European Court of Human Rights

18 November 2008

FOURTH SECTION

Application no. 33755/06
by SW
against the United Kingdom
lodged on 16 August 2006

Statement of Facts

THE FACTS

The applicant, SW, is a Nigerian national. She was born in Nigeria and currently lives in Surrey.

A.  The circumstances of the case

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

The applicant was born in Nigeria on 11 June 1958. She subsequently moved to the United Kingdom and in the early 1990s she was employed by JW as a housekeeper. In October 1991 she was arrested on charges of fraud, forgery and blackmail against JW. While she was awaiting trial she was transferred to hospital for assessment under section 48 of the Mental Health Act 1983. She was deemed fit to plead and in August 1992 she was convicted and sentenced to eight years’ imprisonment, which was reduced to five years on appeal. In 1994, while she was serving her sentence, the applicant and JW married.

The applicant was released from prison in May 1995 and she began to co-habit with JW. On 12 January 2006 she gave birth to twins (LW and HW, who has been diagnosed with autism). A third child, EW, was born on 1 July 1997.

The relationship between the applicant and JW was acrimonious and by June 1998 there were concerns about the impact on the children. In June 2001 the local authority applied for care orders after JW assaulted the applicant. In August 2001 the children’s names were placed on the Child Protection Register under the category “emotional abuse and neglect”. JW left the matrimonial home in November 2001. In July 2002 a district judge made an interim care order. At that time the local authority’s plan was for the children to remain with the applicant.

In October 2002, however, HW was excluded from school and on 22 November 2002 all three children were removed from the applicant’s care and placed with foster carers. The applicant appealed against the decision to remove her children but the appeal was dismissed in December 2002. A further interim care order was made.

In January 2003 the threshold hearing took place over a period of ten days. The court found the threshold criteria proved as the children were suffering, or were at risk of suffering, significant harm attributable to the applicant’s care. The final hearing took place in November 2003 over five days. The local authority’s care plan was for adoption or long-term foster placement without contact. The applicant, on the other hand, sought the return of the children either immediately or following a residential assessment. The expert evidence suggested that the three children had been thriving with the foster carers. The applicant, on the other hand, had been diagnosed as suffering from a personality disorder, with a “histrionic, narcissistic and compulsive personality”. She had made unsubstantiated complaints about the foster carers and used every opportunity to undermine the placement. She had also made a number of absurd complaints against the local authority, and was unable to co-operate with social workers. The judge made the care order to the local authority, noting that the applicant’s personality was such that she could not be relied on to be emotionally consistent and calm in the care of the children, or truthful and accurate in her description of events. The order permitted the applicant to have contact with the children three times a year, but the local authority could refuse contact if it was thought that her conduct was likely to disturb the placement of the children with the carers. Finally, the court recommended that the local authority begin to assess potential carers immediately.

On 3 March 2004 the applicant’s appeal against the care order was dismissed. She subsequently sought leave to appeal to the Court of Appeal but that application was also dismissed. On 8 March 2004 the applicant applied to discharge the care orders. The following month, in April 2004, the applicant’s application to discharge the care orders, her application for interim contact and an application by the local authority to free the children for adoption were consolidated and the final hearing was listed for 20 September 2004. On 8 August 2004 the children were placed with prospective adopters.

The applicant’s therapist, Dr B, had been granted leave to provide a report. He did not report until 3 September 2004, which was too late to allow the other professionals to comment on his conclusions before the final hearing. The delay was in part caused by the fact that the applicant did not want her medical records to be disclosed to the court. The applicant had also instructed Dr A, a consultant child and adolescent psychiatrist, who was advised of the date scheduled for the final hearing but did not produce his assessment until 18 October 2004. As a consequence of the difficulties obtaining these two reports, the hearing date had to be vacated and the case was relisted for 23 May 2005.

Prior to the hearing the applicant applied unsuccessfully for an earlier hearing of the application to discharge the care orders. She also brought an application for leave to seek judicial review of the care orders, the freeing application and various other directions, but the application was refused as an abuse of process. The applicant’s subsequent application for leave to appeal to the Court of Appeal was refused.

At the hearing on 23 May 2005 the applicant produced a letter, which she said had been written by LW, stating that the children were unhappy in their placement. The hearing was adjourned to allow handwriting samples from the children and the applicant to be disclosed to an expert for analysis, and to enable police checks to be carried out on JW. Prior to the final hearing on 9 September 2005, the court made a number of orders. In particular, orders were made to prohibit the applicant and her acquaintances from harassing and intimidating the prospective adopters, an order was made enabling police checks to be carried out on the prospective adopters following unsubstantiated allegations made by the applicant and her acquaintances, and finally, following allegations that the applicant was using the identity of a Nigerian High Court Judge, an order was made permitting the disclosure of documents to the Judge.

At the hearing on 9 September 2005 the court dismissed the application to discharge the care orders and made a freeing order. In doing so, the court found that adoption was in the best interests of the children and that the consent of the parents should be dispensed with. Finally, the court provided that the applicant should have direct contact with the children twice a year if she was able to amend her conduct.

The applicant applied for leave to appeal to the Court of Appeal, but the application was refused on 27 February 2006.

B.  Relevant domestic law

Section 31 of the Children Act 1989 provides for the making of care and supervision orders:

“ (1) On the application of any local authority or authorised person, the court may make an order—

(a) placing the child with respect to whom the application is made in the care of a designated local authority; or

(b) putting him under the supervision of a designated local authority or of a probation officer.

(2) A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child’s being beyond parental control.

The Adoption and Children Act 2002 provides for the making of placement orders:

“21 Placement Orders

(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.

(2) The court may not make a placement order in respect of a child unless—

(a) the child is subject to a care order,

(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(c) the child has no parent or guardian.

(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied—

(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or

(b) that the parent’s or guardian’s consent should be dispensed with.

... ... ...

52 Parental etc. consent

(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

(a) the parent or guardian cannot be found or is incapable of giving consent, or

(b) the welfare of the child requires the consent to be dispensed with.”

COMPLAINTS

The applicant complains under Articles 1 – 14 and 17 of the Convention, Articles 1 and 2 of Protocol No. 1, Article 2 of Protocol No. 4, Article 4 of Protocol No.7 and Article 1 of Protocol No. 12 that her rights have been violated as a result of the removal of her children from her care and the conduct of the related court proceedings, including the length of proceedings.

QUESTION TO THE PARTIES

Were the domestic proceedings conducted within a reasonable time or was there a violation of Article 6 § 1 of the Convention?