PRICE v. the UNITED KINGDOM



AS TO THE ADMISSIBILITY OF

Application No. 12402/86

by Angela and Rodney PRICE

against the United Kingdom

The European Commission of Human Rights sitting in private on

14 July 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

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 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 September

1986 by Angela and Rodney PRICE against the United Kingdom and

registered on 22 September 1986 under file No. 12402/86;

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 applicants are both British citizens, born respectively in

1939 and 1952. The first applicant is a district nurse; the second

applicant is a market trader by profession. They are represented by

Ms. Mary Ryan, solicitor, of the Family Rights Group, London. The

facts as they have been submitted on behalf of the parties may be

summarised as follows.

The applicants are the adoptive paternal grandparents of a

child, D., born on 24 July 1984. D. is the son of the applicants'

adopted son and daughter-in-law. The first applicant adopted her son

during her first marriage, and following the first applicant's

marriage to the second applicant, the second applicant also adopted

her son. The applicants visited D. regularly after his birth and were

concerned that he did not seem to be very well. In particular it

appeared that he had difficulty feeding.

On 4 September 1984 D. was admitted to hospital with serious

injuries, including a fractured skull and fractures in the legs. The

local authority was not satisfied with the explanations offered in

respect of the injuries and suspected they were non-accidental. At

this time, the social services department of the local authority

obtained a place of safety order in respect of D. under Section 28(1)

of the Children and Young Persons Act 1969. D. was in hospital for

three weeks, during which time both applicants visited him daily, the

first applicant often staying for several hours. Both applicants were

very concerned about their grandson.

On 21 September 1984 the social services department of the

local authority placed D. with short-term foster parents, where the

applicants were refused the opportunity to visit him despite their

request. On 7 November 1984 the Wigan Juvenile Court granted a care

order in respect of D. to the social services department of the local

authority under Section 1(2)(a) of the Children and Young Persons Act

1969 The applicants were not legally entitled to be parties to those

proceedings, or to make representations or any application in respect

of their grandson.

The local authority from the outset had decided on pursuing

the course of rehabilitating D. with his parents. The programme of

rehabilitation began at the end of November 1984 when the child began

to spend days at home. The applicants were then able to visit him at

his parents' home. As the rehabilitation programme developed, so

contact with the applicants also increased. On 1 March 1985 the child

returned to the care of his parents on a full-time basis and the

applicants saw him about twice a week.

On 12 June 1985 the child was admitted to hospital with

bruises under his eyes. The applicants visited the child in hospital

every day until his discharge on 21 June. The local authority

considered these injuries to be non-accidental and when he was

discharged from hospital placed him with foster parents. The

applicants asked for access, which was initially refused. Subsequently

the social services department of the local authority allowed the

first applicant to visit the child with the child's mother once a

week, but refused to make arrangements for both applicants to visit

the child together.

In August 1985 the applicants consulted their current

representative, and on 9 August 1985 their representative wrote to the

social services department of the local authority, in part in the

following terms:

"Unfortunately <the applicants'> concern, which arises

from their natural love of their grandchild, has been

interpreted by your department as interference in the

case and they have had great difficulty in communicating

with your department and in making arrangements to have

access to [the child] while he has been living with

foster parents. [The applicants] have therefore sought

my assistance in opening up communications with your

department."

The letter requested further access to the child, if possible

at the applicants' home at weekends, and referred to paragraph 8 of

the Statutory Code of Practice on Access issued by the Department of

Health and Social Security which stresses the importance of

considering the wider family when making arrangements for access to a

child in care. The letter then added that, if the decision was taken

by the local authority not to continue to attempt to rehabilitate the

child with his parents, the grandparents offered themselves as

potential long-term carers for the child.

The social services department of the local authority

continued to refuse to make any fuller arrangements for access for the

applicants but did agree to consider the applicants' offer of a home

for D.

On 8 November 1985, a case conference held by the social

services department of the local authority decided to rehabilitate

D. with his parents. It was specifically concluded that if further

non-accidental injury occurred rehabilitation would be terminated and

consideration given to alternative placement for D. away from his

parents. On 17 December 1985 both sets of grandparents were seen by

social workers concerning their involvement in the rehabilitation

programme. D. again started to spend days at the home of his parents,

where the applicants were able to visit him. Once again, with

increasing time spent at home, the child's contact with the applicants

increased.

On 1 February 1986 the first applicant's son telephoned the

first applicant to say that the child had a bruise on his leg. The

first applicant advised him to contact the social services department,

and on 4 February 1986 the child was again admitted to hospital where

the first applicant visited him. D. was found to have bruising on the

thigh and buttocks. Both injuries were unexplained and D.'s parents

gave different reasons as to how the bruising could have been caused.

On or about 6 February 1986 the child was placed with foster parents.

Following a case conference on 7 February 1986 and in line

with the conclusions of the case conference on 8 November 1985,

rehabilitation plans ceased and long-term placement away from his

family was sought for D. At the same time it was decided that access

by members of the family was to cease. The applicants have not been

allowed to see D. since then.

On 11 February 1986 a social worker from the Family Rights

Group advising the applicants wrote to the social services department

of the local authority asking them for a meeting with the applicants,

before any decisions were made to the child's future. No reply was

received to this letter, but on 25 March 1986 the applicants were

invited to meet with the representatives of the social services

department of the local authority. They were told that on 7 February

1986 the social services department of the local authority had decided

to place the child for adoption in a new family. The applicants had

not been informed of this decision and had not been invited to make

representations about it.

On 19 February 1986 and 4 March 1986 case conferences

concerning access to children in care had been held by the social

services department of the local authority. It was confirmed that the

applicants should have no access to the child and found that they were

not suitable to care for him full-time. They had not been informed

that these meetings were taking place, nor had they been asked to make

any representations, and had not been informed of the decision prior

to 25 March 1986.

At their meeting with the local authority on 25 March 1986 the

applicants referred to the Code of Practice on Access to Children in

Care issued by the Secretary of State under Section 12G of the Child

Care Act 1980, and in particular to paragraph 28 of the Code of

Practice which is in the following terms:

"Disagreement with parents

28 Local authorities should ensure that they have clear

procedures which will enable parents to pursue complaints

about access and ask for decisions to be reviewed. Local

authorities should also be prepared to use these procedures

to deal with complaints about access decisions from other

relatives of children in care."

On 26 March 1986, the local authority sent a letter to the

applicants explaining the local authority's decision concerning access

and adoption. On 2 April 1986, the applicants attended a meeting with

the local authority to discuss this letter.

Subsequently, on 6 May 1986 the applicants attended another

meeting of the social services committee of the local authority and

presented their request for access to the child. Their request was

refused.

In May 1986 the first applicant's adopted son and

daughter-in-law issued a summons in the Wigan Juvenile Court under

Section 21(2) Children and Young Persons Act 1969, to discharge the

care order in respect of their child. The applicants had no locus

standi in those proceedings and were not entitled to be represented or

to make any applications on their own behalf. The Juvenile Court also

had no power to make any order in respect of the child's access to his

grandparents. In the meantime, on 12 May 1986, the applicants

submitted a letter to the adoption panel of the local authority

requesting that they be considered as prospective adopters for the

child. They pointed out in their letter that they considered that it

would be very hard for the social workers who had been involved in the

case up to date to examine their offer with the objectivity which was

necessary. They therefore suggested that an independent social worker

should make an assessment of their suitability.

The child's parents' summons to discharge the care order and

to request access came before the Juvenile Court on 22 October 1986 and

lasted four days. The application was refused.

The local authority placed D. for adoption.

Relevant domestic law and practice

Care proceedings under the Children and Young Persons Act 1969

By Section 1 of the 1969 Act the local authority may apply to

the Juvenile Court, which is a specially constituted magistrates

court, for the child to be placed in its care. The local authority

has a duty so to do under Section 2(2) of the 1969 Act. The

conditions to be satisfied following an application are set out in

Section 1(2)(a)-(f): section 1(2)a provides for a (care) order in

circumstances where

"(a) <the child's> proper development is being avoidably

prevented or neglected or his health is being avoidably

impaired or neglected or he is being ill treated...."

In the application before the Juvenile Court the local

authority has to show the existence of one of the conditions in

Section 1(2)(a)-(f) and show that the child is in need of care or

control which he will not receive unless one of the orders specified

in Section 1(3) is made. It is provided by Section 44 of the Children

and Young Persons Act 1933, as amended by the Children and Young

Persons Act 1969, that every court in care proceedings shall have

regard to the welfare of the child in question and shall in a proper

case take steps for removing him from undesirable surroundings or for

securing that proper provision is made for his education and training.

One of the orders under Section 1(3) of the 1969 Act is a care

order. The effect of a care order is that the rights of the parents,

except the rights to agree to adoption and to influence the child's

religious beliefs, are taken from them and given to the local

authority. The powers and duties of local authorities with respect to

children and young persons committed to their care are contained in

Section 10 and Part III of the Child Care Act 1980. The local

authority have "the same powers and duties with respect to a person in

their care by virtue of a care order ... as his parents or guardian

would have apart from the order ..." (Section 10 of the 1980 Act).

They also have power to keep the child in their care notwithstanding

any claim by his parent or guardian while the order is in force.

Where a child is committed to the care of a local authority that

authority has the right to control access by other persons to that

child. In consequence of the child being in the care of a local

authority the local authority are required to give first consideration

to safeguarding and promoting the welfare of that child throughout his

childhood (Section 18 of the Child Care Act 1980). Thus the local

authority must apply this test in relation to decisions concerning

access to the child.

The care proceedings are, unless ground (f) is alleged, civil

proceedings; they are governed by the Magistrates' Courts (Children

and Young Persons) Rules 1970 (S.I.1970/1792) ("the 1970 Rules") as

amended and the law of evidence in civil cases applies. The parties

to the proceedings are the local authority and the child. It is open

to the child to have his parent or guardian to conduct his case on his

behalf either directly or indirectly through a lawyer in which case

the parent or guardian can apply for legal aid on the child's behalf

(Section 40(2) of the Legal Aid Act 1974). Where the court thinks

there may be a conflict of interest between the child and the parent

or guardian, the court may make an order that those interests be

separately represented (Section 32A of the 1969 Act as inserted by

Section 64 of the Children Act 1975). In that case legal aid will be

available for the child and separately for the parent or guardian

(Section 28(6A) of the Legal Aid Act 1974 as amended by Section 65 of

the Children Act 1975).

Under Section 2(12) of the 1969 Act, appeals from a juvenile

court decision in care proceedings lie to the Crown Court. The Crown

Court reviews the decision by way of rehearing. The local authority

has no direct right of appeal where no order is made under Section

1(3) or where the one made was not the order sought. Appeal on a

point of law lies to the Divisional Court of the High Court.

Judicial review

A person affected by the decision of an administrative body

may apply to have that decision set aside on the ground that the body

has acted in excess of its legal authority or that the decision taken

is one which nobody acting reasonably could have taken.

Wardship

Wardship jurisdiction is exercised by the Family Division of

the High Court or, since 28 April 1986, to a limited extent by County

Courts. It is a prerogative jurisdiction at common law and is largely

independent of statutory provisions. When a child becomes a ward of

court a court assumes responsibility for all aspects of his welfare.

It may, for example, make orders as to where the child has to live,

with whom, who may have access to him, and as to his religion,

education and marriage if under 18. In determining what orders to

make, the High Court is required by Section 1 of the Guardianship of

Minors Act 1971 to have regard to the child's welfare as the first and

paramount consideration. A court may grant care and control of the

child to a person or body, for example a local authority, but that

person or body may only act in accordance with the court's directions.

The court may also give care and control to one person or body and

make a supervision order, at its own discretion or under Section 7(4)

of the Family Law Reform Act 1969, in favour of another person or

body. A child remains a ward of court until either he has attained

his majority or the court orders that he shall cease to be a ward of

court. No important step can be taken in the child's life without the

court's consent (Re S (1967) 1 All ER 202 at 209).

Anyone, not merely a parent or a local authority, who can show

an appropriate interest in a child's welfare can apply for a child to

be made a ward of court. Section 41(1) of the Supreme Court Act 1981

provides that no child may be made a ward of court other than by a

court order. The application for the order must be made by

originating summons in the High Court. The procedure is set out in

Order 90 of the Rules of Supreme Court. The child becomes a ward of

court immediately the originating summons is issued. However, unless

an appointment for the hearing of the summons is made within 21 days,

the wardship automatically lapses. The appointment will generally be

before a registrar who gives directions as to what is to be done

before the case may be heard before a judge. He may also make an

order as to access if the person with the physical custody of the

child agrees. The registrar may also decide if any other interested

parties to the proceedings should be so joined. Any party

dissatisfied with the decision of the registrar may appeal to a judge

in chambers. When the proceedings are heard before the judge he

either confirms the wardship or makes an order terminating wardship.

There is a right of appeal from the judge in chambers to the

Court of Appeal, and thereafter (with leave) to the House of Lords.

In exceptional circumstances an appeal may be direct to the House of

Lords. Interested persons with insufficient means are able under

Section 7 of the Legal Aid Act 1974 to obtain legal aid for the

representation of their interests in wardship proceedings.

Once a child has become a ward of court, it remains open to

any party to bring the case back to the court for a variation of the

original order granting wardship or for directions on matters such as

access or education.

The courts have emphasised that the wardship jurisdiction is

not an alternative form of appeal from the decision of a juvenile

court concerning the care of a child under the 1969 Act. The

relationship between the responsibilities for the care of children

given by statute to local authorities and those exercised by the High

Court under wardship jurisdiction was explained in the leading

judgment of Lord Wilberforce in the House of Lords case A v. Liverpool

City Council (1981) 2 All ER 385 in particular at pages 388-9 in which

it was stated that wardship jurisdiction could not be exercised by the

courts to review the merits of local authorities decisions within the

field of discretion committed by statute to the local authority.

Code of Practice on Access

The Code of Practice on Access is a statutory code issued

under Section 12G of the Child Care Act 1980. Particular emphasis is

placed on the need for local authorities to make provision for contact

to be maintained, where this is consistent with the welfare of

children, with the wider members of the family in addition to the

child's parents (paras. 8 and 9 of the Code). The Code also requires

local authorities to ensure that they have clear procedures to enable

complaints about access to be pursued and for decisions to be reviewed

where relatives are concerned as well as parents. The provisions

introduced by the Health and Social Services and Social Security

Adjudications Act 1983 which provide a court procedure giving parents

a right to apply for access where a child is subject to a care order

do not apply to grandparent applications. Thus domestic legislation

does not recognise that grandparents have a right to access or a right

to apply for access to a child when that child is in the care of a

local authority under a compulsory care order.

Grandparents and grandchildren

Under domestic legislation grandparents generally do not have

legal rights over their grandchildren. Any rights which may exist

over children are normally vested jointly in the children's parents if

they are married. In considering the award of custody of a child to

any person or an issue relating to a child's upbringing such as access

a court must give first and paramount consideration to the welfare of

the child (Section 1 of the Guardianship of Minors Act 1971). Where a

child is in the care of a local authority by virtue of a compulsory

care order a grandparent of that child does not have a right to apply

for custody or access but must rely on the local authority's

discretion to afford contact with the child (which could include

access or the child living with the grandparents) where this would be

in the child's best interests. Section 18 of the Child Care Act 1980

requires the local authority to give first consideration to

safeguarding and promoting the welfare of the child throughout his

childhood and such contact with the grandparents would therefore have

to be consistent with the child's welfare.

Under domestic legislation grandparents may be parties to or

involved in the following proceedings in relation to their

grandchildren:

(i) Pursuant to Section 14A of the Guardianship of Minors Act

1971, where, under Section 9(1) of the Act, an order giving

access or custody to the father or mother is in force, the

Court may, on application of a grandparent of the minor,

make an order requiring access to the minor to be given

to the grandparent.

(ii) Grandparents may commence wardship proceedings, or apply to

be joined as parties to wardship proceedings commenced by

any other person, and may ask for any order which is in

the interest of their grandchild. However, as stated above,

wardship proceedings cannot be used to challenge the decisions

of local authorities taken under their statutory powers.

(iii) Where the child concerned is living with the grandparents

they may apply for a custodianship order in respect of him

under the Children Act 1975. This provision is applicable to

any relative of the child with whom the child has been living

for the preceding three months where the person with legal

custody of the child gives his consent. The provision also

applies to any person with whom the child has been living

for a period of 12 months (including the preceding three

months) where the person with legal custody consents.

(iv) In cases where the child is living with the grandparents

and various statutory requirements have been satisfied

grandparents may apply for an adoption order. These

requirements apply to any prospective adopter.

COMPLAINTS

1 The applicants complain of a violation of their rights under

Article 6 (Art. 6) of the Convention. They contend that their right to apply

for custody of and/or access to their grandchild is a civil right, but

that they do not have any right under English law to apply for custody

or access because their grandchild is subject to a care order made

under the Children and Young Persons Act 1969. In the care

proceedings the applicants have no locus standi and no right to apply

for the discharge of the care order. Similarly, the applicants have

no right to make an application in respect of their grandchild in

wardship proceedings in view of the decisions of the House of Lords in

A v. Liverpool City Council (1981) 2 All ER 385 and W and others v.

Hertfordshire County Council (1985) 2 All ER 301. Hence the

applicants contend that they had no independent and impartial tribunal

established by law from which they could obtain a fair hearing within

a reasonable time in respect of the determination of their civil

rights as regards their grandchild.

2 The applicants also complain of a violation of their rights

under Article 8 (Art. 8) of the Convention. They submit that they had

substantial access to their grandchild from his birth in July 1984 until his

final placement with foster parents in February 1986.

They complain that by restricting and ultimately terminating

access and refusing to allow them custody of their grandchild, the

social services department of the local authority have interfered with

their right to respect for their family life.

They further contend that the process of decision-making

within the social services department of the local authority provided

insufficient safeguards and showed a total lack of respect for family

life (*).

3 The applicants lastly contend that they had no effective remedy

before a national tribunal as required by Article 13 (Art. 13) of the

Convention since they had no standing in the care proceedings and wardship

would have been ineffective.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 September 1986 and

registered on 22 September 1986.

On 4 December 1986, the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits

pursuant to Rule 42(2)b of the Rules of Procedure.

The observations of the respondent Government were submitted

on 5 June 1987 after an extension in the time-limit and the

observations in reply submitted by the applicants on 16 September

1987, also after an extension in the time-limit.

----------

(*) The applicants' complaints under Article 8 (Art. 8) are set out in full

on pp. 9-10 of the Partial Decision on Admissibility.

The applicants were granted legal aid by the President of the

Commission on 25 June 1987.

On 9 March 1988, the Commission declared the applicants'

complaints under Article 8 (Art. 8) of the Convention inadmissible as

manifestly ill-founded in a partial decision on admissibility.

SUBMISSIONS OF THE PARTIES

A. The respondent Government

1 The facts

Background

Following D.'s first hospitalisation, the local authority's

records note that, in discussion with the health visitor on 7 September

1984, the first applicant mentioned that she was not surprised that

there had been injuries on D.

From the outset, the local authority sought to rehabilitate D.

with his parents as being in his best interests. The efforts of the

local authority therefore concentrated on the relationship between D.

and his parents, and although this at times restricted the applicants'

access to D., this was done for D.'s benefit. It had been noted at

case conferences on 11 September and 13 November 1984 that the first

applicant tended to overshadow D.'s mother, thus providing an obstacle

to the proposed rehabilitation of D. with his parents.

While the applicants were not entitled to be parties in the

case proceedings on 7 November 1984, the Juvenile Court has an

inherent discretion to allow persons such as the applicants to

participate in the proceedings: indeed the first applicant did give

evidence at the hearing. Representations could have been made that

the Court should make a supervision order with a condition attached

that D. live with the applicants.

The applicants met with the local authority on 25 March 1986,

2 April 1986 and 6 May 1986 and the applicants were able to put their

case for access. Following full consideration, the request for access

to D. by the applicants was refused.

In the proceedings before the Juvenile Court in October 1986,

neither the applicants nor D.'s parents asked that a supervision order

be made with a condition that D. reside with the applicants. Both the

guardian ad litem's reports of 20 and 22 October 1986 and the local

authority's report of 16 October 1986, which were before the Court,

considered and rejected the further contact between the applicants and

D. It is submitted that the Court had ample evidence before it to

come to the conclusion that it did, namely that the care order should

not be discharged and that there should be no access. It was brought

to the attention of the Court that the local authority's intention was

to place D. for adoption. This has now taken place.

It should also be noted that on 13 May 1986 a letter from the

local ombudsman was received by the local authority enclosing a letter

of complaint from the applicants concerning their treatment by the

local authority. This was investigated by the ombudsman and no

evidence of maladministration was found.

Throughout this case the local authority social workers were

concerned that not all the members of the family were being fully open

with the various authorities as to how injuries to D. occurred. As

mentioned above the first applicant was recorded by a health visitor

as saying that she was not surprised at the injuries which occurred to

D. resulting in his admission to hospital on 4 September 1984. On

19 September 1984 the health authority records note that D.'s mother

admitted holding D.'s face while winding him after a feed and that a

"potty" and shampoo bottle had been thrown at him by his sister.

Following attempts to rehabilitate D. with his family when he was

examined on 22 January 1985, 27 February 1985, 12 June 1985 and

4 February 1986 the explanations given by the various members of the

family, including the applicants, for the injuries recorded were not

accepted as satisfactory by the doctor who examined D. In particular

the explanations given by members of D.'s family for the injuries

on 12 June 1985 were not consistent. On the final occasion when

rehabilitation was attempted not only was there concern among the

local authority social workers that one of the applicants could have

caused the injuries but again the explanations provided by D.'s parents

and the second applicant were inconsistent. From the second

applicant's statement of 4 February 1986 it would appear that he could

have caused the bruising to D. According to the guardian ad litem's

report of 20 October 1986 the doctor who examined D. said that the

bruising on D.'s buttocks was due to an "extremely hard slap". The

local authority's letter of 26 June 1986 to the local ombudsman states

on page 3:

"The officers felt it was difficult for them to find out

exactly and precisely how D. had been injured, which had

occurred on a number of occasions. There seemed to be

conflicting stories being told or, to use the (applicants')

own phrase, a muddying of the picture. This is called

collusion and it could have been created deliberately or

it could have been created unknowingly, without being

aware of the effect.

The officers genuinely felt and still feel that such a

smoke screen or muddying of the picture existed, hence,

the reference in the telephone conversation (to collusion).

That view is still felt and it is not appropriate to

apologise for using the phrase."

The local authority's version of events was accepted by the

local ombudsman.

The view that members of the family had been less than fully

open with the local authority is supported by the first applicant's

comments (noted in the local authority's records on 27 March 1986)

when she explained to a social worker that D.'s mother had injured D.

If she had known this before she could presumably have come forward

and discussed it openly with the local authority officials concerned.

2 Domestic law and practice

Adoption legislation

Before a child can be placed for adoption the Adoption

Agencies Regulations 1983 which govern pre-placement procedure require

a full investigation of each case where adoption is under

consideration. This will include consideration of the wider family.

Before a local authority can make adoption placement decisions they

must receive their Adoption Panel's recommendations. Adoption orders

can only be made after consideration by the adoption Court of the

question of whether the parents agree to the making of an adoption

order or the Court dispenses with their agreement in accordance with

Section 12 of the Children Act 1975. In a case such as the present

one the parties to the proceedings would include the prospective

adopters, the local authority and the child's parents and may include

any other person (including grandparents) as the Court may at any time

direct (Rule 15(3) of the Adoption Rules 1984). The Court will have

before it in addition to any other evidence which any of the parties

may wish to introduce a report from the local authority as the placing

agency covering the matters specified in Schedule 2 to those rules

which will include relevant information concerning the grandparent.

It should cover the nature of the relationship between the

grandparents and the child and possible alternatives to adoption which

have been or should be considered. In considering whether to make an

adoption order in any case the Court is required to have regard to all

the circumstances, first consideration being given to the need to

safeguard and promote the welfare of the child throughout his

childhood, and shall so far as practicable ascertain the wishes and

feelings of the child regarding the decision and give due

consideration to them, having regard to his age and understanding

(Section 3 of the Children Act 1975).

Children and Young Persons (Amendment) Act 1986

Since proceedings were taken in the present case the above Act

has been passed. It amends the 1969 Act to the effect that any

grandparent of a child in respect of whom care proceedings are brought

may make an application to the Court and the Court may in such

circumstances as may be specified in rules of Court give leave for the

grandparent to be made a party to the proceedings. These provisions

of the Act have not yet been brought into operation. The Act does not

affect the orders which the Court may make in care proceedings where

the grandparent is a party. Thus the Court cannot make a custody

order or access order in favour of the grandparent.

3 Admissibility and merits

Article 6 para. 1 (Art. 6-1) of the Convention

The respondent Government do not accept that the applicants'

civil rights were involved in the present case. Grandparents do not

under English law have any rights of access to their children. At

most, a child's grandparents have the right, in certain circumstances,

to make an application to the courts in the hope that the courts

might, in the exercise of their discretion, permit them access to

their grandchild. It is therefore submitted that there is no legal

basis in English law for the proposition that grandparents have

"rights" in relation to their grandchildren of a type to which

Article 6 (Art. 6) of the Convention has any relevance.

Insofar as it is true to say that the grandparents had a hope

or expectation that access might have been granted to them by the

local authority, it is submitted that any such hope or expectation

cannot be classed as a right and that the possibility that a

discretion right be exercised in a certain way cannot be characterised

as a right.

If, which is not accepted, the applicants' civil rights were

involved it is submitted that they did have access to court for

determination of that right. Local authority action can be challenged

in wardship proceedings in conjunction with proceedings for judicial

review or in proceedings for judicial review alone. If the local

authority had acted improperly in restricting access to the applicants

or in their refusal to grant access after 7 February 1986, it would

have been open to the applicants to apply both for judicial review of

the local authority's actions and to bring wardship proceedings at the

same time. If, for example, it could have been shown that the local

authority did not take proper account of the applicants as possible

carers for D. and persons who should have continued to be involved in

D.'s life or if the local authority had failed to act in accordance

with the principles set out in the Code of Practice on Access there

would have been good grounds for such applications to have been made.

In fact, the local authority went to considerable efforts to enable

the applicants to put their case before a specially convened meeting

of elected members in accordance with the procedures recommended under

the Code of Practice and there were a number of meetings between the

applicants and the local authority's social workers to discuss both

access and the applicants' further involvement with D.

In the present case, any "right" to access which the

applicants had stemmed from the possibility of the local authority

exercising their discretion in the applicants' favour. In such cases,

the case-law of the Court and the Commission indicates that the

possibility of judicial review of the exercise of such discretion

satisfies the requirements of Article 6 para. 1 (Art. 6-1). The recent case of

Agosi (Eur. Court H.R., Agosi judgment of 24 October 1986, Series A

No. 108) indicates that the remedy of judicial review, which in this

case could be used alone or supported by a wardship application, would

be a satisfactory remedy having regard to the requirements of Article

6 (Art. 6). The Government also refer to the case of Van Marle (Series A

No. 101 para. 35) as indicating that the existence of such proceedings

is relevant in particular when it is alleged that an authority has

exercised its powers improperly. The Government further rely on the

Report of the Commission in Application No. 7598/76, Kaplan v. the

United Kingdom (Comm. Rep. 17.7.80, D.R. 21 p. 5),

It is submitted that the applicants could not show, on the

facts, that they had a proper basis for challenging the actions of the

local authority, as the local authority did not act improperly.

However, if this is alleged, it is submitted that in this regard the

applicants have failed to exhaust domestic remedies for the purposes

of Article 26 (Art. 26) of the Convention.

As regards the care proceedings, the applicants could have

requested the Court, in the exercise of its inherent jurisdiction, to

allow them to make representations. For example, they could have made

representations, in conjunction with D.'s mother and her husband, that

a supervision order be made with a requirement that D. be placed with

the applicants.

Article 13 (Art. 13) of the Convention

If, contrary to the respondent Government's submission, the

Commission is of the opinion that Article 6 (Art. 6) is applicable, the

Government would submit that no separate issue arises under Article

13 (Art. 13). The Government would refer to the constant case-law of the

Convention organs to the effect that the requirements of Article 13

(Art. 13) are less strict than and accordingly absorbed by Article 6 (Art. 6)

(e.g. Eur. Court H.R., Silver and Others judgment of 25 March 1983, Series A

No. 61 para. 110).

If the Commission are of the opinion that Article 6 (Art. 6) is not

applicable, the respondent Government first suggest that the

applicants do not have an arguable claim for the purposes of Article

13 (Art. 13). In the case of Rice and Boyle (Applications Nos. 9658/82 and

9659/82, Comm. Rep. 7.5.86) the Commission identified three elements

of a claim which was "arguable": the claim should concern a right or

freedom guaranteed by the Convention; the claim should not be wholly

unsubstantiated on the facts; and the claim should give rise to a

prima facie issue under the Convention. The Commission did not amplify

what it meant by the words "prima facie issue" in this context.

However, it is noted that in respect of the two applicants' complaints

in that case the Commission equated the concept of manifestly

ill-founded with the absence of a prima facie issue; in particular, in

paragraph 91 of its Report, the Commission held that, since the

supervision of prisoners' correspondence was justified under Article 8

para. 2 (Art. 8-2), the complaint did not give rise to a prima facie issue and

thus to an arguable claim under the Convention.

In the present case, the Government argue that the applicants'

claim under Article 8 (Art. 8) is manifestly ill-founded. In these

circumstances the Government submit that no issue under Article 13

(Art. 13) arises.

Alternatively, the applicants had an effective remedy before a

national authority through the procedure adopted by the local

authority in respect of access and subsequently by taking wardship

and/or judicial review proceedings in respect of the decisions made by

the local authority pursuant to that procedure in relation to the

applicants. There is no evidence to indicate that any decision of the

local authority in this case was improperly taken, but, if it had

been, the remedies available through judicial review and wardship

would have allowed such a decision to be challenged and afforded an

effective remedy in accordance with the requirements of the

Convention. In these circumstances the Court could have declared that

the decisions that had been taken did not have a proper legal basis,

or required the local authority to make its decision again taking

account of proper considerations. In conjunction with its wardship

jurisdiction the Court could have awarded care and control to the

applicants or directed that access be granted.

The Government would also observe that the applicants have

already put their case to the Adoption Panel. Their request that they

be considered as suitable for an adoption placement for D. was in fact

rejected, but they will be entitled to apply to be made parties to any

court proceedings which consider adoption of D. by the prospective

adopters with whom the child is presently placed. The applicants will

therefore be able to make representations to that court on such

matters as they see fit. For example it would be open to the

applicants to argue against the making of an adoption order. Again

this procedure indicates that the applicants do have an effective

remedy before a national authority as required by Article 13 (Art. 13).

B. The applicants

1 The facts

The applicants submit that they were denied any access to D.

from 21 September 1984 until a date in mid-November 1984. The

applicants do not accept that access was denied to them in order to

facilitate D.'s rehabilitation with his parents. The applicants'

access restarted once the rehabilitation programme commenced when they

were able to see D. at his parents' home.

The applicants deny that in June 1985 arrangements were made

for the first applicant to visit D. on her own. The first applicant

was occasionally allowed to visit D. together with his mother, but the

local authority refused to allow the applicants to visit either alone

or together with each other.

The local authority's letter to the applicants of 27 August

1985 stated that a social worker would investigate the applicants'

offer of a home for D. and that the matter would be considered "most

carefully and in great detail". Shortly afterwards the applicants

were visited at home by a social worker. She stayed about 45 minutes

and asked the applicants some questions about themselves. She said

that if D. did not return home to his parents it was most unlikely that

he would be placed with the applicants as they lived too near the

parents. The applicants said they would be prepared to move to

another area. The social worker mentioned adoption and said that the

local authority had no finances to maintain D. in foster care. The

applicants said they would be prepared if necessary to contribute to

his upkeep. The social worker did not visit the applicants again.

The applicants were not invited to the case conferences on 18 October

and 8 November 1985.

The applicants submit that the Code of Practice on Access

encourages local authorities to make provision for access to members

of the child's extended family. Paragraph 28 of the Code states that

local authorities should have clear procedures to deal with complaints

about access from relatives of children in care. Paragraph 33 states

that parents should be informed in writing if termination of access is

being considered and should be told how to make their views known and

how any decisions will be conveyed to them. It is submitted that the

spirit of the Code is that concerned relatives should be in no worse a

position than parents. In this case the local authority decided to

terminate D.'s access to his grandparents on 7 February 1986. The

applicants were not informed in advance that such termination of

access was being considered. The decision on 7 February 1986 was

confirmed at the meeting held on 19 February and 4 March 1986. Though

the local authority were well aware that the applicants wished to make

representation about access to and care of their grandchild, the

applicants were not told about the meetings or invited to make their

views known. The applicants note that the report of the meeting of 6

May 1986 does not state the reasons for refusing access.

The applicants deny that they were not fully open with the

local authority about D.'s injuries or that they deliberately "muddied

the picture". In February 1986 D. was admitted to hospital with

certain injuries. At first the applicants did not know the details or

extent of his injuries. The second applicant was concerned that he

might have been responsible for the injuries as he had smacked D. to

make him let go of an electrical plug and socket. He sent a statement

detailing the incident to the local authority. When the second

applicant was made aware of the extent of D.'s injuries he accepted he

could not have caused them.

The applicants also emphatically deny that they were

"implicated directly or indirectly in the abuse of D". There is no

evidence to suggest that the applicants abused or neglected D. during

their contact with him. The first applicant also denies that she

stated that she was aware that D.'s mother had abused him although she

did acknowledge that D.'s mother found difficulty in coping.

2 Domestic law and practice

Adoption

Grandparents are not automatically made parties to adoption

proceedings involving their grandchildren. It is true that Rule 15(3)

of the Adoption Rules 1984 provides that the Court may direct that any

person be made a party to the proceedings. However, this is a matter

for the Court's discretion and in practice grandparents and other

relatives of children in care are rarely successful in applying to be

joined as parties. No adoption proceedings are commenced until the

child has been successfully placed with prospective adopters. In the

overwhelming majority of cases access to the parents and relatives

will have been terminated sometime before placement. In cases where

the child is in care under the Children and Young Persons Act 1969 the

Court in adoption proceedings has no power to make any order for

custody or access in favour of grandparents. For all these reasons it

is only in exceptional cases that the Court in adoption proceedings

will give leave for grandparents to be involved.

3 Admissibility and merits

Article 6 (Art. 6) of the Convention

The applicants' civil rights

The applicants submit that there is a civil right of a

grandparent to have access to his grandchild. The applicants would

adopt the view of the Commission in the case of Sporrong and Lönnroth

(loc. cit) referred to by the Government that a given privilege or

interest which exist in a domestic legal system may constitute a civil

right, even though it is not described as such by that system.

The applicants reject the Government's submission that, under

domestic law, grandparents have no rights as regards access to their

grandchildren who are not in public care. Legislation such as the

Guardianship of Minors Act 1971 specifically gives grandparents the

right to apply for access to their grandchildren and in the

applicants' submission domestic law recognises the importance to

children of grandparental contact. Though it is not stated in any

statute that grandparents have a "right" of access the applicants

would submit that domestic law by implication recognises that right as

grandparents are permitted to apply for access where it is denied.

The applicants would further submit that any right of access

they had to their grandchild was not extinguished once he was received

into care. Although the continuation of access became a matter within

the discretionary power of the local authority once D. had been

received into care, this did not mean that they no longer had any

right in regard to access, since the Code of Practice on Access makes

express reference to preserving contact with a child's natural family,

including grandparents. It would be inconsistent with this aim if the

making of a care order were automatically to divest the grandparent of

all further rights in regard to access.

The applicants submit that they have no access to any

independent and impartial tribunal established by law to determine

their civil rights. It was not open to them to commence proceedings

for judicial review. The applicants were not invited to the meetings

at which the local authority made their decisions and have no access

to the relevant minutes and reports arising from those meetings. The

applicants do not know why they were rejected as possible carers for

D. or why it was considered to be in his interest that access to them

should cease. The applicants are unaware of the principles upon which

the local authority acted and of the matters the local authority took

into account. The applicants could not have obtained leave to

commence proceedings for judicial review without some concrete

evidence that the local authority had acted on wrong principles or

taken irrelevant matters into account.

The applicants would further submit that proceedings for

judicial review would not have constituted an effective remedy for the

determination of their civil rights. They would refer to the judgment

of the Court in W v. the United Kingdom (loc. cit.) where the Court

found that the powers of the English courts as regards access did not

satisfy the requirements of Article 6 (Art. 6).

The applicants disagree that they could have requested the

Juvenile Court to allow them to make representations. The applicants

further submit that, as the Juvenile Court in care proceedings has no

power to adjudicate upon an application by grandparents for access to

or custody of their grandchild, any right of grandparents to make

representations to the Court would not constitute a remedy which

satisfies the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.

Article 13 (Art. 13) of the Convention

The applicants submit above that (1) the lack of procedural

safeguards whereby the necessity of the local authority's actions

could be tested and (2) the absence of effective remedies whereby the

applicants could challenge the local authority's decisions constituted

breaches of Article 8 (Art. 8). These matters when taken in conjunction with

Article 13 (Art. 13) constitute a breach of that article also.

As regards the Government's submissions that the applicants

could have intervened in any adoption proceedings, the applicants do

not accept that the applicants could have successfully intervened in

adoption proceedings. However, even if they had been made parties to

the proceedings the Court on hearing the application for adoption

would have had no power to make any order for access or custody in the

applicants' favour. The applicants therefore submit that this

procedure does not constitute an effective remedy which satisfies the

requirements of Article 13 (Art. 13).

THE LAW

1 Article 6 (Art. 6) of the Convention

The applicants complain that they have no effective access to

court to apply for custody of and/or access to their grandchild

contrary to Article 6 (Art. 6) of the Convention.

Article 6 (Art. 6) of the Convention provides:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair and public hearing within a reasonable time by

an independent and impartial tribunal established by law..."

The Commission recalls first of all that the case-law of the

Commission and the Court has established that Article 6 para. 1 (Art. 6-1) of

the Convention guarantees to everyone an effective right of access to the

courts for the determination of their civil rights and obligations. The

Commission must therefore consider whether a right was at all involved in the

present case and, if so, whether that right was a civil right within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission notes that, generally speaking, Article 6 para.

1 (Art. 6-1) of the Convention is not aimed at creating new substantive rights

which have no legal basis in the State concerned but at providing

procedural protection to rights which are recognised in domestic law.

It is not however decisive whether a particular benefit or expectation

is characterised under the domestic legal system as a right since

the term right must be given an autonomous interpretation under

Article 6 para. 1 (Art. 6-1) of the Convention (e.g. Eur. Court H.R., König

judgment of 28 June 1986, Series A No. 27 para. 87). In W v. the

United Kingdom (Eur. Court H.R., W v. the United Kingdom judgment of 8

July 1987, Series A No. 121, p. 32 para. 73) the Court stated:

"It is true that Article 6 para. 1 (Art. 6-1) extends only to

'contestations' (disputes) over (civil) 'rights and

obligations' which can be said, at least on arguable

grounds, to be recognised under domestic law; it does

not in itself guarantee any particular content for

(civil) 'rights and obligations' in the substantive law

of the Contracting States (see, amongst other authorities,

the Lithgow and Others judgment of 8 July 1986, Series A

No. 102, p. 70 para. 192)."

The applicants in the present case claim that their right to

access and/or custody is a civil right. The Government however submit

that under English law grandparents do not have any legal rights over

their grandchildren and that such rights which can be said to exist in

relation to children are normally vested jointly in the children's

parents.

An examination of English law discloses that in certain

circumstances grandparents may be able to introduce legal proceedings

dealing with the welfare of their grandchildren or applying for

custody of and access to their grandchildren (see Relevant domestic

law and practice). However, while such possibilities do exist under

the Children Act 1975, adoption legislation and the wardship

procedure, the Commission notes that these provisions apply generally

to any persons who fulfil the relevant criteria and are not rights

which accrue to applicants as a consequence of their status as

grandparents.

Section 14A of the Guardianship of Minors Act 1971 makes

specific provision for grandparents but this only gives a grandparent

the right to apply to a court for access where an order in relation to

access or custody has already been made by the court in respect of the

father or mother of the child in question and, in such circumstances,

the court may in its discretion award access to a grandparent. This

provision allowing grandparents to apply to the court however does not

apply in respect of a child in care. Accordingly, this provision

which appears to have been designed to deal with the consequences of

the breakdown of marriage confers no substantive right of access by

grandparents to a child in care. The Commission therefore finds that

this limited procedural provision confers no substantive rights of

access capable of falling within the scope of the concept of civil

rights.

The Commission also recalls the Statutory Code of Practice on

Access, issued pursuant to Section 12G of the Child Care Act 1980,

which states that consideration of access should take into account the

wider family, specific reference being made in this context to

grandparents. However it appears that the Code is intended as

providing guidelines to local authorities and others concerned in

child care and does not lay down any binding requirements or

obligations in this respect nor confer any rights of access or

custody. At most, this would appear to give relatives, including

grandparents, an expectation that they should be considered in the

course of reaching decisions concerning access to a child in care.

In these circumstances, the Commission concludes that the

domestic law of England does not recognise any right of grandparents

to access to or to custody of their grandchildren in care.

The Commission accordingly finds that the applicants'

complaints do not involve a civil right or obligation within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention. It follows that

this part of the application must be dismissed as incompatible ratione materiae

with the provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2 Article 13 (Art. 13) of the Convention

The applicants also complain that they have no remedy in

respect of their complaints, since they had no locus standi within the

care proceedings and wardship proceedings would have been ineffective.

Article 13 (Art. 13) of the Convention provides:

"Everyone whose rights and freedoms as set forth in

this 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."

Insofar as the applicants complain of interference with their

right to respect for family life under Article 8 (Art. 8), the Commission

recalls that the case-law of the Court and the Commission establishes

that for Article 13 (Art. 13) to apply, an applicant's claim that a provision

of the Convention has been breached must be an arguable one (see e.g. Eur.

Court H.R., Leander judgment of 26 March 1987, Series A No. 116, p. 29 para. 77

and Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A No.

131 para. 52).

The Commission recalls that in its partial decision on

admissibility dated 9 March 1988 it found that, in relation to the

limitations on access afforded to the applicants during the periods

from the end of September to the end of November 1984 and from June to

November 1985, the restrictions imposed did not disclose any lack of

respect for the applicants' family life, bearing in mind the

relatively short duration of and background to those restrictions. In

all the circumstances, the Commission does not consider that there was

an arguable case that during those periods there was a violation of

Article 8 (Art. 8).

The Commission also found that the decision to terminate

access taken in 1986 was justified within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention as being necessary in a democratic society

for the purpose of protecting the health and rights of others, namely,

the child. The Commission notes that D. had been a victim of a series

of non-accidental injuries since his birth and though attempts had

been made to rehabilitate D. with his natural family, these had proved

unsuccessful. The Commission also on examination of the facts of the

case rejected the submission of the applicants that they were

insufficiently involved in the decision-making process. The

Commission recalls in this context that the applicants were invited to

make representations at three meetings with the local authority and

were then able to present their views concerning access and custody of

D. and seek a review of the situation. The Commission is therefore of

the opinion that the applicants have failed to establish an arguable

claim that their degree of involvement was not such as to show respect

for their family life.

In these circumstances, the Commission finds that the facts of

the case fail to disclose that the applicants have an arguable claim

that Article 8 (Art. 8) of the Convention has been breached. The Commission

accordingly finds no appearance of a breach of Article 13 (Art. 13) of the

Convention. It follows that this complaint is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

Insofar as the applicants invoke Article 13 (Art. 13) in relation to

their complaints of lack of access to court under Article 6 (Art. 6), the

Commission recalls that it has found the applicants' complaints under

Article 6 (Art. 6) incompatible ratione materiae with the provisions of the

Convention. It therefore follows that their complaint under Article

13 (Art. 13) in this regard must also be dismissed as incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)