CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 juillet 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY   Application No. 12451/86 by Winifred ADAMSON against the United Kingdom             The European Commission of Human Rights sitting in private on 13 July 1987, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      E. BUSUTTIL                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                    Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 5 June 1986 by Winifred ADAMSON against the United Kingdom and registered on 23 September 1986 under file No. 12451/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts as they have been submitted on behalf of the applicant by her husband, acting as her representative, may be summarised as follows:           The applicant is a British citizen, born in 1913 and living in Cambridge.   The applicant is a great grandmother and has three great grandchildren, A, a girl, born on 6 October 1978, B, a boy, born on 19 November 1982 and C, a boy born on 21 October 1985.   The father of the children, the applicant's grandson, married the mother on 25 February 1978.   They were aged 19 and 17 respectively at the time of the marriage.           Both the mother and father came from a background which caused them both some stress.   The father was in the Navy at the time of the marriage.   During the mother's first pregnancy she suffered from two epileptic fits, and after the birth of A she suffered a further attack of epilepsy.           The mother and father had certain difficulties with their parents, and for a period of time after the birth of A they lived with the applicant.           Within three months of the birth of A, the mother became pregnant again, and accepted advice to have the pregnancy terminated and had an abortion.   For a period of fifteen months after the birth of A, the mother suffered post-natal depression.   The father, having left the Navy, became unemployed.   In January 1979 the Social Services Department's attention was drawn to the family following a report that A had been left unattended.   The Social Services Department, after making various enquiries, concluded that A was being adequately looked after.           When the father eventually found work the mother became more depressed, and on occasions when A wanted feeding, she would not feed her.   A did not, however, suffer from malnutrition as a result of this.   In January 1980 the mother and father were offered a council flat, the state of which increased the mother's depression.   She asked the Social Services to take A into care for two days to allow her the opportunity to clear up the flat, but was informed that it would not be a good idea for the child to be taken temporarily into care.           On 23 January A had a bad crying patch which kept the mother up late that night.   The mother became frustrated and picked A up and threw her into a chair which she bounced out of, and as a result received a head injury.   A was taken to the hospital and kept there as the head-injury was thought to be serious.           On 28 February 1980, under Section 1 of the Children and Young Person's Act 1969 which provides for care orders in cases of impairment of development of health or of ill-treatment, interim care and control of A was granted by a Juvenile Court to the County Council, who administered the care and control of A through their Social Services Department.   They placed A with foster parents, the foster mother being a trained nurse.   Access was permitted to the mother and father from March 1980 for one hour every month.           On 12 May 1980 the mother pleaded guilty to causing A grievous bodily harm and was put on probation.   The court took the view that this was not the classic baby battering syndrome, but was a sudden and tragic incident.           The mother and father attempted to have the care order revoked.   Their application to the Juvenile Court was unsuccessful and in February 1982 they appealed to the Crown Court.   The Crown Court discharged the Care Order and returned A to the mother and father.   A Supervision Order was made in favour of the County Council.   The foster parents issued wardship proceedings, supported in this by the County Council, contending that it was not in A's best interest to return to her mother and father because of the trauma of the return, taking into account also that A had been left with some residual brain damage.   The result of this hearing was that care and control was granted by the judge to the County Council, and access for the mother and father was given, amounting to five and a half hours per fortnight.           On 19 November 1982 a second child, B, was born to the mother and father.           During the course of 1982 the foster parents applied to the High Court in the wardship proceedings, seeking care and control of A, with the County Council having supervision, and with no access being granted to the mother and father.   The mother and father sought to have the child returned to them with the County Council supervising.           The wardship hearing took place in Janury 1983.   The judge took into account a considerable amount of professional evidence before pronouncing the judgment.   The judge accepted evidence that A needed a strong, warm, relaxed environment in which to live and that it would be traumatic for her to be moved, this trauma perhaps exacerbated by the injury she had suffered.   The judge found the foster parents to be very responsible and caring people.   With regard to the mother and father, the judge stated "when (A) had to leave them, their marriage was at a stage where they were having rows, their accommodation was bad and they were surrounded by debts and it is a matter of admiration that these two very young and immature people have managed to put their home into a clean and attractive state and keep going together with very little help from relatives.   One can understand that they feel that they are well equipped to have (A) back with them."           The judge, however, considered that the professional witnesses' evidence was all one way and that A should remain with the foster parents, and correspondingly awarded them care and control of A with a supervision order granted to the County Council.   Access to the mother and father was granted once every six weeks for a period of six hours.           The mother and father were advised by counsel not to appeal against this decision as their chance of obtaining care and control were minimal.   There was, however, an attendant danger that any appeal would be met with a cross-appeal on the question of access, and in this, counsel considered that there was a danger that the access arrangements might be reduced.           The applicant, who had previously had contact with A, wrote to the County Council, requesting access to her great granddaughter. This request was turned down on 10 September 1980 on the basis that A had not reacted well to previous visits by relatives.   The County Council informed the applicant that access for the parents was to be limited and that no other relatives were to be permitted to have access.           Following the court hearing in January 1982 in which care and control of A was vested in the foster parents, the applicant wrote to the foster parents, requesting access to A.   The foster parents replied that it was not in A's best interests to have any additional access visits, but that the applicant could see A during any normal access granted to the mother and father.   The foster parents, however, agreed to allow an extra half hour for one access period a year so that the applicant could see A without imposing on the mother and father's time with the child.           The applicant wrote to the County Council, a member of Parliament, the Prime Minister, seeking some avenue for obtaining access to A, all of which proved futile.   The applicant instructed solicitors who attempted to obtain legal aid on her behalf.   The Law Society, the administrators of the legal aid system, advised the applicant's solicitors to invite the applicant to withdraw the application for legal aid in the light of counsel's earlier advice given to the parents that further proceedings were likely to adversely affect access, rather than allow further access.           In January 1984 the applicant was informed by the mother and father's social worker that she could join them on the next access visit, but that she should not join them on any of their later visits as it was important for the father and mother to have as much time as possible with A.   The social worker concerned also advised the applicant that she should go to court to seek separate access.           The applicant approached the Magistrate's court concerning wardship proceedings and was advised by the Magistrate's Court in a letter dated 5 June 1984 to seek legal advice and, if possible, legal aid.   The applicant continued to seek further access and joined the mother and father on one access visit prior to September 1984.   In all, the applicant has seen A on four occasions since the child was taken into care.           Following an accident in August 1985 when the mother and fathers' second child B fell down some stairs, the County Council issued wardship proceedings and B was taken into care.   The applicant states that access to A was suspended after this incident.   The applicant wrote to the County Council seeking access to A and B but her request was refused.   She was informed she would only be able to obtain access through the courts.           On 21 October 1985 a third child, C, was born to the mother and father, and was made a ward of court by them as the County Council were threatening to do the same.   A hearing was scheduled for December 1985 but was postponed until January 1986 due to the number of people listed to give evidence.   The January 1986 hearing was adjourned to allow for further reports to be made and in the intervening period up until the hearing scheduled for July 1986 B remained with short-term foster parents and C was allowed to remain with his mother and father.           At the hearing in July 1986, the judge ordered that A be released for adoption proceedings, B to remain in long-term foster care and C to be placed with foster parents.           The mother and father applied for a variation of the judges order but this was turned down on 22 August 1986 on the grounds that it was effectively an appeal against the judges order.   The mother and father then obtained legal advice to appeal out of time.   The appeal was, however, dismissed on 19 February 1987.           On 14 April 1987, the County Council took out a summons returnable on 24 April 1987 seeking leave to commence proceedings for orders that B and C be freed for adoption and that access by the applicants be terminated on the making of such an order and that leave be given to place C with long-term foster parents.     COMPLAINTS           The applicant complains that she has been unable to obtain access to her great grandchildren and that she has been refused access to them by the County Council.           The applicant further complains that she has not had access to the courts as she has been unable to obtain legal aid and has been legally advised of the futility of any application to obtain access to her great grandchildren.   She claims that she has been denied a fair and public hearing.   THE LAW   1.       The applicant complains first that she has been unable to obtain access to her great grandchildren.           Article 8 (Art. 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 in accordance         with the law and is necessary in a domestic 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 Commission has previously held that, apart from any blood relationship, certain links must exist between persons before their relationship can be said to constitute "family life" within the meaning of Article 8 (Art. 8) of the Convention (cf.   No. 5269/71, Dec. 8.2.72, Collection 39 p. 104 and No. 7229/75, Dec. 15.12.77, D.R. 12 p. 32).           In this connection the Commission notes the very limited contact that the applicant appears to have had with her great grandchildren.   Whilst there was a degree of contact between the child A and the applicant immediately after A's birth, with regard to B and C the applicant has not shown what contact she has had with them.           The Commission does not, however, consider it necessary to resolve the question of whether "family life" exists since it is clear that even if the applicant could show that the relationship between herself and the three children fell within the meaning of "family life" the decisions which have been taken are justified under paragraph 2 of Article 8 (Art. 8-2) of the Convention.           In this respect the Commission notes that all three children were made wards of court and as such it was open to the applicant to apply to the High Court for access to the children.   In determining the question of access the High Court must take as its paramount consideration the welfare of the child.   From the information submitted by the applicant it appears that the High Court considered the children's welfare in the wardship proceedings and decided that the three children's best interests are furthered by the orders made limiting the natural family's contact with the children.   Wardship would provide a means to examine the lawfulness of these decisions and whether they are arbitrary and determine also whether access should be granted to the applicant.           The Commission, noting the findings of the High Court, is satisfied that any interference with the right to respect for family life, which the limitations placed on the natural family's right of access may constitute, is justified as being in accordance with the law and necessary in a democratic society in the interests of the children's health.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.        The applicant also complains that she has not had access to the courts.   She states she has been legally advised as to the futility of any application to obtain access to her great grandchildren and she claims that she has been denied a fair and public hearing.           Article 6 para. 1 (Art. 6-1) of the Convention provides, as far as material:           "1.   In the determination of his civil rights and         obligations ... everyone is entitled to a fair and public         hearing within a reasonable time by an independent and         impartial tribunal established by law."           The Commission observes that Article 6 para. 1 (Art. 6-1) is only applicable in proceedings on the determination of "civil rights and obligations", however the Commission need not decide whether or not "civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) are at issue in the present case in view of the opportunity of access to court which is in fact open to the applicant, insofar as required by this provision.           The Commission first notes that all three children were made wards of court and as such it was open to the applicant to seek access to the children in the wardship proceedings.   It appears that with regard to A the applicant took legal advice, but in the light of Counsel's opinion given to the parents following the wardship hearing in January 1983, she was advised against making any application.   The Commission considers that the applicant has not shown that she was thereby excluded from access to a court contrary to Article 6 para. 1 (Art. 6-1) of the Convention as she could have applied for access to the children through the jurisdiction of the High Court in wardship proceedings.           The Commission next notes that the applicant also complains of her non-eligibility for legal aid.   The Commission observes that no right to free legal aid in civil proceedings is, as such, included among the rights and freedoms guaranteed by the Convention, although denial of legal aid could in certain circumstances amount to a failure to ensure a fair hearing under Article 6 para. 1 (Art. 6-1) of the Convention (Eur.   Court H.R., Airey judgment of 9 October 1979, Series A no. 32 para. 26).   Furthermore, the Commission has also held that the operation of financial qualifications for legal aid, and a restriction on its availability to cases with objective, fair, prospects of success is a reasonable application of limited public funds for the purpose of ensuring a fair hearing (cf.   No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).   There is no indication that the applicant was refused legal aid on any other ground.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission              President to the Commission              (H.C. KRÜGER)                            (C.A. NØRGAARD)