CEDH · CASELAW;CLIN;ENG — 16 juillet 2002

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 44 July 2002 P., C. and S. v. the United Kingdom - 56547/00 Judgment 16.7.2002 [Section II] Article 8 Article 8-1 Respect for family life Removal of child at birth on emergency basis: violation Procedures concerning care and freeing for adoption orders: violation Article 6 Civil proceedings Article 6-1 Fair hearing Lack of legal representation in proceedings concerning child care: violation Facts : The applicants are a married couple and their daughter, S., born in 1998. During P.’s pregnancy, the local authority was informed that her son from a previous marriage in the United States had been taken into protective custody there in 1994 as a suspected victim of induced illness abuse (Munchausen Syndrome by Proxy) and that she had subsequently been convicted in that connection. The local authority decided to place the unborn child on the Child Protection Register and undertake a full risk assessment. As the parents were uncooperative, the local authority decided in April 1998 to take out an emergency protection order at birth. S. was born on 7 May 1998 by Caesarean section. The same day, the local authority applied for an emergency protection order and, as the hospital confirmed that it could not guarantee the child’s safety, the authority decided to serve the order and removed the child. The parents were allowed supervised contact several times a week. The local authority applied for a care order and in November 1998 made an application for S. to be freed for adoption. During the hearing of the application for a care order in the High Court, P.’s legal representatives withdrew from the case. After granting an initial adjournment, the judge refused a further adjournment, considering that P. was able to conduct her own case (C. having withdrawn from the proceedings) and that delay was not in the child’s interests. After the hearing, which lasted 20 days, the judge made a care order. One week later, the same judge heard the application for S. to be freed for adoption. He declined to defer the proceedings in order to allow P. and C. to obtain legal representation and, concluding that there was no realistic prospect of returning S. to their care, he issued an order freeing S. for adoption. S. was placed for adoption in September 1999 and an adoption order was made in March 2000. No provision was made for future direct contact between P. and C. and their child, such contact being at the discretion of the adoptive parents. Law : Article 6 § 1 – There could be no doubt about the seriousness of the outcome of the proceedings for P. and C.   P. was required as a parent to represent herself in proceedings of exceptional complexity and her alleged disposition to harm her own children, along with her personality traits, were at the heart of the case. In view of the complexity, the importance of what was at stake and the highly emotive nature of the subject matter, the principles of effective access to court and fairness required that she receive the assistance of a lawyer. Moreover, while P. and C. were aware that the application for freeing for adoption was likely to follow within a short time, this did not mean that they were in an adequate position to cope with the hearing on that matter, which also raised difficult points of law and emotive issues. The Court was not convinced that the importance of proceeding with expedition necessitated the draconian action of proceeding to a full and complex hearing within one week of the care order being made. It would have been possible for the judge to impose strict time limits and the possibility of some months’ delay in reaching a final conclusion was not so prejudicial to S.’s interests as to justify the brevity of the period between the two procedures. The procedures adopted not only gave the appearance of unfairness but prevented the applicants from putting forward their case in a proper and effective manner. The assistance of a lawyer during the hearings was thus indispensable. Conclusion : violation (unanimously). Article 8 (a) It is not the Court’s role to examine domestic law in the abstract and, in any event, since circumstances may be envisaged in which a young baby might be adopted in conformity with Article 8, it could not be considered that the law per se was in breach of that provision. (b) Removal of S. at birth: It was undisputed that there had been an interference and that the interference was in accordance with the law and pursued the legitimate aims of protecting the health and rights of the child. As to the necessity of the interference, the Court was not persuaded that there had been any failure to involve the parents in the investigative procedure conducted by the local authority and, while the applicants complained that they were not properly informed that the authority was going to remove the child at birth, it appeared that they were nonetheless aware that the option was being considered. In fact, no final decision was taken until the day of the birth. Nor could the authority be criticised for not attempting to have an inter partes hearing:   it was within the the proper role of the authority to take steps to obtain an emergency protection order and there were relevant and sufficient reasons, so that the decision could be regarded as necessary. Nevertheless, consideration also had to be given to the manner of implementation. Following the birth, P. was initially confined to bed and it was not apparent why it was not possible for S. to remain in the hospital and spend at least some time with P. under supervision, since P.’s capacity and the opportunity to cause harm were limited. Indeed, there was no suspicion of life-threatening conduct, making the risk more manageable, and it had not been shown that supervision could not have provided adequate protection. Consequently, the draconian step of removing the child shortly after birth was not supported by relevant and sufficient reasons. Conclusion : violation (unanimously). (c) The care and freeing for adoption proceedings:   The complexity of the case and the fine balance to be struck between the interests of S. and her parents required that particular importance be attached to the procedural obligations inherent in Article 8. The lack of legal representation, together with the lack of any real lapse of time between the two procedures, deprived the applicants of a fair and effective hearing under Article 6 and, having regard to the seriousness of what was at stake, also prevented them from being involved to a degree sufficient to provide them with the requisite protection of their interests. Conclusion : violation (six votes to one). Article 12 – This provision relates to the right to found a family and does not concern, as such, the circumstances in which interferences with family life between parents and an existing child may be justified, where Article 8 is the lex specialis . Consequently, no separate issue arose. Conclusion : no separate issue (unanimously). Article 41 – The Court awarded each of the applicants P. and C. the sum of 12,000 € in respect of non-pecuniary damage. It also made an award in respect of costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes