied as regards each parent
or guardian of the child that either
(a)
he or she freely, and with full understanding of what is involved,
agrees generally and unconditionally to the making of an adoption
order; or
(b)
his or her agreement to making the adoption order should be
dispensed with on a number of specified grounds, which include the
ground that the parent or guardian is withholding agreement
unreasonably (section 16 (2) of the 1978 Act).
For
the purposes of the 1978 Act the natural father of a child born out
of wedlock would not be a "parent" or "guardian"
except where he has subsequently married the mother or has a
parental-rights order in his favour.
The
effect of an order freeing the child for adoption is to vest
parental rights and duties in the adoption agency (that is, a local
authority or an approved adoption society) and to extinguish
existing parental rights. After freeing for adoption, the child will
normally live for a time with the prospective adopters and then they
will seek an adoption order.
An order of the Sheriff Court freeing a child for adoption is
subject to appeal to the Court of Session. On such an appeal the
Court of Session can decide on the whole merits of the action. The
Court of Session will normally proceed on the basis of the Sheriff’s
findings of fact but is not obliged to do so. It may, where
appropriate, take evidence itself or remit the case to the Sheriff
with instructions as to how he should proceed.
PROCEEDINGS BEFORE THE COMMISSION
Mr and Mrs McMichael lodged their application (no. 16424/90) with
the Commission on 11 October 1989. They complained that they had
been deprived of the care and custody of their son A., and thereby
of their right to found a family, as well as of access to the child
who had ultimately been freed for adoption. They alleged that they
had not received a fair hearing before the children’s hearing
and not had access to confidential reports and other documents
submitted to the hearing. The first applicant also submitted that,
as a natural father, he had no legal right to obtain custody of A.
or to participate in the custody or adoption proceedings and that,
accordingly, he had been discriminated against.
On 8 December 1992 the Commission declared inadmissible, on the
ground of being manifestly ill-founded, the applicants’
complaints directed against the taking of A. into care, the
termination of access to A. and the freeing of A. for adoption. The
remainder of the application was declared admissible. In its report
of 31 August 1993 (Article 31) (art. 31), it expressed the opinion:
(a)
unanimously, that there had been a violation of Article 8 (art. 8)
of the Convention;
(b)
by eleven votes to two, that there had been no violation of Article
6 para. 1 (art. 6-1) in respect of the first applicant;
(c)
unanimously, that there had been a violation of Article 6 para. 1
(art. 6-1) in respect of the second applicant;
(d)
unanimously, that there had been no violation of Article 14 (art.
14) in respect of the first applicant.
The
full text of the Commission’s opinion and of the two separate
opinions contained in the report is reproduced as an annex to this
judgment.
FINAL SUBMISSIONS TO THE COURT
At the hearing on 20 September 1994 the Government maintained in
substance the concluding submission set out in their memorial,
whereby they accepted that there had been a violation of Article 6
para. 1 (art. 6-1) in respect of the second applicant but invited
the Court to hold
"(1) that there has been no violation of Article 6
para. 1 (art. 6-1) of the Convention in respect of the first
applicant;
(2) that there has been no violation of Article 8 (art.
8) of the Convention in respect of the first applicant;
(3) that no separate issue arises under Article 8 (art.
8) of the Convention in respect of the second applicant; and
(4) that there has been no violation of Article 14
(art. 14) of the Convention in respect of the first applicant".
On the same occasion the applicants likewise maintained in
substance the conclusions formulated at the close of their memorial,
in which they relied on
"(primo) Article 6 para. 1 (art. 6-1) of the
European Convention on Human Rights, whose terms are referred to and
founded upon and are to effect that in this case the non-access to
information contravenes said Article (art. 6), et
(secundo) Article 8 (art. 8) of said Convention, whose
terms are referred to and founded upon in respect of private [and]
family life et cetera, [and which] in this case is also
contravened".
AS TO THE LAW
I. SCOPE OF THE CASE BEFORE THE COURT AND ADMISSIBILITY OF
EVIDENCE
In their memorial to the Court the applicants reiterated claims,
made in their application to the Commission (see paragraph 67
above), that the removal of their son A. from their care and
custody, the termination of their access to him and the order
freeing him for adoption were in contravention of Article 8 (art. 8)
of the Convention. The compass of the case before the Court is
delimited by the Commission’s decision on admissibility (see,
inter alia, the Powell and Rayner v. the United Kingdom judgment of
21 February 1990, Series A no. 172, p. 13, para. 29). Accordingly,
since the grievances in question were declared inadmissible by the
Commission as being manifestly ill-founded (see paragraph 68 above),
the Court has no jurisdiction to entertain them.
Before the Court the applicants made a further complaint not dealt
with in the Commission’s report or admissibility decision,
namely that the ultimate decision of the Sheriff Court and the Court
of Session freeing A. for adoption was arrived at unfairly as a
consequence of the insufficient opportunity for them to refute all
the evidence presented in the earlier care proceedings.
By
the time the local authority’s petition was heard by the
Sheriff Court (between 18 June and 27 July 1990) the first applicant
had obtained parental rights in respect of A. by virtue of his
marriage on 24 April 1990 to the second applicant (see paragraphs 31
to 33 above). The documentary evidence before the Sheriff Court was
disclosed to the applicants, who both participated in the
proceedings as parties, the second applicant being represented by a
solicitor (see paragraph 33 above). The order of the Sheriff freeing
A. for adoption was upheld by the Court of Session on appeal by the
applicants, who had persisted in their appeal despite legal advice
that it had no prospects of success at all (see paragraphs 34 to 37
above).
In
the light of the Court’s finding in relation to the care
proceedings (see paragraph 84 below) and to the fact that full
disclosure of relevant documents was made in the later adoption
proceedings themselves, the Court does not consider it necessary to
rule whether the scope of the case as referred to the Court also
extends to this complaint.
The applicants submitted that in their memorial to the Court the
Government were seeking "to proffer new evidence never
presented to the Commission" and that such inclusions were not
permissible.
The
Court notes that such "new" material as is included in the
Government’s memorial takes the form either of further
particulars as to the facts underlying the complaints declared
admissible by the Commission or of legal argument relating to those
facts. The Court is not precluded from taking cognisance of this
material in so far as it is judged to be pertinent (see Rule 41
para. 1 of Rules of Court A).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
The applicants argued that their inability to see certain
confidential reports and other documents submitted to the children’s
hearings and then the Sheriff Court gave rise to a violation of
Article 6 para. 1 (art. 6-1) of the Convention, which, in so far as
is relevant, provides:
"In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
an independent and impartial tribunal established by law ..."
A. Applicability of Article 6 para. 1 (art. 6-1)
1. Second applicant
The Government accepted the Commission’s conclusion that in
respect of the second applicant, Mrs McMichael, Article 6 para. 1
(art. 6-1) was applicable to the care proceedings before the
children’s hearings and the Sheriff Court.
On
the basis of its established case-law, the Court likewise sees no
cause to differ from the Commission’s conclusion (see, for
example, the W. v. the United Kingdom judgment of 8 July 1987,
Series A no. 121-A, p. 35, para. 78).
2. First applicant
However, the Commission, with whom the Government agreed, took the
view that Article 6 para. 1 (art. 6-1) had no application to the
complaint of the first applicant, Mr McMichael, that he was unable
to see the confidential reports and documents submitted in the care
proceedings.
Under Scots law Mr McMichael, as the natural father of a child born
out of wedlock, did not automatically have parental rights in
relation to the child such as the rights of tutory, custody and
access (see paragraphs 42 and 43 above). Nor did he make an
application for an order for parental rights, as he could have done
- an application which, at least as from 18 February 1988 (when his
name was added to A.’s birth certificate), would have been
dealt with in a speedy manner, given the mother’s consent (see
paragraph 43 above).
As a
consequence, as noted by the Commission, although the first
applicant played an active role as the second applicant’s
representative, he was not, and could not be, a party along with her
in the care proceedings before the children’s hearings in the
period before their marriage in April 1990 (see paragraphs 10, 15,
21, 24, 26, 29 and 32 above). Similarly, the appeals from the
children’s hearing to the Sheriff Court were, and could only
be, brought by the second applicant (see paragraphs 17, 27 and 61
above).
In
these circumstances, the Court agrees with the Commission’s
reasoning: even to the extent that the first applicant could claim
"civil rights" under Scots law in respect of the child A.
(see, inter alia, the above-mentioned W. v. the United Kingdom
judgment, pp. 32-35, paras. 72-79), the care proceedings in question
did not involve the determination of any of those rights, since he
had not taken the requisite prior step of seeking to obtain legal
recognition of his status as a father. In this respect the present
case is to be distinguished from the case of Keegan v. Ireland
(judgment of 26 May 1994, Series A no. 290).
B. Compliance with Article 6 para. 1 (art. 6-1)
1. The children’s hearing
One issue canvassed before the Court was whether the children’s
hearing could be regarded as a "tribunal" within the
meaning of Article 6 para. 1 (art. 6-1) in view of the manner of
appointment and removal of its members (see paragraph 47 above). The
Commission expressed the opinion that the members did not enjoy
sufficient independence from the administrative authorities, whereas
the Government argued the contrary.
The
Court for its part does not consider it necessary to resolve this
disputed issue in the present case, having regard to the conclusions
at which it has arrived as concerns the compliance with Article 6
para. 1 (art. 6-1) of the care proceedings taken as a whole (see
paragraph 84 below).
Even though in their view the children’s hearing did
constitute an independent "tribunal" for the purposes of
Article 6 para. 1 (art. 6-1), the Government conceded that in two
instances (on 4 February and 13 October 1988) the proceedings did
not ensure a "fair" trial as required by that provision
(art. 6-1) by reason of the inability of the second applicant or her
representative to see certain documents considered by the hearing.
The Court notes that on these two dates, in accordance with the
relevant procedural rules, documents before the hearing, in
particular social reports updating the information on the child A.,
reviewing the history of the case and making recommendations, were
not disclosed to the second applicant or the first applicant acting
as her representative, although the chairman of the hearing did
inform them of the substance of the documents (see paragraphs 15, 21
and 57 above). On 4 February 1988 the children’s hearing
decided that A. did need compulsory measures of care, notably
because of the mental health of both applicants, and a supervision
requirement was made placing A. under the supervision of the local
authority subject to the condition that he reside with foster
parents; this supervision requirement being continued at the
following hearing on 13 October 1988 (see paragraphs 15, 21 and 58
to 60 above). These were the two sole occasions of such
non-disclosure when the second applicant had participated in the
proceedings and a decision affecting her civil rights had been taken
- other than the decision on 5 September 1989, which was quashed on
appeal (see in addition paragraphs 26 and 27 above).
As
explained by the Government, the function of determining what
measures of care would be in the best interest of the child has been
conferred on the children’s hearing rather than the ordinary
courts because the legislature believed that this function is likely
to be exercised more successfully by an adjudicatory body of three
specially trained persons with substantial experience of children,
following a procedure which is less formal and confrontational than
that of the ordinary courts. The Court accepts that in this
sensitive domain of family law there may be good reasons for opting
for an adjudicatory body that does not have the composition or
procedures of a court of law of the classic kind (see, mutatis
mutandis, the X v. the United Kingdom judgment of 5 November 1981,
Series A no. 46, p. 23, para. 53). Nevertheless, notwithstanding the
special characteristics of the adjudication to be made, as a matter
of general principle the right to a fair - adversarial - trial
"means the opportunity to have knowledge of and comment on the
observations filed or evidence adduced by the other party" (see
the Ruiz-Mateos v. Spain judgment of 23 June 1993, Series A no. 262,
p. 25, para. 63). In the context of the present case, the lack of
disclosure of such vital documents as social reports is capable of
affecting the ability of participating parents not only to influence
the outcome of the children’s hearing in question but also to
assess their prospects of making an appeal to the Sheriff Court.
2. The Sheriff Court
Whilst not contesting the Commission’s conclusion that there
had been a violation of Article 6 para. 1 (art. 6-1) in relation to
the appeal procedure followed before the Sheriff Court, the
Government recalled that the relevant facts were as follows: Mrs
McMichael had appealed to the Sheriff Court against the initial
decision taken by the children’s hearing on 4 February 1988,
but that appeal had been abandoned by Mrs McMichael, who was
unrepresented and mentally unwell at the time (see paragraphs 15 to
17 above); she had not appealed against the subsequent decision
taken by the children’s hearing on 13 October 1988 (see
paragraph 21 above); her appeal against the next decision taken by
the (adjourned) children’s hearing on 5 September 1989 had
been successful (see paragraphs 24 to 27 above).
The Commission, citing the Court’s case-law, accepted that a
procedure which did not comply with Article 6 para. 1 (art. 6-1)
(such as that before the children’s hearing) could,
consistently with the Convention, precede the determination of civil
rights by an independent judicial body that exercised full
jurisdictional control over the prior procedure and did itself
provide the safeguards required by Article 6 para. 1 (art. 6-1) (see
the Albert and Le Compte v. Belgium judgment of 10 February 1983,
Series A no. 58, p. 16, para. 29). The Commission found the Sheriff
Court to be a "tribunal" within the meaning of Article 6
para. 1 (art. 6-1). It noted that the second applicant had a right
of appeal from the children’s hearing to the Sheriff Court,
which had jurisdiction to examine both the merits and alleged
procedural irregularities (see paragraphs 49, 61 and 62 above).
Nonetheless it considered that the second applicant’s right to
a fair trial had been impaired because, as a matter of practice,
documents lodged with the Sheriff Court by the Reporter, in
particular reports previously before the children’s hearing,
were not made available to an appellant parent (see paragraph 61
above). In its view, this practice revealed a basic inequality and
placed the parent at a substantial disadvantage both in respect of
bringing an appeal and in the subsequent presentation of any appeal.
The Court, like the Commission, is satisfied that, in relation to
disputes (contestations) between a parent and a local authority over
children taken into care, the Sheriff Court satisfies the conditions
of Article 6 para. 1 (art. 6-1) as far as its composition and
jurisdiction are concerned (see paragraphs 49, 61 and 62 above).
However, the requirement of an adversarial trial was not fulfilled
before the Sheriff Court, any more than it had been on the relevant
occasions before the children’s hearing (see paragraphs 17 and
27 above).
3. Conclusion
This being so, Mrs McMichael did not receive a "fair hearing",
within the meaning of Article 6 para. 1 (art. 6-1), at either of the
two stages in the care proceedings concerning her son A. There has
accordingly been a breach of Article 6 para. 1 (art. 6-1) in her
respect.
III. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
The applicants further claimed that, by reason of their inability
to see confidential reports and documents submitted before the
children’s hearings, there had been a violation of Article 8
(art. 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."
According to the Court’s well established case-law, "the
mutual enjoyment by parent and child of each other’s company
constitutes a fundamental element of family life" and domestic
measures hindering such enjoyment amount to an interference with the
right protected by Article 8 (art. 8) (see, inter alia, the
above-mentioned W. v. the United Kingdom judgment, p. 27, para. 59).
It would appear undisputed that in relation to both applicants the
care and custody measures resulting from the procedures complained
of not only came within the scope of paragraph 1 of Article 8 (art.
8-1) but also involved an "interference" within the
meaning of paragraph 2 (art. 8-2).
Whilst Article 8 (art. 8) contains no explicit procedural
requirements, the decision-making process leading to measures of
interference must be fair and such as to afford due respect to the
interests safeguarded by Article 8 (art. 8):
"[W]hat ... has to be determined is whether,
having regard to the particular circumstances of the case and
notably the serious nature of the decisions to be taken, the parents
have been involved in the decision-making process, seen as a whole,
to a degree sufficient to provide them with the requisite protection
of their interests. If they have not, there will have been a failure
to respect their family life and the interference resulting from the
decision will not be capable of being regarded as ‘necessary’
within the meaning of Article 8 (art. 8)." (see the
above-mentioned W. v. the United Kingdom judgment, pp. 28 and 29,
paras. 62 and 64)
The Commission and the applicants concluded that in this regard the
contested proceedings before the children’s hearings - at
which, despite non-disclosure of relevant documents, decisions
concerning the applicants’ relationship with A. were taken -
did not comply with Article 8 (art. 8). The Commission noted that no
special reasons for withholding the reports in question had been
advanced.
The Government, however, argued firstly that there had been no
violation of Article 8 (art. 8) in relation to the first applicant.
They pointed to the fact that he had no entitlement under domestic
law to be associated as a party in the care proceedings before the
children’s hearing because he had not sought recognition of
his parental rights as a natural father, as he could have done. In
the Government’s submission, assuming that the resultant
exclusion of the first applicant from full involvement in the care
proceedings can be said to have had a reasonable and objective
justification (as to which, see paragraph 98 below), it would be
inconsistent to find that any interference with his family life
resulting from those proceedings was contrary to Article 8 (art. 8).
In
the second place, the Government maintained that in so far as the
non-disclosure to the second applicant of documents before the
children’s hearing was held to have rendered the procedure
unfair and infringed her rights under Article 6 para. 1 (art. 6-1),
it was unnecessary to examine the same complaint under Article 8
(art. 8) as no separate issue arose.
As regards the Government’s first submission, it is true that
at the outset, in late 1987 and early 1988, the second applicant
denied the first applicant’s paternity of A. and that the
initial relevant instance of non-disclosure of documents at a
children’s hearing occurred two weeks before the first
applicant’s name had been added to A.’s birth
certificate (4 and 18 February 1988 respectively) (see paragraphs 7,
11, 14, 15 and 18 above). However, the first applicant had claimed
paternity on 27 January 1988; and even at the time of this initial
children’s hearing he was living with the second applicant and
was, especially in his capacity as her representative, closely
associated in the attempt to obtain access to A. (see paragraphs 7,
13, 14 and 15 above). Thereafter the two applicants acted very much
in concert in their endeavour to recover the custody of and have
access to A., not only in the framework of the legal proceedings
before the children’s hearing and the Sheriff Court but also
in their dealings with the social work department of the local
authority (see paragraphs 18 and 20 to 25 above). During the
relevant period taken as a whole they were living together and
leading a joint "family life", to the extent that that was
possible in the light of the second applicant’s periodic
hospitalisation (see paragraphs 16 and 30 above).
In
the particular circumstances, the Court considers that it would not
reflect the reality of the situation to draw the distinction
advocated by the Government between the two members of the applicant
couple.
As to the Government’s second submission, the Court would
point to the difference in the nature of the interests protected by
Articles 6 para. 1 and 8 (art. 6-1, art. 8). Thus, Article 6 para. 1
(art. 6-1) affords a procedural safeguard, namely the "right to
a court" in the determination of one’s "civil rights
and obligations" (see the Golder v. the United Kingdom judgment
of 21 February 1975, Series A no. 18, p. 18, para. 36); whereas not
only does the procedural requirement inherent in Article 8 (art. 8)
cover administrative procedures as well as judicial proceedings, but
it is ancillary to the wider purpose of ensuring proper respect for,
inter alia, family life (see, for example, the B. v. the United
Kingdom judgment of 8 July 1987, Series A no. 121-B, pp. 72-74 and
75, paras. 63-65 and 68). The difference between the purpose pursued
by the respective safeguards afforded by Articles 6 para. 1 and 8
(art. 6-1, art. 8) may, in the light of the particular
circumstances, justify the examination of the same set of facts
under both Articles (art. 6, art. 8) (compare, for example, the
above-mentioned Golder judgment, pp. 20-22, paras. 41-45, and the O.
v. the United Kingdom judgment of 8 July 1987, Series A no. 120-A,
pp. 28-29, paras. 65-67).
As
regards the instant case, the facts complained of had repercussions
not only on the conduct of judicial proceedings to which the second
applicant was a party, but also on "a fundamental element of
[the] family life" of the two applicants (see paragraph 86
above). In the present case the Court judges it appropriate to
examine the facts also under Article 8 (art. 8).
The Government have already conceded, in the context of Article 6
para. 1 (art. 6-1), the unfair character of the care proceedings on
specified occasions by reason of the inability of the second
applicant or the first applicant acting as her representative to
have sight of certain documents considered by the children’s
hearing and the Sheriff Court (see paragraphs 79 and 81 above).
The
Court, taking note of this concession, finds that in this respect
the decision-making process determining the custody and access
arrangements in regard to A. did not afford the requisite protection
of the applicants’ interests as safeguarded by Article 8 (art.
8). Having regard to the approach taken in the present judgment in
regard to the treatment of the applicants’ complaint under
Article 8 (art. 8) (see paragraph 90 above), the Court does not deem
it appropriate to draw any material distinction between the two
applicants as regards the extent of the violation found, despite
some differences in their legal circumstances.
In conclusion, there has been a breach of Article 8 (art. 8) in
respect of both applicants.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
TOGETHER WITH ARTICLE 6 PARA. 1 AND/OR ARTICLE 8 (art. 14+6-1, art.
14+8)
Finally, the first applicant claimed that he had been a victim of
discriminatory treatment in breach of Article 14 (art. 14) of the
Convention, which provides:
"The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status."
In
his submission, he had been discriminated against as a natural
father contrary to Article 14 taken in conjunction with Article 6
para. 1 and/or Article 8 (art. 14+6-1, art. 14+8), in that prior to
his marriage to the second applicant he had no legal right to
custody of A. or to participate in the care proceedings.
The Commission, with whom the Government agreed, expressed the
opinion that the difference in treatment complained of by the first
applicant did not disclose any discrimination contrary to Article
14, whether taken in conjunction with Article 6 para. 1 or Article 8
(art. 14+6-1, art. 14+8).
Under Scots law a child’s father automatically acquires the
parental rights of tutory, custody and access only if married to the
child’s mother (see paragraphs 42 and 43 above). Further, only
a "parent", that is a person having parental rights, is
entitled to attend at all stages of a children’s hearing (see
paragraph 52 above). The natural father of a child born out of
wedlock may obtain parental rights by making an application to a
court; such an application will be dealt with speedily if the mother
consents (see paragraph 43 above).
Mr
McMichael was therefore in a less advantageous position under the
law than a married father. It is to be noted however that, even
after the mother had recognised him as the father of A. in February
1988 (see paragraph 18 above), he never sought an order for parental
rights, which would have allowed him the status of a party, together
with Mrs McMichael, in the care proceedings.
According to the Court’s well established case-law, a
difference of treatment is discriminatory if it has no reasonable
and objective justification, that is, if it does not pursue a
legitimate aim or if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised (see, amongst numerous authorities, the Marckx v. Belgium
judgment of 13 June 1979, Series A no. 31, p. 16, para. 33).
The first applicant’s complaint is essentially directed
against his status as a natural father under Scots law.
As
the Commission remarked, "it is axiomatic that the nature of
the relationships of natural fathers with their children will
inevitably vary, from ignorance and indifference at one end of the
spectrum to a close stable relationship indistinguishable from the
conventional matrimonial-based family unit at the other"
(paragraph 126 of the report). As explained by the Government, the
aim of the relevant legislation, which was enacted in 1986, is to
provide a mechanism for identifying "meritorious" fathers
who might be accorded parental rights, thereby protecting the
interests of the child and the mother. In the Court’s view,
this aim is legitimate and the conditions imposed on natural fathers
for obtaining recognition of their parental role respect the
principle of proportionality. The Court therefore agrees with the
Commission that there was an objective and reasonable justification
for the difference of treatment complained of.
In conclusion, there has been no violation of Article 14 taken in
conjunction with Article 6 para. 1 or Article 8 (art. 14+6-1, art.
14+8) in respect of the first applicant.
V. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
Under the terms of Article 50 (art. 50),
"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."
A. Non-pecuniary damage
The applicants, who were legally aided, did not make any claim for
reimbursement of costs and expenses. Their lawyer did however seek
"adequate financial compensation to both applicants in
proportion to each for distress, sorrow and injury to health
suffered". He asked for an award of "considerable
damages".
In the Government’s main submission, having regard to the
facts of the case, it was impossible to maintain that the outcome of
the care proceedings before the three children’s hearings in
question (on 4 February 1988, 13 October 1988 and 5 September 1989 -
see paragraphs 15 to 17, 21 and 24 to 27 above) might have been
different if the second applicant had actually seen all the relevant
documents instead of having their contents explained to her. She
could not, so they argued, be said to have suffered a loss of real
opportunities; nor was the present case comparable to other cases
concerned with children in which damages had been awarded for
feelings of frustration and helplessness (such as O. v. the United
Kingdom, judgment of 9 June 1988, Series A no. 136-A, or Keegan v.
Ireland, loc. cit., p. 23, paras. 66-68). They invited the Court to
hold that, in the event of the finding of a violation, any
non-pecuniary damage suffered by the first and second applicants
would be adequately compensated by that finding.
In the alternative,
they submitted that a reasonable award should be appreciably less
than that made in the other children cases referred to.
Whilst the present applicants may not have suffered a loss of real
opportunities to the same extent as previous applicants who had been
denied access to a proper remedy, it cannot be affirmed with
certainty that no practical benefit could have accrued to them if
the procedural deficiency in question had not existed. More
importantly, the Court accepts that some, although not the major
part, of the evident trauma, anxiety and feeling of injustice
experienced by both applicants in connection with the care
proceedings is to be attributed to their inability to see the
confidential documents and reports in question. An award of
financial compensation is therefore warranted. Making an assessment
on an equitable basis, as it is required to do under the terms of
Article 50 (art. 50), the Court awards the applicants jointly the
sum of £8,000.
B. Other relief
The lawyer for the applicants also invited the Court to make a
number of declarations and orders, notably instructing the
Government to specify the arrangements they propose to take to
remedy the admitted violation of the Convention and decreeing that
A. had been legalised "per subsequens matrimonium" and
that both applicants share in equal measure the rights safeguarded
under Articles 6 para. 1 and 8 (art. 6-1, art. 8) of the Convention.
The two applicants’ respective rights under Articles 6 para.
1 and 8 (art. 6-1, art. 8) of the Convention in relation to the
claims made are as stated in the present judgment. Beyond that, the
Court is not empowered under the Convention to make the orders and
declarations sought (see, inter alia, the W. v. the United Kingdom
judgment of 9 June 1988, Series A no. 136-C, p. 26, para. 14).
FOR THESE REASONS, THE COURT
1. Holds unanimously that it has no jurisdiction to entertain the
applicants’ complaints directed against the taking of A. into
care, the termination of access to A. and the freeing of A. for
adoption;
2. Holds unanimously that it is not necessary to rule whether it
has jurisdiction to entertain the applicants’ complaint
relating to the fairness of the adoption proceedings;
3. Holds unanimously that Article 6 para. 1 (art. 6-1) of the
Convention has no application to the first applicant’s
complaint;
4. Holds unanimously that there has been a violation of Article 6
para. 1 (art. 6-1) of the Convention in respect of the second
applicant;
5. Holds by six votes to three that there has been a violation of
Article 8 (art. 8) of the Convention in respect of the first
applicant;
6. Holds unanimously that there has been a violation of Article 8
(art. 8) of the Convention in respect of the second applicant;
7. Holds unanimously that there has been no violation of Article
14 of the Convention, whether taken together with Article 6 para. 1
or Article 8 (art. 14+6-1, art. 14+8), in respect of the first
applicant;
8. Holds unanimously that the respondent State is to pay to the
applicants jointly, within three months, £8,000 (eight
thousand pounds sterling) in respect of non-pecuniary damage;
9. Rejects unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 24 February 1995.
Rolv RYSSDAL
President
Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention
and Rule 53 para. 2 of Rules of Court A, the joint partly dissenting
opinion of Mr Ryssdal, Mrs Palm and Sir John Freeland is annexed to
this judgment.
R. R.
H. P.
