CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1992

.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 OF                         Application No. 19527/92                       by M.C. against the United Kingdom           The European Commission of Human Rights sitting in private on 15 May 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  F. ERMACORA                  G. SPERDUTI                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ RUIZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    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 13 July 1991 by M.C. against the United Kingdom and registered on 11 February 1992 under file No. 19527/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is a British citizen born in 1944 and resident in Blackburn. She is represented before the Commission by Mr. Turner, a solicitor practising in Blackburn. The facts as submitted by the applicant may be summarised as follows.         On 5 April 1980 the applicant gave birth to a son C.         The applicant's husband left the matrimonial home on or about 1986.         On 2 February 1989 the applicant went to pick up her son from school.   She was called into the headmaster's office and told that her son had been taken into care, but no reasons were given.   In the course of the evening, a protection order was served on the applicant by two officers of the NSPCC (National Society for the Prevention of Cruelty to Children).         On 3 February 1989 the applicant was taken to Blackburn police station for questioning when, for the first time, it became clear that her son had been removed because allegations of sexual abuse were being made against her.         On 6 February 1989 the applicant was told to attend the local Magistrates Court on 9 February 1989, when an Interim Order was made for 28 days, with the final hearing fixed for April.   On 26 April 1989 the magistrates found the allegations of sexual abuse to have been made out, and a Care Order was made.   The applicant states that her lawyer told her that no appeal was possible in respect of the Care Order.   It subsequently transpired that an appeal had been possible since 31 August 1988, when the Children and Young Persons Act 1969 was amended to give an appeal to the parent of a child taken into care.         Criminal proceedings were subsequently begun, alleging gross indecency.   These proceedings were discontinued when the Crown Prosecution Service gave notice on 22 May 1989 that they did not intend to proceed with the charges.         The applicant regarded the decision to discontinue the charges as a vindication of her denial of any sexual abuse.         The applicant only saw her son three times after he was taken into care. The Social Services Department decided to terminate access because the applicant was not co-operating.   In particular the Department concluded that until the applicant accepted that there had been abuse of a sexual character, it could not help the applicant to be rehabilitated with her son.         On 6 June 1989 the applicant introduced an application before the Commission, alleging, inter alia, that her son had been taken into care contrary to Article 8 of the Convention.   By decision dated 13 December 1989, the Commission declared this application, registered under No, 15350/89, inadmissible.   The applicant's complaints under Article 8 of the Convention were rejected on the ground that since she had not appealed against or applied for discharge of the care order and also had not appealed against the termination of access she had failed to exhaust domestic remedies as required by Article 26 of the Convention.         The applicant withdrew her appeal against the termination of access before the Juvenile Court on 24 April 1990.         The local authority decided to place C. for adoption and applied to the County Court for an order freeing him for adoption.               On 5 July 1991 the County Court judge made the order pursuant to the provisions of the Adoption Act 1976.   In his judgment, the judge criticised the "blinkered" approach taken by the authorities and the shortcomings in the procedure adopted by the Social Services.   He stated that he had grave reservations as to the correctness of the original findings that sexual abuse had taken place and commented that, unwittingly or otherwise, C. had been encouraged and sustained in the belief that he had been sexually abused without the authorities making any attempt to evaluate the applicant's credibility. The judge had regard to the length of the time which had elapsed since the applicant had last seen C., i.e. 22 months, and the expressed preference of C. to be adopted. He held that C.'s greatest need was for stability and the security of a permanent home, which adoption would provide. He regretted that true or false, the allegations of sexual abuse remained an insurmountable obstacle to C. resuming a natural and loving relationship with the applicant. He concluded that adoption was in C.'s best interests and dispensed with the applicant's consent.   COMPLAINTS         The applicant complains that her son has been taken into care and freed for adoption contrary to Article 8 of the Convention.   THE LAW         The applicant complains of a violation of Article 8 (Art. 8) of the Convention in respect of the placement of her son in care and the decision freeing him for adoption.         Article 8 (Art. 8) of the Convention provides:         "1.   Everyone has the right to respect for his private and       family life, his home and his correspondence.         2.    There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society in the interests of national security, public       safety or the economic well-being of the country, for the       prevention of disorder or crime, for the protection of       health or morals, or for the protection of the rights and       freedoms of others."   i.     Insofar as the applicant complains that her son was placed in care, the Commission recalls that this complaint was previously considered in connection with the applicant's first application to the Commission, No. 15350/89.         The Commission must therefore determine whether the present application is substantially the same as the one which it already has examined or whether this application contains relevant new information within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.         The Commission recalls that the applicant's complaints were rejected for non-exhaustion of domestic remedies since she had not appealed against the care order or applied for its discharge.   Since then, the applicant's son was freed for adoption in proceedings in which the judge expressed criticism of the earlier proceedings and had doubts concerning the findings of sexual abuse.   However, the Commission finds that this cannot constitute new and relevant information within the meaning of Article 27 para. 1 (b) (Art. 27-1-b). These proceedings do not affect the basis of the Commission's finding of non-exhaustion and indeed indicates that there were substantial grounds on which a care order could have been appealed or its discharge sought.         The Commission accordingly finds that this complaint is substantially the same as that in the previous application and in these circumstances must be rejected as inadmissible under Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.   ii.    Insofar as the applicant complains of the freeing of her son for adoption, the Commission recalls that this step was taken following its previous decision in No. 15350/89 and consequently the Commission may proceed to examine this aspect of the application.         The Commission finds that the decision to free C. for adoption constitutes an interference with the applicant's right to respect for her family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.   The Commission must therefore determine whether this interference was justified under the terms of Article 8 para. 2 (Art. 8-2), i.e. whether it was in accordance with the law, pursued one or more of the legitimate aims set out in paragraph 2 and whether it was 'necessary in a democratic society' for any of those legitimate aims.         The Commission recalls that C. was freed for adoption by the County Court under the provisions of the Adoption Act 1976 and that the County Court made the order as being necessary in C.'s interests.   The Commission accordingly finds that this decision was "in accordance with the law" and for the legitimate aim of protecting C.'s health and well- being.         The question remains whether the decision was "necessary" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   The case-law of the Commission and the Court establishes that the notion of necessity implies that the interference corresponds to a pressing social need and that it is proportionate to the aim pursued.   Further, in determining whether an interference is necessary the Commission and the Court will take into account that a margin of appreciation is left to the Contracting States, which are in principle in a better position to make an initial assessment of the necessity of a given interference.         When determining whether or not the freeing of C. for adoption and terminating the applicant's access to him was necessary in his interest, the Commission observes that it is not its task to take the place of the competent national courts and make a fresh examination of all the facts and evidence in the case.   The Commission's task is to examine whether the reasons adduced to justify the interference at issue are "relevant and sufficient" (Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, p. 32, para. 68).         The Commission has accordingly examined the reasons given in the judgment of the County Court on 5 July 1991.         The Commission recalls that the County Court judge found that the adoption was in the best interests of C.   He had regard to C.'s wishes, the length of time which had elapsed and the fact that, true or false, the allegations of sexual abuse remained an unsurmountable obstacle to C. resuming a relationship with the applicant.         The Commission finds that these reasons were "relevant" and "sufficient" for the decisions in question.         The Commission also recalls that the applicant was present at the hearing and was represented by solicitor and counsel.   The applicant therefore had the possibility of putting forward any views which in her opinion would be decisive for the outcome of the case.   With regard to these facts, the Commission finds that the procedural requirements implicit in Article 8 (Art. 8) were satisfied since the applicant was involved in the decision-making process to a degree sufficient to provide her with the requisite protection of her interests (see e.g. Eur. Court H.R., W v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 28-29, paras. 63-65).         The Commission therefore finds that, bearing in mind the margin of appreciation accorded to the domestic authorities, the interference in the present case was justified under the terms of Article 8 para. 2 (Art. 8-2) of the Convention as being "necessary in democratic society" for the protection of health and for the protection of the rights of others.         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, by a majority         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission         President of the Commission             (H.C. KRUGER)                           (C.A. NORGAARD)