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R. AND H. v. THE UNITED KINGDOM - 35348/06 [2011] ECHR 844 (31 May 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/844.html
Cite as:
[2011] Fam Law 924,
(2012) 54 EHRR 2,
[2011] 2 FLR 1236,
[2011] ECHR 844
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FOURTH
SECTION
CASE OF R. AND H. v. THE UNITED KINGDOM
(Application
no. 35348/06)
JUDGMENT
STRASBOURG
31 May
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of R. and H. v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no. 35348/06) against the
United Kingdom of Great Britain and Northern Ireland lodged with the
Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by two
British nationals, R and H, on 21 August 2006.
The applicants were represented by McEvoy Sheridan, a firm of
solicitors practising in Downpatrick, Northern Ireland. The United
Kingdom Government (“the Government”) were represented by
their Agents, Ms E. Willmott and Ms H. Moynihan of the
Foreign and Commonwealth Office.
The applicants alleged the domestic courts' decision to free their
daughter N was unfair and not supported by relevant and sufficient
reasons.
On
18 September 2008 the Vice-President of the Fourth Section of the
Court decided to give notice of the application and to communicate
the complaint concerning Article 8 to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1). Priority was accorded to the
application, pursuant to Rule 41 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first applicant, R, was born in 1962. The second applicant, H,
was born in 1971. They live in Northern Ireland. The applicants are
the biological parents of a child, N, who was born in April 2002. The
first applicant, R, is the child's father; the second applicant, H,
is her mother. The second applicant has three other children, HH, P
and T, who were born in 1989, 1991 and 1996 respectively. Full care
orders were made in respect of HH, P and T in 2001. Another child, O,
was born to the applicants in November 2006 and has remained in their
care.
A. The “freeing order” proceedings in respect of N
The second applicant has a long history of alcohol problems and has
experienced various periods of stability and sobriety followed by
periods of abuse of alcohol, including when she was pregnant with N.
When N was born, she was removed at birth and the second applicant
was admitted to an addictions centre where she remained for
approximately one month. Both applicants attended a parenting centre
with N in June 2002 for assessment purposes: they take the view that
the assessment reports were positive.
In August 2002, the applicants were allowed to take N home. T was
returned to the applicants' care in early March 2003. Further reports
were also positive until late March 2003 when HH and P came home for
contact visits and then refused to leave. The second applicant
started drinking again. She asked for help and N was removed by
social workers from the Down Lisburn Health and Social Services Trust
(“the Trust”) on a voluntary basis and placed with foster
carers.
HH, T and P were also removed to Trust accommodation. HH was
eventually returned to the second applicant in November 2003, by
which time she was fourteen years of age, and P insisted on leaving
foster care and returning to the second applicant in February 2005,
when he was thirteen years of age. T was returned to the applicants
in December 2007 (see paragraph 40 below).
On or around 29 May 2003, the Trust applied for a care order in
respect of N. The care plan, which was submitted by the Trust with
its application for the care order, envisaged that N would remain in
the care of short-term foster parents pending an application to the
High Court to free her for adoption. On 7 July 2003, the Trust
was granted an interim care order in respect of N.
On 17 July 2003, at a “Looking after children” (LAC)
review attended by the applicants, the Trust decided that N's case
should be referred to the Trust's Permanency Panel. On 20 August
2003, the Trust's Permanency Panel decided to refer the case to the
Trust's Adoption Panel. The Permanency Panel did not make any
recommendations on adoption at this stage but recommended that the
care plan should be made more explicit and the second applicant, who
had stopped drinking at this time, be monitored to see if she
remained sober. It referred the matter of the care plan back to the
LAC review. On 4 September 2003, the LAC referred N's case to the
Adoption Panel. However, it also decided that a “kinship
assessment” (a social work assessment of whether a specific
family member can care for a child) be completed in respect of N's
maternal grandmother, MRH. That assessment was completed in November
2003 and concluded that it would not be appropriate for N to be
placed with MRH. This was because, in the late 1980s, MRH's husband,
from whom she was estranged but with whom she continued to live, had
been the subject of allegations that he had inappropriately touched
one of their daughters. He had also refused to participate in the
kinship assessment.
On 23 September 2003, MRH applied for a residence order in
respect of N and her sister, T.
On 11 December 2003, the Trust's Adoption Panel recommended the
adoption of N.
1. Proceedings before the Family Judge
The Trust's application for a care order and MRH's application
for a residence order were heard together by a judge sitting at the
Belfast Family Care Centre (“the Family Judge”). In those
proceedings a number of reports were filed including one prepared by
a consultant forensic psychiatrist on the second applicant, which had
been commissioned by the Trust. The report, dated 22 April 2004,
identified a series of personality based difficulties, which caused
the second applicant's alcohol abuse but which were also made worse
by it. The psychiatrist was not asked to recommend any particular
course of treatment in the report.
In his judgment of 30 July 2004, the Family Judge
first considered whether it was possible to make no order in favour
of either the maternal grandmother or the Trust, the effect of which
would be to return N to her parents. In concluding that this was not
an option, he found that while the second applicant, when sober,
provided adequate and appropriate parenting, he did not believe that
on the balance of probabilities she would remain abstinent. The first
applicant would not provide adequate protection for N in such an
event and there was the further prospect of domestic violence by the
first applicant towards the second applicant.
The Family Judge then dismissed the application by MRH for
residence orders in respect of N and her sister. He found that there
was insufficient evidence to make a finding that MRH's husband had
committed sexual abuse in the 1980s but it was of great concern that
he had refused to be assessed. MRH, from whom the Family Judge had
heard evidence, had not grasped the basic implications of a residence
order, particularly that it would entrust N to her care for over
fourteen years.
The Family Judge made a full care order in respect of N in favour
of the Trust. On the basis of expert evidence recommending three to
four annual face-to-face meetings between N and her parents in the
event of her adoption, the judge approved the Trust's plan to reduce
contact gradually, from twice a week with the applicants, once a week
with the whole family and once a month with her siblings only to one
meeting a month. The applicants initially sought to appeal
against the Family Judge's order but withdrew their appeal on 16
September 2004 when public funding was withdrawn by the Northern
Ireland Legal Services Commission.
2. The High Court proceedings
On 14 September 2004, the Trust applied to the High Court for an
order freeing N for adoption (a “freeing order”) and
sought to have the need for the applicants' agreement dispensed with
on the ground that they were withholding their agreement
unreasonably. The application was heard over seven days between 25
January 2005 and 14 April 2005. It appears from the domestic
decisions as submitted by the applicants, in particular the
dissenting opinion of Baroness Hale (see paragraphs 30–33
below), that the Trust made no attempts to find prospective adopters
in that time since it was not its policy to do so until a freeing
order had been made. The Government in their submissions to this
Court considered that these findings overlooked the initial steps
which had been taken to find suitable carers for N, such as
contacting a voluntary adoption agency (see paragraph 60 below).
The High Court heard expert evidence from a professor of social
work, Professor John Triseliotis, on two separate days. On the first
day, Professor Triseliotis stated that he disagreed with the Trust's
plans for no contact between the applicants and N after the adoption.
There could be no question of post-adoption contact if the applicants
did not support the adoption but their opposition to adoption did not
mean that they would undermine the placement if an order was made. He
further stated that the applicants had to be judged after the court
had made its decision.
Before Professor Triseliotis could finish his evidence, a senior
social worker gave evidence for the Trust stating that the Trust had
initially been opposed to direct post-adoption contact because of the
parents' hostility but, having heard Professor Triseliotis' evidence,
they were prepared to look for prospective adopters who would meet
N's need for continued contact with the applicants. However, they
could not guarantee finding such adopters or that contact would be
workable.
When giving evidence for the second time, Professor Triseliotis
accepted that if every effort was made over a period of six months to
find suitable adopters who would agree to direct contact, but none
could be found, he would “go for adoption but with some regret
that an adoptive parent would be so exclusive”.
In its judgment of 31 May 2005, [2005] NIFam 5, the High Court concluded that
adoption was in N's best interests and made a freeing order. The
trial judge (Mr Justice Gillen) accepted that there was no realistic
possibility of the second applicant remaining abstinent from alcohol
during N's childhood. He further found that the second applicant had
clearly attempted to minimise domestic violence in the household and
regarded it as “another instance where she fails to prioritise
the needs of her children over those of herself or her partner”.
The trial judge also rejected the applicants' submission that the
Trust should have diagnosed the second applicant's personality
difficulties sooner. He stated:
“[The second applicant] cannot place the burden of
her problems on to the Trust. She has her own responsibilities and if
she wished to address this problem of drinking she cannot leave it
entirely up to the Trust. Failure to ascertain the root of her
problem lies partly at least with her own actions. The welfare of
this child cannot be sacrificed to the need to address her problems
of alcohol. Moreover I am satisfied that the Trust had taken all
reasonable steps to afford her professional and expert help and it
cannot be blamed if only now yet another alternative remedy is
postulated. I believe it is too long a timescale to address all these
problems at this stage and I am not prepared to endanger the future
of N simply to meet the lateness of the prognosis of H's problems.”
After considering the relevant case-law of this Court and the
domestic courts on adoption and Article 8 of the Convention, the
trial judge stated that he was satisfied that adoption was in the
best interests of N. He then considered whether the Trust had
satisfied him on the balance of probabilities that the applicants
were unreasonably withholding their consent. He rejected the
applicants' argument that a reasonable parent would be justified in
withholding consent until they could be assured that any prospective
adoptive parents would agree to post-adoption contact and also
rejected their argument that the Trust should have taken steps to
identify such a couple before making the application for a freeing
order. He stated:
“I am satisfied that the need for adoption is so
pressing that whilst it would be preferable that some limited measure
of post adoption contact should be established if possible
nonetheless adoption must proceed even if this cannot be achieved.
Otherwise both parents could operate a veto on adoption by behaving
so badly that no one would agree to post adoption contact....I share
the view of Professor Triseliotis that if all reasonable efforts to
find a couple who will embrace post adoption contact fail then the
circumstances of the historical events of the past still make it
imperative that the adoption should proceed. Any reasonable parent in
my view would readily understand that. This is not inconsistent with
Article 8 of the ECHR but rather a careful consideration of the
rights of this child as well as the rights of the adults.”
Having reached the conclusion that the applicants' consent could be
dispensed with on the ground that it was unreasonably withheld, the
trial judge added:
“Whilst it is inappropriate for me to look at the
question of contact post adoption until this child comes before the
court for adoption, I feel it is appropriate that I should say that I
accept entirely the view expressed by Professor Triseliotis that it
is important that if at all possible this child should have the
benefit of continued contact with both parents at the frequency
suggested by Professor Triseliotis. . . . If these birth parents can
accept the new position and help this child to settle down without
undermining the placement, I believe this can be of great assistance
to this child now and in the future. . . . I also sincerely hope that
the prospective adoptive parents when they are chosen will be
carefully counselled as to the views of Professor Triseliotis
concerning the benefits of post adoption contact but obviously if
after all reasonable efforts have been made by the Trust for a period
of six months or so, and no such couple can be found, then I am of
the opinion that the benefits of adoption will outweigh the benefits
of post adoption contact....I am satisfied that a freeing order in
this case is a proportionate response to the legitimate aim of
ensuring the welfare of this child. I have sought to balance the
Article 8 rights of both parents, reminded myself that this draconian
remedy should only be resorted to where no alternative avenue is open
and where the interest of the child clearly requires it.”
3. The Court of Appeal's judgment
The applicants appealed to the Court of Appeal in Northern Ireland.
On 22 November 2005, the Court of Appeal refused the appeal by a
majority. All three judges expressed disagreement with certain of the
trial judge's findings, in particular his view that there was no hope
of the mother remaining abstinent. However, the majority did not
consider that he was plainly wrong in finding that freeing N for
adoption was in her interest.
Lord Justice Nicholson considered first the factual basis for the
trial judge's order. He noted that a number of allegations of
domestic violence by the first applicant had been withdrawn by the
second applicant and HH but found it served no purpose to re-open the
Family Judge's findings (see paragraphs 14–17 above).
He found:
“Time is not on the side of N and on the best
scenario of H's progress, N would be 5½ years old before it
would be safe to return her to her parents. By that time N would
almost certainly be too old to be adopted successfully and although I
consider that the probability is that H will not relapse, I am not
prepared to take the risk that she will do so under the stresses and
strains of coping with [HH] and P as she did in 1996. I recognise
that she is almost 10 years older and much more mature but the risk
of serious harm to N is there and the damage caused to [HH] and P is
evident. The damage to N if she was returned would be, to quote
Professor Tresiliotis: 'catastrophic'.
But as I have indicated I do not take the pessimistic
view of the judge about H and R. The birth parents are capable of
supporting the bonding of adoptive parents with N. If this proves
wrong, H and R would have only themselves to blame. If a Freeing
Order is made, they will need counselling not merely from someone who
helps H to understand why she resorted to drink ... Moreover, if
there is a relapse, this should not operate as a bar to contact with
N, provided that it is supportive. I realise that H and R have been
antagonistic to adoption. That is not surprising, especially having
regard to their own achievements since 2003. But the Trust must
realise that if a Freeing Order is made, their hostility may change,
not least as they will otherwise lose all contact with N.
Furthermore, if a Freeing Order is made the Trust must
be shown to the judge dealing with the adoption as having made every
effort to find prospective adoptive parents who will be prepared to
permit supportive contact by the birth parents in the interests of N,
as Professor Tresiliotis has urged.
In order to ensure that the Trust fulfils its
obligations it has been agreed with Gillen J, who is the Family
Judge, that if a Freeing Order is made, Campbell LJ should be the
judge who deals with the adoption. Hopefully, it will put pressure on
the Trust to meet their obligations. The judge himself indicated his
concern that direct contact should be available to H and R if they
prove supportive to adopting parents.”
Lord
Justice Nicholson further found that the Trust should have been
required to provide evidence as to the availability of prospective
adopting parents who would permit direct contact with supportive
birth parents. Nevertheless, he upheld the view of the trial judge
that reasonable parents would accept that if prospective adopters
could not be found who would permit contact, N should still be
adopted. On Article 8 of the Convention, he concluded:
“ I am satisfied that the judge gave careful
consideration to the Article 8 rights of H and R and N's siblings. I
bear in mind the steps taken by the Trust to rehabilitate H and R
after the birth of N and the fact that she was placed with them in
August 2002 and only taken away in June 2003 when H had a relapse.
The decision to make a freeing order is the most drastic step which
can be taken in breaking the bond of parent and child. I have read
all the relevant authorities which were drawn to our attention. I
have disagreed with the judge's assessment of a number of important
matters. But I am satisfied that a freeing order is a proportionate
response to the legitimate aim of ensuring the welfare of N, bearing
in mind her rights and the rights of H and R and N's siblings under
Article 8.
On a freeing order a court cannot attach conditions. I
have made clear my views on the issue of contact post-adoption. It
will be a matter for the judge at the adoption hearing to determine
whether suitable adoptive parents have been found. Consensual
arrangements for contact between adopting and birth parents are much
to be preferred.”
Lord
Justice Campbell, concurring, was not in full agreement with the
trial judge either in his assessment of the expert evidence as giving
no realistic possibility of the second applicant continuing to remain
abstinent during N's childhood or in his view that the prospects of
success of the course of treatment that was proposed were not good.
However, he was satisfied that the pressing needs of N could not wait
to be met until H had successfully completed the course of treatment.
He also found that when the question of contact was a finely balanced
judgment, the issue was whether the advantages of adoption to the
welfare of N were sufficiently strong as to justify overriding the
views of the applicants. The trial judge had been satisfied that the
need for adoption was so pressing that whilst it would be preferable
to have some limited measure of post-adoption contact, nonetheless
adoption had to proceed even if this could not be achieved.
The reasonable parent, faced with this decision and with the
welfare of N in mind, would be driven to this conclusion.
Lord Justice Shiel, dissenting, agreed with the other members of
this court that it was in the best interests of N that she should be
freed for adoption. However, he considered that the trial judge was
incorrect in holding that the applicants were withholding their
consent unreasonably. The evidence of Professor Triseliotis meant it
was a finely balanced judgment as to whether to free N for adoption
and there had been a “very marked improvement” in
the personal circumstances of the applicants prior to the High Court
judgment. The second applicant had managed to stay off alcohol since
July 2003 which was a very considerable achievement for one who had
had such a severe alcohol problem. N had strong attachments to both
of her parents, particularly her mother, both of whom faithfully
attended contact meetings with N.
4. The House of Lords' judgment
The applicants appealed to the House of Lords. On 12 July 2006, [2006] UKHL 36 ,
the House of Lords (by a majority of four to one, Baroness Hale of
Richmond dissenting) rejected the applicants' appeal. Lord Carswell
(with whom Lord Nicholls of Birkenhead, Lord Rodger of
Earlsferry and Lord Walker of Gestingthorpe agreed) stated that he
agreed with the trial judge that the Trust's response had been
proportionate in the pursuit of the legitimate aim of protecting the
welfare and interests of the child. In response to the applicants'
argument that the trial judge could not correctly hold that the
withholding of agreement was unreasonable when it was not known
whether post-adoption contact could be arranged, Lord Carswell
stated:
“The availability of post-adoption contact is, of
course, a relevant factor to be taken into account in deciding
whether to dispense with the parents' agreement and make a freeing
order, and the necessity to ascertain what and how much contact can
be arranged will vary from case to case. But evidence on that topic
cannot be regarded as a condition which is in law a sine qua non,
requiring to be satisfied before the judge can proceed.... [Counsel
for H., the second applicant] put the argument, as I understand his
submissions, in a modified form, that the availability of
post-adoption contact is a factor which ranks so high in importance
that unless there is sufficient evidence about it before him the
judge cannot be said to have had regard to all the necessary factors
in reaching a decision on dispensing with agreement and freeing for
adoption. This again appears to me to be elevating a matter of
evidence into a matter of law. It is for the judge to have regard to
the availability of contact in coming to his decision, but so long as
he has evidence on which he can properly make his decision and he has
not misdirected himself or been in error in respect of other factors
to which he should have regard, his decision will be sustainable
unless he is 'plainly wrong'.”
Lord Carswell then reviewed the relevant domestic case-law on
reasonableness, including the decision in Re C that a
reasonable parent pays regard to the welfare of his or her child (see
paragraph 46 below). He concluded that the trial judge had
appropriately applied this case-law, and observed:
“[The trial judge] took quite a strong line in
coming to and expressing his conclusions, but in my view these were
properly inside the bounds within which his determination must be
allowed to prevail. There was considerable evidence before him of the
risks that H might relapse and of the unhappy consequences which that
would have for N if she were living with her. It was a matter of
judgment whether these circumstances were such that the hypothetical
reasonable parents would give their agreement to adoption. The
majority of the Court of Appeal were of the opinion that it was a
finely balanced judgment, but that the judge's decision should
nevertheless stand, and in that I think that they were right.”
Baroness Hale of Richmond found that any reasonable parent would
be entitled to place great weight on the views of Professor
Triseliotis and were entitled to see what efforts were made to find
the right sort of placement for N before giving their consent. In
taking the view that the applicants could frustrate an adoption by
behaving so badly that no-one would agree to post-adoption contact,
the trial judge had placed undue weight on an irrelevant
consideration when deciding that the parents were unreasonably
withholding their consent. The evidence was very clear that contact
would only be in the best interests of the child if the applicants
behaved well and did not use it to undermine the placement. The
applicants had not sought to use their contact to undermine N's
placement. Nor, despite the view which he had formed of the
desirability of post adoption contact, did the trial judge consider
whether the court could, at that stage, promote this, for example by
preserving the parents' position after a freeing order.
Baroness Hale also observed:
“It is not enough for the court to decide in a
vacuum whether 'adoption' is in the best interests of the child. It
must decide what sort of adoption will best serve her interests. If
the court takes the view that some form of open adoption will be
best, then it will have to take that into account in deciding whether
it will accord with its most important consideration, the welfare of
the child, to make an order freeing the child for adoption before
there is any evidence available of the efforts made to secure the
right sort of adoptive placement and to prepare both families for it.
The court may, of course, take the view that the need to free the
child for adoption is so pressing that this should be done even if it
is not yet known whether an open adoption will be possible. But the
need to free the child for adoption is different from the need for
the child to be adopted. It may be premature to free a child for
adoption even though it would not be premature to make an adoption
order.”
She further considered that adoption practice in Northern Ireland
laboured under three misconceptions. The first was that that the
search for prospective adopters should not begin until the child has
been freed. The second was that it was not possible to run
proceedings, whether for adoption or for freeing, in such a way that
the parents and prospective adopters were able to hear and to
challenge one another's evidence. The third was that it was not
possible to consider the issue of post adoption contact until the
adoption application itself. A judge hearing a freeing application
could not make an order about contact after the adoption but that did
not mean that the issue of post adoption contact was not relevant to
whether or not the child should be freed for adoption.
In considering Article 8 of the Convention she stated:
“There is, so far as the parties to this case are
aware, no European jurisprudence questioning the principle of freeing
for adoption, or indeed compulsory adoption generally. The United
Kingdom is unusual amongst members of the Council of Europe in
permitting the total severance of family ties without parental
consent. (Professor Triseliotis thought that only Portugal and
perhaps one other European country allowed this.) It is, of course,
the most draconian interference with family life possible. That is
not to say that it can never be justified in the interests of the
child. The European Court has said that where the interests of the
child and the interests of the adults conflict, the interests of the
child must prevail: eg Yousef v The Netherlands [2003] 1 FLR 210, para 73. But it can be expected that the European Court would
scrutinise the relevance and sufficiency of the reasons given for
such a drastic interference with the same intensity with which it has
scrutinised severance decisions in other care cases: see, in
particular, P, C and S v United Kingdom [2002] 2 FLR 631,
para. 118. The margin of appreciation accorded to the national
authorities is correspondingly reduced. In a freeing application, the
question must be whether it is necessary and proportionate to sever
the links with the family of birth if a new family has not yet been
identified.”
B. Subsequent proceedings and the post-adoption contact
arrangements
The Trust matched N with suitable prospective adopters in
March 2006. By letter dated 13 October 2006, the Trust informed
the applicants that N's prospective adoptive parents had lodged an
application for an adoption order in the High Court. On 26 October
2006, the applicants wrote to the High Court opposing the granting of
the order.
On 15 January 2007, by direction of the High Court, the
applicants were joined as respondents in proceedings but their
participation was confined to the issues of post-adoption contact and
whether the proceedings should be stayed. On the same date, the High
Court also directed that the proceedings should not be stayed pending
the outcome of the present application before this Court. In the
written reasons for its judgment, given on 25 February 2008, the High
Court considered that there were advantages in both biological
parents and prospective adopters being involved in further
proceedings as to whether there should be post-adoption contact,
which the courts in Northern Ireland were to consider “with
fresh eyes” after Baroness Hale's dissenting judgment.
On 30 March 2007, an agreement was reached between the parties
concerning post-adoption contact. The post-adoption contact
arrangement provided for N to see her birth family three times per
year, accompanied throughout by her adoptive parents.
The matter was then adjourned for the hearing of the adoption
application. Since the applicants had only been joined to the
proceedings for the purposes of their application for a stay and to
be heard in connection with their application for post-adoption
contact, they were not permitted to participate further in the
proceedings. An adoption order was made on 3 April 2007.
C. The current position
The second applicant maintains that, with the exception of one
relapse in August 2010, she has remained sober since 2003. She has
received counselling and regularly attends AA meetings. The
Government maintained that she had suffered at least two relapses in
summer 2010. Counselling was also provided after T, H's fourteen year
daughter, was taken into foster care on 9 October 2010 (see paragraph
40 below) and when the domestic authorities were so concerned about
H's mental health that she was offered either inpatient treatment or
intensive support from their mental health team.
The applicants and O have contact with N three times a year. T, P and
HH are permitted to see N once a year, though the Government have
indicated that, when N intimated that she was upset as to the lack of
frequency of contact with T, arrangements were reviewed in order to
increase contact.
T was returned to the applicant's care in December 2007, after
five years in foster care. The Government maintain that she spoke to
social workers about her need to leave the applicants in summer 2010
and, after she attempted suicide, she was removed to foster care on 9
October 2010. After a further suicide attempt, T has been transferred
to inpatient psychiatric care. The applicants believe that T's mental
health difficulties are attributable to N's adoption. The Government
assert that the view of the professionals who are responsible for T's
care is that the impact of N's adoption on T has been partly due to
the second applicant's continuous promotion of her own views on N's
adoption to T and other difficulties in T's upbringing.
O
remains in the care of the applicants and there have never been any
proceedings in respect of him. For approximately two years, the
applicants also provided temporary foster care for the second
applicant's two nieces and her nephew. This arrangement was approved
by a different Trust, the Western Health and Social Care Trust. The
applicants maintain that this Trust was very complimentary of the
care they provided. The Government maintain that the Trust
responsible for the applicants' own children did not approve of this
temporary foster care and that care in fact ended due to problems in
the family.
HH has had two children. The second child, L, was made the subject of
an interim joint residence order by the Family Proceedings Court with
care to be shared between the applicants and L's paternal
grandmother. The applicants maintain that, in making that order,
the court would have had regard to L's welfare and would have had to
assess whether L was at risk by placement with the applicants. The
Government maintain that L's care was assumed by the paternal
grandparents in August 2010 and that the applicants no longer wish to
pursue a residence order application for L.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. General provisions
Article 3(1)(a) of the Children (Northern Ireland) Order 1995
(“the 1995 Order”), which provides that, where a
court determines any question with respect to the upbringing of a
child, the child's welfare shall be the court's paramount
consideration. Article 3(2) requires the court to have regard to the
general principle that any delay is likely to prejudice the welfare
of the child.
The
compatibility of these provisions with Article 8 of the Convention
was considered in AR v. Homefirst Community Trust [2005] NICA 8 where the Court of Appeal in Northern Ireland, found that, in a
case where a newborn baby had been removed from his mother's care
within a few days of his birth, the need to have the child's
situation settled should not be allowed to predominate to the extent
that the mother's rights under Article 8 of the Convention were
disregarded. The child's welfare was paramount but this did not mean
that a court should exclude the parent's Article 8 rights from its
consideration. This was applied in Homefirst Community Health and
Social Services Trust v. SN [2005] NICA 14 to a “freeing
order” (see section 2 below). In that case, the mother's
child was taken from her care four months after his birth. She
underwent therapy for personality and mental health difficulties. The
Court of Appeal found that, had the Trust in that case been fully
cognisant of the mother's rights under Article 8, it should have
given her a further opportunity to prove herself through therapy.
Despite the progress she had made, at the time of the court's
judgment her son had been settled with prospective adopters for
nearly three years and thus it was in the child's best interest that
he should be freed for adoption. In those circumstances, SN was
withholding her consent unreasonably.
Article 18(1)(b) of the 1995 Order provides that it shall be the duty
of every authority, so far as it is consistent with its duty to
safeguard and promote the welfare of children who are in need, to
promote the upbringing of such children by their families. The
equivalent provision for England and Wales, section 17 of the
Children Act 1989, has been interpreted in England and Wales as
creating a strong supposition that it is in the interests of the
child to be brought up by his natural parents (Re W (A Minor)
(Residence Order) [1993] 2 FLR 625). When a child is a baby the
assumption is that it should remain with its mother (Re W (A
Minor) (Residence Order) [1992] 2 FLR 332.
B. Freeing orders
Article 9 of the Adoption (Northern Ireland) Order 1987 (“the
1987 Order”) provides:
“In deciding on any course of action in relation
to the adoption of a child, a court or adoption agency shall regard
the welfare of the child as the most important consideration and
shall—
(a) have regard to all the circumstances, full
consideration being given to—
(i) the need to be satisfied that adoption, or adoption
by a particular person or persons, will be in the best interests of
the child; and
(ii) the need to safeguard and promote the welfare of
the child throughout his childhood; and
(iii) the importance of providing the child with a
stable and harmonious home; and
(b) so far as practicable, first ascertain the wishes
and feelings of the child regarding the decision and give due
consideration to them, having regard to his age and understanding.
Article 18 of the 1987 Order provides that where, on an
application by an adoption agency, an authorised court is satisfied
in the case of each parent or guardian of a child that his agreement
to the making of an adoption order should be dispensed with on a
ground specified in Article 16(2) of the Order, the court shall
make an order declaring the child free for adoption. The grounds in
Article 16(2) include when the parent or guardian is withholding his
agreement unreasonably.
In
determining whether the parent is withholding his agreement
unreasonably, the court must apply an objective test. In Re W (an
infant) [1971] A.C. 682, it was held by the House of Lords that
although welfare of the child was the test per se, the fact
that a reasonable parent does pay regard to the welfare of his child
must enter into the question of reasonableness as a relevant factor.
In Re
C (A Minor) (Adoption: Parental Agreement: Contact) [1993] FLR
268 it was held by the Court of Appeal in England and Wales that
reasonableness could be determined by the judge asking himself
“whether, having regard to the evidence and applying the
current values of our society, the advantages of adoption for the
welfare of the child appear sufficiently strong to justify overriding
the views and interests of the objecting parent or parents.”
In Re
P (Adoption: Freeing Order) [1994] 2 FLR 1000 it was held that,
when deciding whether to make a freeing order when there is no
guarantee of post-adoption contact, it was appropriate for a judge to
decide: (i) to make no freeing order and decide whether to dispense
with consent at the later stage of an application for an adoption
order; (ii) to make an order because adoption was more important than
contact; or (iii) to decide that contact was so important that, if
post-adoption contact was not possible, long-term foster care was
appropriate and thus that no freeing order should be made.
Guidance
by the Department of Health and Social Services for England and Wales
that prospective adopters be identified before the date of the final
care hearing was endorsed by the High Court in Northern Ireland in Re
Z and T (freeing order application) [2005] NIFam 6.
Article 18(2) of the 1987 Order provides that no application
shall be made unless the child is in the care of an adoption agency
and the child is already placed for adoption or the court is
satisfied that it is likely that the child will be placed for
adoption. An adoption agency may be a Health and Social Services
Trust. By Article 18(3) read with Article 12(3) of the 1987 Order,
such a “freeing order” acts to extinguish the parental
responsibility of the parents. Rule 4A.4(2) of the Family Proceedings
Rules (Northern Ireland) 1996 (“the 1996 Rules”) requires
that the respondents to an application for a freeing order shall
include, inter alia, each parent or guardian of the child.
C. Adoption orders
Article 12 of the 1987 Order provides for an adoption order to be
made by an authorised court on the application of the adopters. When
such an application is made, Rule 4A.15(1) of the 1996 Rules
specifies that the respondents shall include each parent or guardian
of the child, unless the child is free for adoption. Rule 4A.16
provides that where the child is not free for adoption and the
applicant intends to request the court to dispense with the agreement
of a parent or guardian of the child, such a request shall be
included in the application. The grounds for dispensing with
agreement are those contained in Article 16(2) of the 1987 Order. By
Rules 4A20 and 23(1), of the 1996 Rules, as respondents the parents
are served with notice of any hearing and can attend and be heard on
whether the adoption order should be made.
By
Article 12(3) of the 1987 Order, the making of an adoption order
operates to extinguish the parental responsibility which any person
has for the child immediately before the making of the order.
Article
13(1) and (2) require a child to live with his or her prospective
adopters before an adoption order is made.
D. Statutory changes in England and Wales
The Adoption and Children Act 2002 replaced freeing orders in
England and Wales with placement orders. A placement order can only
be made with the consent of the parent or guardian, unless the court
considers that consent should be dispensed with (section 21). In
contrast to Article 18 of the 1987 Order, a placement order can be
made without the need to satisfy the court that it is likely the
child will be placed for adoption. There is no requirement that
prospective adopters be identified before a placement order is made
(see Re T (children: placement order) [2008] EWCA Civ 248;
Re P (children) (adoption: parental consent) [2008] EWCA Civ 535).
Placement
orders do not terminate parental responsibility until an adoption
order is made (section 46(2)) but, if a placement order is made, the
biological parents may not oppose the making of an adoption order
without the leave of the court. Leave is only given if there has been
a change in circumstances since the placement order was made (section
47(7)).
Similar provisions apply in Scotland under the Adoption and Children
(Scotland) Act 2007.
III. EUROPEAN CONVENTION ON THE ADOPTION OF CHILDREN (REVISED)
Article 5 of the European Convention on the Adoption of Children,
Strasbourg, 2008, where relevant, provides as follows:
“1 Subject to paragraphs 2 to 5 of this article,
an adoption shall not be granted unless at least the following
consents to the adoption have been given and not withdrawn:
a the consent of the mother and the father; or if there
is neither father nor mother to consent, the consent of any person or
body who is entitled to consent in their place;
b the consent of the child considered by law as having
sufficient understanding; a child shall be considered as having
sufficient understanding on attaining an age which shall be
prescribed by law and shall not be more than 14 years;
c the consent of the spouse or registered partner of
the adopter.
2 The persons whose consent is required for adoption
must have been counselled as may be necessary and duly informed of
the effects of their consent, in particular whether or not an
adoption will result in the termination of the legal relationship
between the child and his or her family of origin. The consent must
have been given freely, in the required legal form, and expressed or
evidenced in writing.
3 The competent authority shall not dispense with the
consent or overrule the refusal to consent of any person or body
mentioned in paragraph 1 save on exceptional grounds determined by
law. However, the consent of a child who suffers from a disability
preventing the expression of a valid consent may be dispensed with.
4 If the father or mother is not a holder of parental
responsibility in respect of the child, or at least of the right to
consent to an adoption, the law may provide that it shall not be
necessary to obtain his or her consent...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The applicants complained that the freeing order was a
disproportionate interference with their rights guaranteed by Article
8 of the Convention because the domestic authorities failed to keep
their assessment of their family situation under review and because
the reasons given by the trial judge were neither relevant nor
sufficient. The applicants also argued that, procedurally, it was
improper for a freeing order to have been made in advance of an
adoption order. If the freeing order had been refused, the applicants
would have been able to participate at the adoption order hearing.
Article
8 of the Convention provides as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms
of others.”
The Government contested those arguments.
A. Admissibility: the Government's preliminary objection as to
victim status
1. The parties' submissions
The Government submitted that, in light of the agreement on
post-adoption contact of 30 March 2007, the applicants were no longer
victims for the purposes of Article 34 of the Convention. They had
received contact on the terms recommended by Professor Triseliotis
and had not been prejudiced by the approach taken by the Trust, which
found suitable adopters who agreed to post-adoption contact. The
agreement had worked as intended so the applicants had been afforded
all that they could reasonably have wanted or expected.
The applicants submitted that they remained victims after the
agreement of 30 March 2007. They had felt constrained to accept three
contact visits per year because, by this stage, they were former
parents with no rights. The agreement was just that, and not an order
of the court. No acknowledgment or redress had ever been
provided by the United Kingdom. In any event, they remained
victims of the violations which had occurred between the making of
the freeing order on 31 May 2005 and the date of the
agreement.
2. The Court's assessment
The Court considers that the Government's preliminary objection has
not been made out. A decision or measure favourable to the applicant
is not in principle sufficient to deprive him of his status as a
“victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Dalban v. Romania
[GC], no. 28114/95, BAILII: [1999] ECHR 74, § 44, ECHR 1999-VI, and Constantinescu v.
Romania, no. 28871/95, BAILII: [2000] ECHR 352, § 40, ECHR 2000-VIII). In the present
case, the applicants' complaints have a substantive and a procedural
dimension. Substantively, they complain that the Trust failed to
review its assessment and the reasons for the freeing order were
flawed. Procedurally, they complain that the two-stage procedure of
seeking a freeing order then, at a later stage, an adoption order,
was not appropriate in their case. The agreement they made with
N's prospective adopters did not amount to acknowledgment of or
redress for their complaint that the Trust should not have acted in
the way it did or that the freeing order should not have been made:
the agreement had no effect on the validity of that order. Nor did
the agreement provide any redress for their complaint that the
two-stage procedure should not have been followed in their case: the
agreement had no effect on the procedure followed, which culminated
in the making of an adoption order on 3 April 2007.
Accordingly, the Court rejects the Government's preliminary objection
in respect of the applicants' victim status. The applicants'
Article 8 complaints are not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and they are not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
1. The parties' submissions
a. The Government
i. The procedural requirements of Article 8
The Government submitted that the proceedings were fair. The
two-stage procedure of freeing N for adoption and then seeking an
adoption order was compatible with Article 8. The aim was to resolve
issues of consent at an early stage, thus providing clarity and
certainty for all concerned. This often required courts to proceed
without knowing which form of adoption was possible but it was
recognised that it was easier to find adoptive parents after a child
had been freed. It would sometimes be undesirable for a court to
consider adoption in the abstract but there were also cases where the
need to free the child was so pressing that it should be done even
without knowing what form adoption would take. The domestic courts
had taken such a view with N. It was open to them on the evidence to
do so. The applicants had participated throughout the proceedings,
(in contrast with B. v. the United Kingdom, 8 July 1987, BAILII: [1987] ECHR 12,
Series A no. 121) and had been represented throughout (in contrast
with P., C. and S. v. the United Kingdom, no.
56547/00, BAILII: [2002] ECHR 604, ECHR 2002 VI). Even after the freeing order they were
joined to proceedings for the adoption order hearing (in contrast
with X v. Croatia, no. 11223/04, 17 July 2008, BAILII: [2008] ECHR 641). The present
case was therefore much closer to Scott v. the United Kingdom
(dec.), no. 34745/97, 8 February 2000, BAILII: [2000] ECHR 698, where the Court had
upheld a decision to free the child of an alcoholic mother for
adoption because the mother had had the opportunity to participate in
the proceedings.
The Government further relied on the approach taken by the
majority of the House of Lords. They made the following five points
in respect of Baroness Hale's dissent. First, it was incorrect that
Article 18(2) contemplated, or even expected, that prospective
adopters would be found before a freeing order was made: it only
required that it be likely that the child be placed for adoption. The
virtue of a freeing order was that it widened the choice of
prospective adopters to those who would only contemplate adoption if
it was likely to be endorsed by the court. Second, it was incorrect
to state that, in Northern Ireland, the search for prospective
adopters only took place after a freeing order was made; in the
present case, this had been done by looking for carers who had been
approved as both foster and adoptive carers. Third, there were ways
in Northern Ireland in which both birth parents and prospective
adopters could participate simultaneously in child care proceedings.
Fourth, in Northern Ireland, the courts considered issues of
post-adoption contact before an application for an adoption order was
made: for example, such an approach had been taken in Re Z. and T.
(see paragraph 46 above). Fifth, even Baroness Hale had accepted
that there were cases in which the need to free a child for adoption
was so pressing that a freeing order should be made without knowing
what options were available.
ii. The substantive requirements of Article 8
The Government submitted that, taken as a whole, the reasons given by
the Trust and the domestic courts were relevant and sufficient for
the purposes of Article 8 § 2 and thus the approach taken in
respect of N was proportionate. They accepted that Article 8 might
impose an obligation to take positive rehabilitative steps for
applicants (K.A. v. Finland, no. 27751/95, BAILII: [2003] ECHR 27, 14 January
2003). They also accepted that the second applicant's underlying
personality disorder was only diagnosed in 2004. However, in the High
Court, the trial judge had concluded that the Trust had taken all
reasonable steps to afford her professional and expert help. In any
event, by the time of the freeing order hearing, the timescale for
treating the second applicant's problems was too long for N, who was
in urgent need of permanent care. Nor could the Trust be criticised
for failing to reassess the applicants' situation: it had already
tried and failed to return N to her parents. There had been recurring
difficulties with their family life, including relapses into alcohol
abuse and intermittent domestic violence. The Trust had been required
to decide whether, in light of those difficulties, the risks to N
outweighed the progress made by the applicants.
There was no difference between the Trust's approach to N and the
other children in the applicants' care. O had stayed in the care of
the applicants because of the second applicant's prolonged sobriety
and a more supportive relationship between the applicants. This had
led to a more favourable assessment by the Trust but did not
undermine its conclusions in respect of N. HH and P had returned home
aged fourteen and thirteen respectively. They did so of their own
volition, contrary to the Trust's plans. In view of their age, the
risks to them were more easily monitored than N who, at the material
time, was not of school age.
In light of the evidence of Professor Triseliotis, the Trust's
position changed significantly in the course of the domestic
proceedings from opposing post-adoption contact to accepting that
contact 3-4 times a year would be optimal. This had been endorsed by
the High Court, which had considered fairly all the expert evidence
before it and had the advantage of hearing live evidence from all the
witnesses. It had properly considered all relevant domestic and
Convention case-law and had been satisfied that the freeing order was
a proportionate means of ensuring N's welfare. Although the Court of
Appeal expressed some disagreement with the trial judge's findings,
all three members concurred that the freeing order was in N's best
interests and was proportionate.
It
was also legitimate for the High Court to find that the applicants
had withheld their agreement unreasonably. This was consistent with
its duty to prioritise the rights of N. Any alternative conclusion
would have delayed matters, forced a contested adoption hearing and
reduced the chances of finding adoptive parents. Even if prospective
adopters who agreed to post-adoption contact had been found at an
early stage, the applicants would still have had no guarantees as to
post-adoption contact since the adoption plans could have gone awry.
b. The applicants
i. The procedural requirements of Article 8
The applicants underlined that they were not challenging the
two-stage procedure in abstracto but rather submitted that
it was inappropriate in their case. Refusal of the freeing order and
an adoption order hearing at which both biological and adoptive
parents could have participated would have provided equal protection
to N but greater protection of the applicants' rights. Furthermore,
by the time of the adoption hearing, the second applicant would have
been able to demonstrate the progress she had made in remaining sober
for three years and she would have been able to demonstrate more
clearly how disproportionate it was to remove N.
Alternatively, a freeing order should only have been made once
prospective adopters had been found and their views made known. As it
was, there had been no protection from the serious harm that would
have resulted had there been no post-adoption contact. Overriding
their consent would only have been fair and proportionate if it had
been shown that the Trust had extensively searched for adopters who
would support contact; simply assuming that the Trust had tried and
failed to find such adopters was disproportionate and prevented the
applicants from arguing either that a proper search had not been
carried out or that prospective adopters were acting unreasonably in
not consenting to contact. Moreover, the decisions of the domestic
courts did not accord with the approach taken by the courts of
Northern Ireland to the balance between Article 8 interests of
parents and the welfare of the child: there were strong similarities
between their case and that of AR and Re Z and T
(see paragraphs 43 and 46 above). The Guidance endorsed in Re
Z and T should have also applied in their case.
It was not for the Government to submit that the two stage freeing
and adoption procedure was compatible with Article 8; it was more
appropriate for the Court to consider how that procedure had been
applied in the present case. The applicants relied on Baroness Hale's
conclusion that it was not enough to decide in a vacuum whether
adoption was in the best interests of the child and that the need to
free a child for adoption was different from the need for the child
to be adopted (see paragraph 31 above). It was also wrong to submit,
as the Government had done, that the lack of a freeing order would
have made it harder to find suitable adoptive parents; in reality,
adoptive parents had been found who were amenable to post-adoption
contact. The search for adoptive parents had to begin at some stage
and there was no justification for the Trust's failure to look in
earnest for suitable adoptive parents prior to seeking the freeing
order. Baroness Hale had been correct to observe that the Trust had
done little or nothing prior to the freeing order to find prospective
adopters and certainly done nothing to find adopters who would agree
to contact. Her comments as to the misconceptions which prevailed in
Northern Ireland were made after hearing full argument on the issues
and it was not open to the Government to challenge her conclusions
before this Court.
ii. The substantive requirements of Article 8
The
applicants considered that the Trust had focused rigidly on adoption
as the only option for N; it had made this decision even before
considering whether she could be placed with family members such as
MRH. The Trust had continually failed to reassess its plan for N in
light of the progress made by the applicants in caring for their
other children. They accepted that the Trust had changed its
position in the course of the proceedings but not to the stage of
withdrawing its application for a freeing order in preference for a
contested adoption order hearing.
The applicants further submitted that the freeing order was
disproportionate. Although they had been legally represented and able
to participate in the proceedings, this was of no value if their
views were not considered properly. This had not been done. The
reasons given for the freeing order by the trial judge were neither
relevant nor sufficient. His reasons were based on his
conclusion that there was no prospect of the second applicant
remaining free from alcohol; the Court of Appeal had disagreed with
this conclusion and had only been constrained by their limited power
to interfere only if the trial judge's decision was “plainly
wrong”. The trial judge's conclusion was also based on the
Trust's submission that any treatment of the second applicant's
underlying condition would take too long but it was the Trust's delay
in identifying her condition and taking steps to treat her that was
the source of the problem.
The applicants also submitted that Professor Tresiliotis had only
stated that adoption would be in the best interests of N, and would
only be more important than post-adoption contact, if all reasonable
steps had been taken to find suitable adopters but none had been
found within six months. The High Court, in not evaluating the
efforts made by the Trust after six months and proceeding directly to
the freeing order, had not followed this advice. It had also erred in
deciding that the applicants were unreasonably withholding their
consent: if parents reasonably saw a prospect of rehabilitation, they
could not be criticised for not consenting to an adoption when that
adoption might have put an end to any prospect of rehabilitation.
Thus, when the freeing order clearly endangered contact between them
and N, the applicants were justified in refusing to consent to the
order without proper guarantees that contact would be maintained.
Their care of O was instructive. He had not been the subject of any
care proceedings since birth and no concerns had been raised as to
his welfare. He was born at the same time as the final decisions had
been taken in respect of N; it was difficult to reconcile the
authorities' attitudes towards him and N. This undermined the
relevancy and sufficiency of their reasons for making freeing and
adoption orders for N. It was also significant that HH and P, who had
initially been unsettled when they returned home in 2003 and 2005,
were not thereafter removed from the family home.
2. The Court's assessment
There does not appear to be any dispute between the parties that the
domestic proceeding in the present care amounted to an interference
with the applicants' family life within the meaning of Article 8. Nor
is it disputed that the interference was in accordance with the law
and pursued a legitimate aim, the protection of N's rights and
well-being (see X. v. Croatia, cited above, § 46).
The principal issue the Court must resolve is whether the domestic
authorities' actions were necessary in a democratic society. The
decisive issue is whether those actions struck a fair balance between
the competing interests which were at stake in the domestic
proceedings.
The Court has observed that the applicants' complaints relate to both
the procedural and substantive requirements of Article 8 (see
paragraph 57 above) and it will examine each in turn. At the outset,
however, the Court wishes to underline that, in all decisions
concerning children, their best interests must be paramount. As the
Grand Chamber recently observed in Neulinger and Shuruk v.
Switzerland [GC], no. 41615/07, BAILII: [2010] ECHR 1053, § 136, 6 July 2010:
“The child's interest comprises two limbs. On the
one hand, it dictates that the child's ties with its family must be
maintained, except in cases where the family has proved particularly
unfit. It follows that family ties may only be severed in very
exceptional circumstances and that everything must be done to
preserve personal relations and, if and when appropriate, to
'rebuild' the family [Gnahoré v. France, no. 40031/98, BAILII: [2000] ECHR 420,
§ 59, ECHR 2000 IX] On the other hand, it is clearly also
in the child's interest to ensure its development in a sound
environment, and a parent cannot be entitled under Article 8 to have
such measures taken as would harm the child's health and development
(see, among many other authorities, Elsholz v. Germany [GC],
no. 25735/94, BAILII: [2000] ECHR 371, § 50, ECHR 2000 VIII, and Maršálek
v. the Czech Republic, no. 8153/04, BAILII: [2006] ECHR 321, § 71, 4 April
2006).”
Although Neulinger and Shuruk concerned the relationship
between Article 8 and the Hague Convention on Civil Aspects of
International Child Abduction, the Court considers the principles set
out above are equally applicable to domestic care and adoption
proceedings. On that basis, it will examine first the procedural
dimension to the applicants' complaints and then the substantive
dimension (see Scott, cited above).
a. The procedural requirements of Article 8
The Court would recall that, although Article 8 contains no explicit
procedural requirements, the decision-making process involved in
measures of interference must be fair and such as to afford due
respect to the interests safeguarded by Article 8. What 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 (see W. v. the United
Kingdom, judgment of 8 July 1987, BAILII: [1987] ECHR 17, Series A no. 121-A, pp. 28-29,
§§ 62 and 64, and T.P. and K.M. v. the United Kingdom
[GC], no. 28945/95, BAILII: [2001] ECHR 332, § 72, ECHR 2001-V (extracts)).
Those principles apply generally in proceedings involving children
but they apply with greater force when those proceedings may
culminate in a child being taken from her biological parents and
placed for adoption. As the Court stated in X. v. Croatia
(at paragraph 47 of its judgment):
“[I]t is an interference of a very serious order
to split up a family. The Court recognises that, in reaching
decisions in so sensitive an area, local authorities are faced with a
task that is extremely difficult. To require them to follow on each
occasion an inflexible procedure would only add to their problems.
They must therefore be allowed a measure of discretion in this
respect. On the other hand, predominant in any consideration of this
aspect of the present case must be the fact that the decisions may
well prove to be irreversible as in a case where a child has been
taken away from his parents and freed for adoption. This is
accordingly a domain in which there is an even greater call than
usual for protection against arbitrary interferences (see B. v.
the United Kingdom, judgment of 8 July 1987, BAILII: [1987] ECHR 12, Series A no. 121,
pp. 72 and 73., § 63).”
In respect of the procedures followed by the domestic courts in
the present case, the Court first observes that the applicants were
legally represented through the freeing order proceedings in the High
Court and in the subsequent appeal proceedings before the Court of
Appeal and House of Lords. They were able to give evidence and to
call witnesses and experts to testify on their behalf. It is clear
that, at least as far as the freeing order proceedings were
concerned, they were able to participate fully and to make their
views known. The Court acknowledges that the applicants' complaint
goes further and questions the appropriateness of the two-stage
procedure in their case. The Court agrees with the applicants that it
is not its task to review in abstracto the compatibility of
the two-stage procedure with Article 8. It is, however, of some
relevance to the Court's assessment that there are sound practical
reasons for the two-stage procedure. It is not an easy task to find
suitable adoptive parents for a child, particularly when that child
has already formed emotional ties to his or her biological parents.
Even where suitable adoptive parents can be found, there may be a
reluctance on their part to consider adoption when the biological
parents are opposed to such and where there is a possibility that a
final adoption order will not be made. If freeing a child makes it
easier to find adoptive parents and if there is a pressing need to
place that child for adoption, then seeking a freeing order may well
be the best means of safeguarding his or her best interests.
Moreover, it is clear from the relevant Northern Irish legislation
that freeing orders are not made lightly or without reference to
clear and well-defined criteria. By Article 3(1)(a) of the 1995
Order, a child's welfare should be the domestic court's paramount
consideration (see paragraph 43 above). Article 9 of the 1987 Order
reiterates that principle and further directs the court to give full
consideration to the need to safeguard and promote the welfare of the
child; the importance of providing the child with a stable and
harmonious home; and the wishes and feelings of the child
(see paragraph 45 above). Article 18(2) further requires that
the court be satisfied that it is likely that a child will be placed
for adoption (or has already been so placed), a more exacting
requirement that the current statutory scheme in England and Wales
(see paragraphs 47 and 49 above). Although it would clearly be more
advantageous to the biological parents if they were to retain the
right to participate to the end of adoption proceedings (that is, to
have the right to participate in the second, adoption order stage),
their interests must be balanced against the interests of the child
(see Sommerfeld v. Germany [GC], no. 31871/96, BAILII: [2003] ECHR 341 ,
§§ 62-64, ECHR 2003 VIII (extracts). If it
is in the child's interests to be adopted, and if the chances of a
successful adoption would be maximised by a freeing order, then the
interests of the biological parents must inevitably give way to that
of the child. The Northern Ireland statutory scheme, as interpreted
by the Northern Irish courts, allows for that balance to be struck
between those interests in a manner which shows appropriate respect
for all those concerned. As such, it is capable of being applied
compatibly with Article 8.
The
Court further considers that the freeing order procedure, as it
applied in the present case, was compatible with Article 8. It is not
persuaded by the applicants' submission that refusing the freeing
order and thus allowing them to participate in the adoption order
hearing would necessarily have provided equal protection to N but
greater protection of their rights. The applicants' reasons for
resisting the freeing order were first, their wish to rely on the
second applicant's prolonged sobriety and second, the uncertainty as
to whether there would be post-adoption contact. However, the very
reason why the trial judge had made the freeing order was his
conclusion that there was a pressing need for N to be adopted.
In reaching that conclusion, the trial judge also found that the
timescale for addressing the second applicant's alcohol problem was
too long to be in N's interests and that the benefits of adoption
outweighed the benefits of post-adoption contact. It is unclear,
therefore, that the reasons advanced by the applicants to resist the
adoption would have had any greater resonance had they been able to
rely on them at the adoption order stage of proceedings. However,
even assuming that they would, it is clear to the Court that, by the
freeing order stage of proceedings, the interests of the applicants
in further participating in the proceedings had to give way to N's
interests in being placed for adoption.
For
the same reason, the Court is not convinced that a freeing order
should only have been made once prospective adopters had been found
and their views made known. This course of action may have provided
greater procedural protection to the applicants because it would have
enabled them to better resist the adoption by arguing either that the
Trust had not carried out a proper search for prospective adopters or
that the prospective adopters were being unreasonable in refusing
post-adoption contact. However, the trial judge was well aware of
this aspect of the applicants' case. He was also aware of the
difficulties in proceeding without a clear picture as to the identity
or attitude of prospective adopters. Some weight must be attached to
his finding that, even if prospective adopters who would agree to
post-adoption contact could not be found, the benefits of adoption
outweighed those of post-adoption contact. On the basis of the
evidence before him (and in particular the evidence of Professor
Triseliotis), this was a conclusion he was entitled to draw and there
was nothing arbitrary or unfair in his conclusion that N's adoption
was best achieved by making a freeing order. Moreover, the Court also
considers that due weight must be given to the evolution in the
Trust's position in the course of the proceedings before the High
Court. They had initially been opposed to post-adoption contact but
later indicated that they would look for prospective adopters who
would meet N's need for post-adoption contact. In the event, the
Trust were able to find adopters who did agree to contact. In the
Court's view, the Trust's efforts to accommodate the applicants'
concerns goes some way to mitigating the effects of the High Court's
decision to make the freeing order without knowing the views of
prospective adopters. Finally, the subsequent proceedings in the case
indicate that, even after the freeing order had been made and upheld
on appeal, the applicants were able to participate in the proceedings
and to make representations as to the issue of post-adoption contact
(see paragraphs 34- 37 above). Indeed, they were able to do so
because, as the High Court observed in its judgment of 25 February
2008, the Northern Irish courts were to consider the issue of
post-adoption contact with “fresh eyes” after Baroness
Hale's dissenting judgment in the House of Lords (see paragraph 35
above).
For
these reasons, the Court considers that the applicants have not
established that the decision-making process was unfair or that the
approach taken by the Trust and the domestic courts failed to involve
the applicants to a degree sufficient to provide them with the
requisite protection of their interests.
b. The substantive requirements of Article 8
In
assessing whether the freeing order was a disproportionate
interference with the applicants' Article 8 rights, the Court must
consider whether, in the light of the case as a whole, the reasons
adduced to justify this measure were relevant and sufficient for the
purposes of paragraph 2 of Article 8 of the Convention (see, among
other authorities, K and T. v. Finland [GC], no.
25702/94, BAILII: [2001] ECHR 465, § 154, ECHR 2001-VII).
In
carrying out that assessment, it must be borne in mind that the
national authorities have the benefit of direct contact with all the
persons concerned, often at the very stage when care measures are
being envisaged or immediately after their implementation. The
Court's task is not to substitute itself for the domestic authorities
in the exercise of their responsibilities for the regulation of the
public care of children and the rights of parents whose children have
been taken into care, but rather to review, in the light of the
Convention, the decisions taken by those authorities in the exercise
of their power of appreciation (see Scozzari and Giunta v.
Italy [GC], nos. 39221/98 and 41963/98, BAILII: [2000] ECHR 372, § 201, ECHR
2000 VIII; Johansen v. Norway, 7 August 1996, BAILII: [1996] ECHR 31, § 64,
Reports of Judgments and Decisions 1996 III ). Those
considerations also apply to the making of adoption orders and issues
of post-adoption contact (G.H. B. v. the United Kingdom (dec.),
no. 42455/98, BAILII: [2000] ECHR 711, 4 May 2000).
The
Court would also recall that, while national authorities enjoy a wide
margin of appreciation in deciding whether a child should be taken
into care, stricter scrutiny is called for as regards any further
limitations, such as restrictions placed by those authorities on
parental rights of access, and as regards any legal safeguards
designed to secure the effective protection of the right of parents
and children to respect for their family life. Such further
limitations entail the danger that the family relations between a
young child and one or both parents would be effectively curtailed
(see Elsholz v. Germany [GC], no. 25735/94, BAILII: [2000] ECHR 371, § 49,
ECHR 2000-VIII, and Kutzner v. Germany, no. 46544/99, BAILII: [2002] ECHR 160, §
67, ECHR 2002 I). For these reasons, measures which deprive
biological parents of the parental responsibilities and authorise
adoption should only be applied in exceptional circumstances and can
only be justified if they are motivated by an overriding requirement
pertaining to the child's best interests (see Aune v. Norway,
no. 52502/07, BAILII: [2010] ECHR 1994, § 66, 28 October 2010;
Johansen, cited above, § 78 and, mutatis
mutandis, P., C. and S. v. the United
Kingdom, no. 56547/00, BAILII: [2002] ECHR 604, § 118, ECHR 2002 VI).
However, mistaken judgments or assessments by professionals do not
per se
render childcare measures incompatible with the requirements of
Article 8 of the Convention. The authorities, both medical and
social, have duties to protect children and cannot be held liable
every time genuine and reasonably held concerns about the safety of
children vis à vis
members of their family are proved, retrospectively, to have been
misguided (R.K. and A.K. v. the United Kingdom, no.
38000/05, BAILII: [2008] ECHR 1889, § 36, 30 September 2008).
Turning
to the circumstances of the present case, the Court considers it
necessary to examine the applicants' submission in respect of the
Trust before considering their submissions in respect of the reasons
given by the domestic courts for the freeing order.
In respect of the actions of the Trust, the Court does not consider
that the applicants' argument that the Trust failed to keep its plans
for N under review is supported by the evidence before it. From the
chronology set out at paragraphs 10–13 above, the Court is
satisfied that the Trust had not decided irrevocably to have N placed
for adoption without first considering the possibility of placing her
with MRH. The initial care plan submitted by the Trust with its
application for a care order contemplated adoption but did not commit
it to pursuing only adoption. The Permanency Panel, in referring N to
the Adoption Panel on 20 August 2003, declined to make any
recommendations on adoption. The LAC review of 4 September 2003
decided simultaneously to refer N to the Adoption Panel and to have a
kinship assessment completed on MRH. It may well be that the Trust
was prompted to carry out the kinship assessment by the greater
interest shown by MRH in looking after N, but the decision to carry
out the assessment was taken before MRH had taken the formal step of
applying for a residence order on 23 September 2003. The result of
that assessment showed that the Trust had good reason to reject the
possibility of N being placed with MRH and the applicants have not
sought to show that, before the application for the care order was
made, any other family member had come forward as an alternative
carer. Some weight must be attached to the Family Judge's decision to
grant the Trust's care order application, refuse MRH's residence
order application and approve the Trust's plan to reduce gradually
N's contact with her family. The Court also considers that, in light
of the second applicant's previous relapses, the Trust was entitled
to maintain its application for a freeing order and to leave it for
the court, in deciding on that application, to consider what, if any,
progress had been made by the second applicant at that time. The
Trust's willingness to change its position on post-adoption contact
in the course of the freeing order proceedings supports the
conclusion that it kept its position on adoption under review
throughout the proceedings.
The
Court now turns to the domestic courts' reasons for the freeing
order. It observes that the applicants accept that the trial judge's
reasons for making the freeing order were based on his conclusion
that there was no prospect of the second applicant remaining free
from alcohol. However, they place greater emphasis on the Court of
Appeal's disagreement with this conclusion, the consequence of which,
they submit, is that the trial judge's reasons were neither relevant
nor sufficient.
The
Court considers that this submission is based on an unduly narrow
reading of the judgments of the trial judge and the Court of Appeal.
The trial judge's judgment was also based on his assessment that the
second applicant had attempted to minimise domestic violence in the
household and that her problems were not limited to alcohol abuse but
included the personality difficulties that had been diagnosed in the
psychiatric report of 22 April 2004 (see paragraph 14 above). Having
identified these difficulties he went on to consider the
appropriateness of further treatment. He concluded that the
Trust had taken all reasonable steps to help the applicant and that
the timescale for any further help would be too long and would
endanger N's welfare. In this context, the trial judge's conclusion
that N's welfare could not be sacrificed to the need to address the
second applicant's problem with alcohol was both a relevant and
sufficient reason for rejecting the applicants' submission that the
freeing order should not be made because of the second applicant's
sobriety. In addition, while it is true that the Court of Appeal took
a more optimistic view of the second applicant's attempts to remain
sober, all three members of the court agreed that adoption was in N's
best interests. The majority also found that, even if there was a
greater probability of the second applicant remaining sober than the
trial judge had found, the possibility of a relapse could not be
excluded and the evidence was that any such relapse would be
“catastrophic” for N. When read in conjunction with Lord
Justice Nicholson's further observations as to the critical age of N
(quoted at paragraph 25 above), these reasons are also relevant and
sufficient for the purposes of Article 8 and complement those given
by the trial judge.
This
conclusion is not affected by the applicants' submission that proper
weight should be attached to the care they have been able to provide
to O. Although it is instructive that no concerns have been expressed
by the domestic authorities about O, it is also the case that the
needs and interests of children, even children in the same family,
may vary greatly according to their age. The domestic authorities
were entitled to make different decisions as to the care of all of
the children concerned in this case and to find that that N's age
meant that adoption was in her best interests. Nor would it be
appropriate to have regard only to the care the applicants have given
to O: it is an unfortunate feature of this case that the subsequent
difficulties which the applicants have had in caring for their other
children would appear to justify the concerns of the domestic
authorities which led them to remove N from the family home and place
her for adoption. The domestic authorities, in seeking to protect the
welfare of N and her siblings, have been required to respond to a
complex and at times uncertain family situation. The Trust in
particular, has had the benefit of long and close contact with the
family and, for that reason, must enjoy a measure of discretion in
its response (W., cited above, § 62). There is nothing to
indicate that it has exercised improperly that discretion or that its
concerns for N's welfare were not genuine or reasonable.
On the issue of post-adoption contact, the Court finds some force in
the applicants' submission that the High Court should have followed
Professor Triseliotis's advice and given the Trust six months to find
suitable adopters before making the freeing order: it is not apparent
from the High Court's judgment why this course of action was
rejected. However, in the Court's view, any failing on the part of
the High Court was remedied by the approach taken by the Court of
Appeal, which made clear its views that post-adoption contact was in
N's interests and that the Trust should make every effort to find
prospective adopters who would agree to such contact. Lord Justice
Nicholson's direction that Lord Justice Campbell should preside at
the adoption order hearing was made precisely in order to ensure that
the Trust made those efforts. It cannot be said, therefore, that the
domestic courts allowed N to be freed for adoption without proper
regard for the fact that her interests, and those of the applicants,
were best served by post-adoption contact.
Finally,
the efforts of the domestic courts to ensure that the Trust found
suitable prospective adopters also means that the Court should attach
less weight to the applicants' submissions that first, they could not
be criticised for not consenting to an adoption when that adoption
might have put an end to any prospect of rehabilitation and second,
they were justified in refusing to consent to the order without
proper guarantees that contact would be maintained. As to the first
submission, it is in the very nature of adoption that no real
prospects for rehabilitation or family reunification exist and that
it is instead in the child's best interests that she be placed
permanently in a new family. Article 8 does not require that domestic
authorities make endless attempts at family reunification; it only
requires that they take all the necessary steps that can reasonably
be demanded to facilitate the reunion of the child and his or her
parents (Pini and Others v. Romania, nos. 78028/01 and
78030/01, BAILII: [2004] ECHR 275, § 155, ECHR 2004 V (extracts)). Equally, the
Court has observed that, when a considerable period of time has
passed since a child was originally taken into public care, the
interest of a child not to have his or her de facto family
situation changed again may override the interests of the parents to
have their family reunited (see, mutatis mutandis, K.
and T. v. Finland, cited above, § 155; Hofmann
v. Germany (dec.), no. 66516/01, BAILII (French Text): [2007] ECHR 1203, 28 August 2007). Similar
considerations must also apply when a child has been taken from his
or her parents. As to the second submission, had the position of the
Trust not changed in the course of the proceedings, and had the
domestic courts not clearly expressed their preference for
post-adoption contact, the Court might have seen greater force in the
applicants' submission that they were acting reasonably in refusing
to agree to adoption. However, the manner in which the freeing
proceedings evolved demonstrates to the Court's satisfaction that,
once the domestic courts had concluded that adoption was in N's best
interests, they were also entitled to conclude that any reasonable
parent who paid regard to their child's welfare would have consented
to the adoption. That conclusion was well within the margin of
appreciation that domestic courts enjoy in such cases.
For
the foregoing reasons, the Court concludes that the reasons given by
the domestic courts for the freeing order were relevant and
sufficient. The freeing order was therefore a proportionate
interference with the applicants' Article 8 rights.
c. Overall conclusion in respect of Article 8
Having
found that the making of the freeing order complied with the
procedural and substantive requirements of Article 8, the Court finds
that there has been no violation of Article 8.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 6 of the Convention
The applicants further alleged breaches of Article 6 of the
Convention, which provides, as relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
They
submitted that the decision of the domestic authorities to conduct
freeing order proceedings, which deprived them of the opportunity to
participate at the later adoption order proceedings, breached their
right to a fair hearing in the determination of their civil rights as
parents. They further argued that there were a number of issues
relating to the desirability of the adoption of their daughter, such
as post-adoption contact, on which they could not be heard at the
adoption order hearing because of the freeing order. In order to
guarantee a fair hearing on the decision to deprive them of their
civil rights, it would have been more appropriate for the domestic
authorities and prospective adopters to have applied for an adoption
order and simultaneously request that the applicants' agreement be
dispensed with by a freeing order. At such an adoption hearing, by
which time the proposed adopters would have been identified, all such
issues could be determined by evidence. The applicants could have
attended and argued their case on the evidence, with all the rights
and protections afforded to them as parents.
The
Court considers that this complaint should be declared admissible.
However, it also considers that the essence of this complaint, that
the freeing order procedure was not attended by sufficient procedural
safeguards, has been thoroughly examined under Article 8 above and
may be regarded, in the present case, as absorbed by the latter
provision (see, mutatis mutandis, Eberhard and M. v.
Slovenia, no. 8673/05 and 9733/05, BAILII: [2009] ECHR 1976, § 111, 1 December 2009
and Connors v. the United Kingdom, no. 66746/01, BAILII: [2004] ECHR 223, §
103, 27 May 2004). No separate issue therefore arises for
determination.
B. Article 13 of the Convention
Finally, the applicants alleged that the appeal courts could only
overturn the trial judge's ruling if they considered it to be
“plainly wrong”. Under Article 13 they argued that such a
restriction on their right to appeal deprived them of an effective
remedy in respect of the violations of the Convention of which they
were victims.
Article 13 of the Convention provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The Court considers this complaint to be without merit. There is
nothing exceptional in appeal courts having limited powers of review
of decisions of lower courts (see, mutatis mutandis,
Loewenguth v. France (dec.), no 53183/99, BAILII: [2000] ECHR 713, ECHR 2000-VI, Pesti
and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, BAILII: [2000] ECHR 712,
ECHR 2000-I). In any event, the Court has found that the Northern
Irish statutory scheme, as interpreted in AR and Re Z
and T, is capable of being applied compatibly with Article 8 (see
paragraph 77 above). As in AR and Re Z and T, the
applicants were able to rely on Article 8 at all stages of the
proceedings; the appeal courts were able to deal with the substance
of the applicants' Convention complaints and, had those courts found
that a freeing order would have breached their Article 8 rights, they
would have been able to grant appropriate relief.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaints concerning Articles 6
and 8 of the Convention admissible and the remainder of the
application inadmissible;
2. Holds by six votes to one that there has been no violation
of Article 8 of the Convention;
3. Holds unanimously that no separate issue arises under
Article 6 of the Convention.
Done in English, and notified in writing on 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Kalaydjieva is annexed to this judgment.
L.G.
T.L.E.
DISSENTING OPINION OF JUDGE KALAYDJIEVA
To my
regret I am unable to join the conclusions of the majority. In her
dissenting opinion in the case before the House of Lords, Baroness
Hale of Richmond formulated the major question as “whether it
is necessary and proportionate to sever the links with the family of
birth if a new (adoptive) family has not yet been identified”.
In my
view a reasonable determination of a child's best interests can only
be based on a comparison between the current situation of a child and
the extent to which it calls for separation from the biological
parents – on the one hand and the extent to which these
interests would be better met with the candidate-adoptive family
(including the future contacts with the biological parents) –
on the other.
Looking
at the length of the “freeing order” proceedings and the
fact that the initiation of adoption proceedings was possible only
after their completion, I fail to see how the consequential
examination of the current and the future situation of the child
better met her urgent needs.
Moreover,
the examination of (what I see as) inseparable aspects of the child's
interests required the national authorities to assess these aspects
as they stood at different times – regardless of the positive
changes in the applicants' abilities to take responsible care of
their children. By this time the applicants were found eligible for
foster care and their ability to take responsible care of their other
child was not contested. However at this moment, the national courts
were competent to consider these positive changes only for the
purposes of determination of the frequency of their contacts with the
child N., who was already destined for adoption by virtue of an
earlier reached irreversible decision.
While
I agree that it is “easier to find adoptive parents after a
child had been freed (see § 59)”,
in my view a “freeing order” seems to facilitate
primarily the authorities' search for candidate-adoptive parents but
not necessarily the proper assessment of the child's best interests
or the applicants' rights under Article 8 as to the moment of the
decision for adoption.
