APPLICATION/REQUÉTE N° 9276/81 C. v/the UNITED KINGDO M C. c/ROYAUME-UN I DECISION of 17 November 1983 on the admissibility of the application . DECISION du 17 novembre 1983 sur la recevabilité de la requête . Ar[icle 6, paragraph 1, of the Convention : Do proceedings in which, after the withdrawal of parenta! authority by court décision, the parents challenge an adminis- trative decision, depriving them of all contact with their children, constitute a deter- mination of civil rights and obligations ? (Complaint declared admissible) . Article 8 of the Convention : Children taken from their parents, pursuant to a court decision, and placed in the care of the local authoriry's social services . Social services' decision to stop all contact between the children and their parents, without consulting the latter. Is such a procedure in confonni ty with the right to respect for family life ? ( Complaint declared admissible) . Article 13 of the Convention : 7he word "rentedy", w•ithin ihe meaning of this pro- vision, does not mean a remedy bound to succeed, but simpiv an accessible remedy before an authori ry competent to examine the merits of a complaint . When the right claimed is of a civil character the guarantees of Anicle 13 are superseded by those of Article 6 para. 1 . Article 6, persgraphe 1 de la Convention : Une procédure par laquelle, après retrait de l'autorlté parentale par décision judiciaire, des parents contestent une dé- cision administrative les privant de tout contact avec leurs enfants pone-t-elle sur une contestation sur des droits et obligations de caractère civil ? (Grief déclaré recevable) . Article 8 de la Convention : Enfants enlevés à leurs parents par décision judiciaire et confiés aus soins du service administratif de protection de la jeunesse . Décision de ce service d'interrompre tout contact entre les enfants et leurs parents sans qu e - 13 - ceux-ci aient été consultés . Pareille procédure est-elle conforme à la garantie du respect de la vie familiale ? (Grief déclaré recevable) . Article 13 de la Convention : 1-e mot « remedy » (version anglaise), dans le conteste de cette disposition, ne signifie pas un recours voué au succès mais simplement l'ou- verture d'un recours auprès d'une autorité compétente pour en apprécier le bien fondé. lorsque le droit revendiqué est un droit de caractère civil, les garanties de l'ar- ticle 13 s'efjacent devant celles de l'article 6, par. 1 . THE FACTS (français : voir p. 22) The facts as they have been submitted by the applicant, an Irish national born in 1943 and living in England, may be summarised as follows : The applicant is represented before the Commission by Messrs Elgoods, solici- tors, of Cheltenham . He was married in 1967, but is now separated from his wife . During their marriage they had seven children . Between 1970 and 1973 they rented accommodation from the local authority where their first three children were born . In 1973 the family emigrated to Denmark, but returned in the same year having been unable to find suitable accommodation . Since they were homeless on their arrival, the parents put their children volun- tarily into care . Once they found accommodation the children rejoined the parents, but the applicant put the children back into voluntary care on two subsequent occa- sions, since the house in which they lived was in a bad state of repair . Their fourth child was bom in November 1973 . On I1 January 1974 a Care Order was made in respect of all the children by the local Juvenile Court . The applicant meanwhile succeeded in obtaining more satis- factory accommodation where the children visited their parents at weekends and fi- nally retumed home for a trial period . As a result, on 13 June 1975, the applicant successfully applied, with the support of the welfare authorities, to the Juvenile Court to discharge the Care Order in respect of their four children . The Care Order was replaced by a Supervision Order . The parents' fifth child was born in October 1975 . On 2 July 1976 a Care Order was imposed on all the children by the Juvenile Court. Proceedings to this effect were brought by the local authority under - 14- Sections I and 2, para . 2, Children and young Persons Act 1969*, following concern as to the children's welfare, which was brought to a head when the applicant assault- ed the eldest child. The aplicanl appealed from this decision to the Crown Court, which dismissed the appeat on 9 September 1976 . The children remained in a children's home until December 1976, where the applicant visited them more than once a week . The possibility that the two youngest children would be returned home was discussed, but not implemented . In December 1976 the two eldest children (then aged 8 and 6) were placed with foster parents near the town where the applicant lived and the next eldest was placed • Sections 1 and 2 . para . 2 Children and Young Persons Act 1969 provide : 1 . (I) Any local authority . . . who reasonably believes that there are grounds for making an order under this section in respect of a child or young person may . . bring him before a juvenile coun . (2) If the coun before which a child or young person is brought under this section is of opinion that any of the following conditions is satisfied with respeci to him, that is to say : a . his proper development is being avoidably prevenled or neglected or his heelrh is being avoidably impaired or neglected or he is being ilbtreated : or b . it is probable that the condition sel oul in the preceding paugraph will be satis fi ed in his case, having regard to the fact Ihat the coun or another coun has found that that condition is or was satisfied in the case of another child or young person who is or was a member of the household to which he belongs ; or c . he is exposed lo moral danger : or d. he is beyond the control of his parent or guardian : or e. he is of compulsory school age within the meaning of the Fducation Act 1944 and is not receiving eff¢ienl full-lime education suitable to his age, ability and aptitude ; o r J. he is guilty of an offence . excluding homicide , and also Ihat he is in need of care or contml which he is unlikely to receive unless the court makes an order under this section in mspect of him, then, subject io the following provisions of this section and seations 2 and 3 of this Act. the coun mey if it thinks fn make such an order . (3) The order which a coun may make under this section in respect of a child or young person is : a . an order requiring his parent or guardian to enter into a recognisance to oke proper care of him and exercise proper control over him : o r b . a supe rv ision order : or o . a care order (other ihan an inierim order) ; or d. a hospiul order within the meaning of Pan V of the Menul HrJlth Act 1959 ; or e . a guardianship order within the meaning of that Act . 2 . (2) If it appears to a local aulhority Ihal Ihem are grounds for bringing care proceedings in respecl of a child or young person who resides or is found in their area, it shall be the duty of Ihe authority to exercise Iheir power under the preceding section to bring care proceedings in respect of him unless they are satisfied Ihat n is neitAer in his interest nor the public inmrest to do so or thai some other person is about to do so or to charge him with an offence . - 15 - with other foster parents in the same town . The applicant continued to have access to them . The two youngest children remained at the same children's home until February 1978 . In March 1977 Lhe applicant's sixth child was bom . The applicant and his wife continued to visit the children once a week, but the foster parents complained that these visits upset the children . In February 1978 the two youngest children were placed with foster parents at an address which the appli- cant has not been given by the local authority responsible . It is not clear when or by whom this decision was taken, although it appears likely that it was reached at a case conference, attended by the social workers responsible for the children. The applicant does not appear to have been informed of such a conference and was not invited to anend it, if it was held . In June or July 1978, the social worker, who was reponsible for the family, proposed that future visits between the parents and the five children in care should be at the Social Services building in the town where the applicant lived, and the first such visit took place with all the children in July 1978 . The visit lasted about one hour . The applicant submits that, despite persistent attempts, the second such visit only took place in April 1979, when the parents saw the children for about 45 minutes . The parents took legal advice, with a view to establishing their right to ac- cess, and applied to the Juvenile Court to revoke the Care Order, by way of appeal under Section 21, para . 2 of the Children and Young Persons Act 1969• . This appeal could not consider the isolated question of access, since the Juvenile Court had to decide whether or not it was appropriate to discharge the care order as a whole. This application was refused on 13 June 1979 . • Section 21 Children and Young Persons Aci 1919 provide s 21 . (2) If il appears to a juvenile coun, on the application of a local authority to whose care a person is commined by a care order or on the application of that person . that it is appropriate to discharge the order . Lhe coun may discharge it and on discharging it may . unless it was an interim order, and unless the person, to whom the dixcharged order related, has attained the age of eighteen, mzke a supervision order in respect of him . (7) Where an application under the preceding subsection for the discharge of a care order is dismissed, then b . in any other case, no funher application for its discharge shall be made under this subsection by any person during the period of thnx months begining with the date of the dismissal, except with the consent of a juvenile coun . (4) The person to whom the relevant care order relates, or related, may appeal to quarter sessions againsl an order under subsection (I) of this section . or a supervision order made in pursuance of subsection (2) of this section, or the dismissal of an appliration under the said subuction (2) for ihe discherge of the cam order - 16- The applicant's solicitors then wrote to the Social Services Department of the local authority, seeking regular access for the parents to their children . On 10 July 1979 the Department replied in the following terms : "Further to my letter of the 20th June, a case conference has now been held to determine our future policy in respect of the five children in the care of this authority . As you will no doubt appreciate, our paramount consideration must be the best interests of the children . In coming to a decision, the case conference was very aware of Section 59 of the Children Act 1975 which, 1 quote, 'in reaching any decision relating to a child in their care, a local authority should give first con- sideration 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 .' As a result of the unsuccessful ap- plication by the applicant and his wife to have the Care Orders on their children in the care of the local authority discharged, the real desire of all these children to remain with their foster parents was emphasised. The case conference there- fore decided that the best interests of the children would be served by them re- maining on a long term basis with their present foster parents . The visits which the applicant and his wife have made to their children in the past have proved quite unsettling for the children and their foster parents . In view of the fact that we see these children remaining in long term care, empha- sis should be placed on helping the children feel secure and happy in their foster homes. I therefore have to inform you that, in the interests of the children, there should be no contact with their natural parents . 1 do appreciate that this decision will be a matter of deep disappointment to the applicant and his wife. My social worker will be in touch with them in the near future and will be pleased to discuss with the applicant and his wife in more detail the reasons behind this decision . " The parents issued an Originating Summons on 25 February 1980 whereby the five children in care were made wards of Court, attempting to raise thereby the ques- tion of their access to the children . On 2 April 1980 the local authority applied for the wardship to be lifted, to which the parents contended that while the local auth- ority should continue to have care of the children, they should have access to them . The question whether the High Coun had jurisdiction to consider the parents' application for access, in the context of wardship proceedings, and whether th e - 17 - wardship order should continue, was heard by the High Court on 6 October 1980 . The judge held that : "This Court does not sit as a Court of Appeal in relation to decisions of the local authority and can only interfere with a decision of the local authority on the basis of the principles governing the interference with statutory discretions given to statutory bodies ; that is, this Court can only interfere if it is satisfied that the local authority has taken into account matters which it should not have taken into account, or has not taken into account matters which it should have taken into account, or it can interfere if it comes to the conclusion that the local authority has come to a decision which no reasonable local authority could have come to. It can also interfere, of course, if it were satisfied that the local authority had been acting in bad faith" . Given this limited jurisdiction, the judge held that the Local Authority's deci- sion to refuse the parents further access was not impeachable on any of the above grounds and therefore mûst stand . The wardship order was therefore dismissed . The applicant was advised that, although an appeal would have been possible from this decision, such an appeal would have had no prospect of success in the light of the established case-law of the Court of Appeal (exemplified by Re W [ 1979 1 AER at 154) establishing the limits of the High Court's jurisdiction in such cases . This view is confirrned by the decision of the House of Lords in A . v. Liver- pool City Council [19811 AER 385, where it was held on a "leap frog" appeal, direct from the High Cou rt, pursuant to Section 12 Administration of Justice Act 1969. that the Court's inherent wardship jurisdiction did not permit the review of the merits of the decision of a local autho rity having the care of a child to restrict parental access to it . COMPLAINT S The applicant complains that access to his five elder children has been denied him by the decision of the Iocal authority, and that he is unable to challenge the sub- stance, rather than the legal validity, of this decision . He invokes Articles 6, 8 and 13 of the Convention . THE LAW 1 . The applicant complains first that when he was denied access to his five elder children, who are in the care of the local authority, he was unable to challenge the substance, rather than the legal validity, of this decision, owing to the limited reme- dies available to him . The applicant's complaints relate to the sphere of his famil y - 18 - life with his children. He complains about the procedures for taking decisions con= cerning their future and his access to them, and the remedies available to him to challenge these decisions of the local authority . He invokes Article 8 of the Con- vention in conjunction with Articles 6 and 13 . The respondent Government have contended that the applicant's parental rights vis-à-vis his children were vested in the local authority by the imposition of the Care Orders by the Juvenile Court . They contend that the effect of these Orders was to suspend the applicant's enjoyment of parental rights, while the Care Orders con- tinued . Amongst the obligations transferred thereby to the local authority was that of deciding who could properly have access to and contact with the children, while they were in care . In the respondent Govemment's contention no right of access in favour of the applicant was created by, or subsisted after, the imposition of the Care Orders . Article 8 of the Convention provides as follows : "I . 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 eco- nomic 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 free- doms of others . " The question of the existence or non-existence of "family life" is essentially a question of fact depending upon the real existence in practice of close pe rsonal ties and, according to the established case law of the Commission and the Cou rt, "respect" for family life in this sense implies : "An obligation for the State to act in a manner calculated to allow these ties to develop normally" (Eur . Court H .R. Marckx Case, Judgment of 13.6.1979, para. 45) . This obligation is not limited to compelling a State to abstain front interference with family life, but, as the Court recognised in the same judgntent (para. 31), this provision may require the existence in domestic law of legal safeguards that render family life possible . The primacy of a natural parent's relationship with his or her child as family life is clearly implicit in the terms of Articles 8 and 12 of the Con- vention and Article 2 First Protocol, but the Commission has equally recognised that in proceedings relating to the welfare of children, the interests of the children them- selves may override those of their natural parents . Such a possibility is recognised by Anicle 8, para . 2 of the Convention, and an interference with family life, and wit h - 19 - the primacy of a natural parent's relationship with his or her child, may be justifiable under Article 8, para. 2 in the interests of the child's health . However, in this case the Commission is called upon first to examine the ques- tion whether the provisions of domestic law, which are referred to in Article 8, para . 2, do in themselves show "respect" for family life . As the Court recognised in the Marckx judgment (supra, para. 31), the State has a choice of various means by which domestic law may provide legal safeguards which ensure respect for central aspects of family life, but a law which fails to satisfy this requirement violates Arti- cle 8, para. 1, without there being any call to examine it under Article 8, para . 2 . Under English law the local authority in whose care the children were, had to take, as its first consideration, the need to safeguard and to promote the children's welfare, an approach which necessarily left a considerable discretion to the local authority as to how this principle should be applied . This discretion included ques- tions which were crucial for the children's future and for the applicant's relationship with them, such as the question of whether, and in what circumstances, to allow the applicant continued access to them, and whether they should be placed with foster families on an interim or a long term basis . The discretionary area also included the question of how fully, and when, the applicant and his wife should be informed that such options were being discussed, and of his participation in the discussion and knowledge of the decisions taken . The Commission recalls that the Court has held (Eur . Court H .R. Case of Sil- ver and Others, judgment of 25.3.1983, para. 90) that the interference with an indi- vidual's right guaranteed by the Convention must necessarily be subject to control and that this is especially so where, as in the present case, the law gives the executive wide discretionary powers . In the present case the question arises whether the proce- dures for the local authority's decision, which affected the applicant's family life, contained sufficient safeguards, and showed respect for the applicant's family life . The Commission finds that the conformity with Article 8 of the decision- making machinery conceming parental contact with the children, and the applicant's opportunity to influence or participate in the decisions in question, raises difficult questions of fact and law, which are of such complexity that their determination should depend upon a full examination of the merits . This part of the application is not, therefore, manifestly ill-founded and must be declared admissible, no other ground for declaring it inadmissible having been established . 2. The applicant further contplains that he was denied an "effective reniedy", within the nteaning of Article 13 of the Convention, and a "fair hearing within a reasonable time before an independent and impartial tribunal", within the meaning of -20- Article 6. para . I of the Convention, in relation to his dissatisfaction with the deci- sion of the local authority to restrict and terminate his access to the children . The respondent Government contend that, in as far as the applicant retained rights vis-à-vis his children after the making of the Care Orders, adequate remedies were available to him to attempt to vindicate his claims, in conforrnity with Arti- cles 6 and 13 of the Convention . According to the established case-law of the Commission interpreting Arti- cle 13, an applicant who claims that his rights guaranteed by the Convention have been violated, must have an effective remedy before a national authority for that claim. The word "remedy"in this sense does not mean that the applicant's claim must be vindicated and that the applicant must "win" . He must have an opportunity for his claim to be exantined by a national authority conforming to the requirements of Article 13, which is able to examine the remrits of his complaint . The Convention provides a fuller procedural guarantee in respect of certain claims (e .g. civil rights in Article 6, para. I) and the Commission has recognised that the procedural guaran- iees of Article 6, para . I take precedence over those of Article 13, where a"civil right" is at issue . because of guarantees of this Article are more rigorous that those of Article 13 . The Commission notes that certain remedies were available to the applicant, and he made use of them . However there was no specific remedy available to him for the sole question of his access to his children, except through the wardship proceedings, which were discharged by the High Court, because no illegality had been established in the local authority's conduct under the Care Orders . The Contntission considers that, in the circumstances of the case . it cannot decide whether the question of the applicant's access to his children involved the "determination of civil rights"within the meaning of Article 6, para . I of the Con- vention and, if so . whether the requirements of that Article were satisfied by the proceedings in question, without a full examination of the law and facts of the case . In addition the question whether the applicant had an "effective remedy"for the in- terference he alleges with his right to respect for his family life, as required by Arti- cle 13 of the Convention, also raises difficult questions of fact and law, which can only be resolved by an examination of the merits . It follows that these complaints cannot be declared manifestly ill-founded, and are therefore admissible- no other ground for inadmissibility having been established . For these reasons, the Commission, without in any way prejudging the merit s DECLARES THE APPLICATION ADMISSIBLE . - 21 - (TRADU(TION) EN FAIT Les faits, tels qu'ils ont été exposés par le requérant, resso rtissant irlandais né en 1943 et vivant en Angleterre, peuvent se résumer comme suit : Le requérant est représenté devant la Commission par MM . Elgoods, solicitors à Cheltenham . Il s'est marié en 1967 mais il est maintenant séparé de son épouse, avec laquelle il a eu sept enfants . Entre 1970 et 1973, ils ont loué à la municipalité un logement où sont nés leurs trois premiers enfants . En 1973, Ia famille a émigré au Danemark mais elle est revenue la mème année, n'ayant pas pu trouver de loge- ment adéquat . Etant sans domicile à leur arrivée, les parents ont volontairement mis leurs enfants à l'assistance publique . Lorsqu'un logement fut trouvé, les enfants rejoigni- rent leurs parents mais, par la suite, le requérant remit volontairement les enfants à l'assistance à deux reprises car la maison où vivait la famille était en mauvais état . Le quatrième enfant est né en novembre 1973 . Le 11 janvier 1974, le tribunal local pour enfants a rendu une ordonnance de placement à l'égard de tous les enfants . Entretemps, le requérant avait réussi à obte- nir un logement plus satisfaisant, où les enfants rendaient visite à leurs parents le week-end et où ils ont fini par venir vivre en perrnanence pendant une période d'essai . A)a suite de cela, le 13 juin 1975, le requérant obtint, avec l'aide des se rvi- ces de protection sociale, la révocation par le t ribunal pour enfants de l'ordonnance de placement concemant ses quatre enfants . Celle -ci fut remplacée par une ordon- nance de surveillance . Le cinquième enfant est né en octobre 1975 . Le 2 juillet 1976, le tribunal pour enfants a rendu une ordonnance de placement concemant l'ensemble des enfants . Une action en ce sens avait été engagée par la municipalité en application des anicles 1 et 2, par . 2, de la loi de 1969 relative aux enfants et adolescents• en raison de préoccupations concernant le bien-être des enfants, apparues lorsque le requérant s'est livré à des violences sur l'aîné. Le requé- rant a fait appel de cette décision auprès de la Crown Court, qui l'a débouté le 9 sep- tembre 1976 . • Les aniclee I et 2, par . 2, de la loi de 1969 relative aux enfanrs et adole.scenls sont ainsi libellés 1 . (1) Toute autorité locale . . . qui est raisonnablement convaincue qu'il y a eu lieu de rendre une ordon- nance en application du présent anicle à légard d'un enfant au dun adolescent peut . . . le trvduire devant un tribunal pour enfants . (2) Si le tribunal devant lequel un enfant ou un adolescent est traduit en application du présent anicle estime que lune des conditions suivantes est remplie à son égard, c'esi-à-0im que : (voir suite au vereo) - 22 - Les enfants sont restés jusqu'en décembre 1976 dans un foyer pour enfants où le requérant leur rendait visite plus d'une fois par semaine . La possibilité de renvoyer chez eux les deux plus jeunes a été évoquée mais pas mise à exécution . En décembre 1976, les deux aînés (âgés alors de 8 et 6 ans) ont été mis en nour- rice près de la ville où vivait le requérant et le troisième a été placé chez d'autres parents nourriciers dans la même ville . Le requérant continuait de pouvoir leur ren- dre visite . Les deux plus jeunes enfants sont restés dans le méme foyer jusqu'en février 1978 . En mars 1977 est né le sixième enfant du requérant . (suirel a . son développement est entnvé ou négligé d'une manière qui pourrait ftre évitée ou sa vnté est affaiblie ou négligée d'wrc manière qui pounait 2tre évitfe ou il est maltradé ; ou b. il est probable que la conditionlnoncée au paragraphe précédent esr remplie en l'espèce, eu égard au fah que ce uibunal ou un amre tribunal a consuté que cene condilion iuit ou avait été mmplie dans le cas dun auve enfant ou adolescenl qui est ou a été membre de la famille à laquelle l'intéressé appanienr ; a u r . il esl exposé à un danger moral ; ou d . il échappe au contrôle de son parent ou tuteur ; ou e . il est à l'ige de l'fcole obligatoire, au sens de la loi de 1944 relative à l'enseignement, et il ne recoil pas un enseignement effectif! plein lemps, approprié à son Bge, ses capacités ou ses aptitudes ; o u f. il est coupable dune infrection . 8 l'enclusion de l'homicide , et aussi qu'il a besoin de soins ou dune surveillance qu'iI ne guère de chances dobtenir si le tribunel ne rend pas à son égard une ordonnance en application du présent anicle, le tribunal peut alors, sous réserve des dispositions suivantes du présent anicle et des anicles 2 et 3 de la présente loi, rendrt, s'il l'estime appro- prié, une telle ordonnanc e (3) L'ordonnance que peut rendre un tribunal en application du présent anicle à l'égard d'un enfanl au d'un adolescent esl a . une ordonnance obligeanl son parent ou tuteur à s'engager à prendre converublement soin de lui et à le surveiller convenablement ; o u b. une ordonnance de surveillance ; ou r. une ordonnance de placement (non provisoire) , o u d. une ordonnance de placement en milieu hospiulier, au sens du Titre V de la loi de 1959 relative à la santé menule t ou r . une ordonnance de lutelle, au sens de ladite loi . 2 . (2) Si une autorité locale estime qu'il y a lieu d'engager une proctdum de placement 01'égaN d'un enfant ou d'un adolescent résidanl ou trouvé dans sa commune, elle doit exercer le pouvoir prévu à l'anicle précé- dent d'engager une procédure de placement à sonlgard, sauf si elle est convaincue que cela ne senir ni dans l'intér2t de cet enfant ou de cet adoleecent ni dans l'intér2t du public ou qu'une autre personne est sur le point de le faire ou d'accuser c