ITEMID: 001-87896
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SUKHORUKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1953 and lives in Ust-Labinsk, a town in the Krasnodar Region.
5. On 31 March 1999 the Ust-Labinskiy District Court awarded the applicant 2,000 Russian roubles against a local welfare authority for a delayed payment of social benefits. This judgment became binding on 6 May 1999, but has not been enforced to date.
6. On 1 June 1999 the applicant submitted enforcement papers to bailiffs, and on 29 June 1999 the bailiffs passed the papers to the Treasury. In December 2001 the Treasury returned the papers to the applicant, because in the meantime the procedure of enforcement had changed.
7. To vindicate his right to a timely enforcement of the judgment, the applicant sued bailiffs for pecuniary and non-pecuniary damages. On 16 August 2002 the District Court rejected this claim, having found that the bailiffs had done everything they should have done to enforce the judgment.
8. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-109557
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF Y.C. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1962 and lives in Bridgwater.
6. The applicant’s son, K., was born on 21 April 2001. The father of the child is P.C. P.C. is partly incapacitated due to breathing and circulation problems and sometimes uses a wheelchair. The parents were in a relationship for around fourteen years and are not married.
7. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. Thereafter, incidents of domestic violence escalated from the end of 2007 with the police being called to the family home on numerous occasions. The parents resisted the involvement of social services. The local authority offered them assessments at Turning Point in respect of their use of alcohol but these were declined. Although in many instances the applicant was the victim of assaults by P.C., she was on one occasion arrested for assaulting him and on another occasion K. injured her while defending his father from an attack by her. On 3 June 2008 P.C. was arrested and taken into custody when K. was injured in the course of a violent incident between his parents.
8. On 4 June 2008 the local authority applied to the Family Proceedings Court for an emergency protection order (“EPO” – see paragraph 92 below) in respect of K. The application was heard the same day.
9. The court made an EPO, limited in time to 10 June 2008, for the following reasons:
“There is significant risk of further harm – emotional and physical abuse if [K.] is not removed from his current environment. We are concerned about the mother consuming alcohol to excess when in sole charge of [K.] and further possible violent conflict when father is released probably on bail tomorrow. This is in light of previous domestic violent incidents between the parents in [K.]’s presence, which could lead to further physical harm to [K.].
10. The court took into account K.’s right to respect for his family life but considered that he should be protected and placed in a safe environment.
11. On 5 June 2008 the local authority applied for a care order (see paragraph 93 below) in respect of K., with interim care orders (see paragraph 95 below) as requested. In its application, the local authority referred to the high level of police involvement in the family due to incidents of domestic violence and alcohol abuse and the need for a full assessment to be undertaken.
12. On 6 June 2008 the applicant attended a meeting where she informed the local authority that she had separated from P.C. She then had a contact session with K. and after the session, was observed walking with and talking to P.C.
13. A hearing took place on 10 June 2008 and an interim care order (“ICO”) was made, to expire on 8 July 2008.
14. K. was placed in the care of foster parents, with frequent contact with the applicant and P.C. A guardian was appointed for K. In her Initial Analysis and Recommendation report, dated 23 June 2008, she described K. as a “very traumatised little boy”. She strongly recommended the appointment of a psychologist as soon as possible.
15. As P.C. contested the proposed renewal of the ICO, a contested ICO hearing was fixed for 8 July 2008.
16. The applicant and P.C. attended Turning Point to assess their alcohol dependency. Reports were prepared, on 30 June 2008 in respect of the applicant and on 1 July 2008 in respect of P.C. It was found that neither party was dependent on alcohol. In the applicant’s report, it was noted that she acknowledged the existence of a long, abusive relationship with P.C. that had involved the use of alcohol and that she had talked about the difficulty of dealing with the recent loss of her mother. The report recommended bereavement counselling, emotional support and activities to help the applicant rebuild her self-esteem and confidence to be able to cope with the changes occurring in her life.
17. At the contested ICO hearing on 8 July 2008 the court had sight of the guardian’s report and heard evidence from the guardian, three social workers and P.C. It made a further ICO, to expire on 5 August 2008, referring to the history of domestic violence and noting:
“We understand that [P.C.] and [the applicant] are currently residing at different premises but we are not convinced that they have separated on a permanent basis ...
We have had sight of the Turning Point reports in which it is reported that [P.C.] and [the applicant] are not alcohol dependent; however we are not convinced that they will not continue to drink to excess in the future. Further counselling in respect of their alcohol consumption will benefit both parties as would domestic violence counselling. We are pleased that [the applicant] has made efforts to access help from various agencies ...”
18. The court noted that the guardian supported the renewal of the ICO and continued:
“... [K.] should not be returned to either parent until each has been assessed for their parenting ability and receive any necessary support. ...”
19. It considered K.’s right to respect for his family life and concluded that the making of the ICO was a proportionate response to the situation.
20. Further ICOs were made on 5 August 2008, 2 September 2008, 30 September 2008, 28 October 2008, 11 November 2008, 2 December 2008, 15 December 2008, 12 January 2009, 9 February 2009 and 9 March 2009.
21. In the meantime, K. was examined by D.I., a psychologist, who produced an expert report dated 13 August 2008.
22. As to K.’s perceptions of his mother and father, the report noted that he both loved and feared his parents and that his main concern was the arguing and shouting that he associated with his parents. Regarding the possible psychological implications of the domestic violence and alcohol abuse he had witnessed, D.I. described the emotional damage suffered by a child growing up in an “invalidating environment”. He noted that K. demonstrated some of the characteristics of such damage, but was also showing signs of resilience.
23. In terms of therapeutic work which should be undertaken with K., D.I. said that K.’s main need was to have a stable and safe environment with predictable relationships where he could play and grow in self-esteem, and have experiences which developed happy feelings and a sense of self efficacy. D.I. noted that K. appeared to be experiencing this in foster care and at school and commented:
“[K.’s] parents would do well to consider the positive effects that [K.’s] relationship with them can have upon his development and sense of identity should they address the issues that underlie their violence and drinking.”
24. He highlighted the need to focus on K.’s sense of identity and his emotional development, problem solving, cognitive functioning, self-esteem and social competence.
25. The social worker appointed to K. carried out a formal parenting assessment of the applicant from July to September 2008, based on five sessions between the applicant and social workers and observations of the supervised contact sessions with K. When the assessment began the applicant was living alone at the family home. She told the social worker that she had ended her relationship with P.C. and she would not consider re-establishing it unless he changed his behaviour towards her and his relationship with alcohol. All the meetings took place while the applicant was separated from P.C. However, on 13 August 2008 P.C. confirmed to the local authority that he had moved back into the family home and was once again in a relationship with the applicant. The applicant subsequently informed that court that she and P.C. had reconciled. She explained that they had been together for a long time and that the relationship had, with the exception of the previous twelve months, been strong and stable.
26. In an undated parenting assessment report in respect of the applicant completed after the applicant’s reconciliation with P.C., the social worker noted that she had discussed with the applicant domestic violence and controlling behaviour, and the support that she could access. When asked how she would manage situations in the future if she was no longer in a relationship with P.C. and he came to visit, the report noted:
“[The applicant] said she would allow him in for a coffee. [The applicant] then added that she would not allow alcohol in the house and would throw him out if this happened. [The applicant] was not able to reflect on her past experiences involving [P.C.] and was unrealistic in her responses in regard to this.”
27. The report recorded that although the applicant admitted that she became more argumentative after drinking, she did not consider that the arguments had had any impact on K. or that her parenting ability had been impaired after drinking. She continued to receive support from Turning Point and attended weekly.
28. The social worker commented on the fact that on each of the visits, she had found the applicant’s home to be in good order, clean and tidy. She observed that the applicant demonstrated a strong loving bond towards K. and that she offered him appropriate affection. However, observations of K.’s behaviour and responses suggested that he had developed an insecure attachment. The applicant’s knowledge of the dietary needs of a child were found to be adequate, although in practice it appeared that they ate convenience foods rather than fresh vegetables and that the applicant allowed K. too many unhealthy snacks. The social worker also raised some concerns regarding the applicant’s ability to address and treat signs of illness in K. and the lack of attention paid to K.’s dental care. She noted that the applicant showed poor knowledge of the need for visual stimulation, interaction and setting appropriate routines and that she had difficulty interacting with K. and keeping him occupied for any length of time.
29. The social worker considered that the applicant deferred to P.C. on the majority of issues, apparently because she was afraid of the repercussions of challenging him. The applicant was unable to recognise that the behaviour she described was abusive and that it would have a detrimental effect on K. She unintentionally put K. at risk because her perception of parenting did not afford her the ability to identify risk, make decisions and set appropriate boundaries for K. The report concluded:
“[The applicant] has informed me that she is in a relationship with [P.C.] and that their intentions are to parent [K.] together. [The applicant] cannot be considered a protective factor within the relationship. The Local Authority are concerned about the significant risk that this will place on [K.] if in the care of his parents in terms of all aspects of his development, safety and security.
It is therefore the view of the Local Authority that should [K.] be returned to the care of [the applicant and P.C.] he would be [at] risk of further significant harm.”
30. An undated parenting assessment report of P.C. indicated that a significant concern was that he displayed aggression, intimidation and controlling behaviours when not under the influence of alcohol.
31. Alcohol tests of the applicant and P.C. from samples collected on 30 September and 11 September respectively showed no evidence of frequent excessive alcohol consumption.
32. The social worker prepared further statements for the court following the parenting assessment reports. In a statement dated 21 September 2008, it was noted that K. had become upset on occasions during contact with the applicant and said that he wanted to go home.
33. Between October 2008 and January 2009 the applicant and P.C. attended a Time to Talk parent support group and had three one-to-one parenting sessions.
34. D.I. also carried out a full psychological assessment of both parents and produced an addendum report dated 3 February 2009. In his report, D.I. noted:
“... [K.] told me when asked that he wants to go home, that his mum likes him and added that his dad takes him out and gives him presents ...”
35. D.I. observed that K. displayed fewer characteristics of emotional trauma than in the previous meeting. When questioned about his relationships with his family he indicated strong positive feelings for his parents, and in particular for his mother.
36. D.I. commented that both parents had told him that they had maintained their abstinence from alcohol, but he said that this would only be tested if they were challenged by situations which mirrored the original issues which prompted them to turn to alcohol. As to their ability to prevent further domestic violence, D.I. referred to incidents of aggressive behaviour by P.C. which he had personally witnessed and noted that this did not “augur well for someone who considers that their aggression is due only to drinking behaviour”. He considered that he had insufficient details of P.C.’s history to make a more accurate prediction. He criticised the parents’ lack of self-awareness and noted that there was still work to be done in this regard. In terms of the parents’ ability to engage meaningfully with professionals, D.I. commented only on P.C., making reference to problems encountered in this respect. Similarly, in so far as their commitment to the care of K. was concerned, D.I. referred to certain indications of P.C.’s level of commitment, with no specific examples of the applicant’s conduct, while making the overall assessment that he was not convinced that the parents had fully taken on board what they needed to learn from their mistakes and what new parenting behaviour they were going to practise.
37. As regards the aspects of each parent’s psychological profile that were likely to assist or hinder their parenting of K., D.I. explained that serious limitations were placed on his assessment of P.C. by his lack of cooperation. In respect of the applicant, he explained:
“[The applicant’s] profile ... is characterized by prominent compulsive, narcissistic and histrionic patterns. This does not imply that she has a personality disorder but does have patterns of behaviour that need addressing ... These patterns need to be addressed by [the applicant] in counselling to address bereavement and domestic violence. Otherwise they will have an impact that hinders good enough parenting. [The applicant’s] love for [K.], her physical parenting to date, participation in the Time to Talk programme and her declared abstinence from drinking thus far are to be praised and built upon.”
38. D.I. noted that K. appeared to see the applicant as the main source and object of his love, but cautioned that K. might be idealising the situation at home as he was no longer there. He continued:
“... [K.] is attached to both his parents. He stated a strong preference to return home. [K.] is less attached to his father than his mother ...”
39. In terms of therapeutic intervention required, D.I. considered that the applicant needed to address her role in the fighting with P.C., with discussion about her drinking, her lack of assertiveness and her inability to impose boundaries on K.
40. On 20 February 2009 the social worker filed her final statement on behalf of the local authority with the court. She indicated that since K. had been taken into care in June 2008, there were no recorded domestic incidents and that both parties had informed her that they were still abstaining from alcohol.
41. She reported that both the applicant and P.C. had “continued to work with professionals to a limited extent”. She gave examples of P.C.’s unwillingness to work with the local authority and how the applicant often found herself in the middle of conflicts between the two.
42. As to K’s own views, she noted:
“... When I have tried to ask [K.] how he would feel about going home he has changed the subject.”
43. In her analysis and conclusions, she noted:
“In a very simplistic form it may appear that [K.] is in the care of the local authority due to his parents drinking and violence and as the parents have self reported that there have been no further incidents and we have no evidence to say there are then [K.] should return home. However there are a significant number of other factors which evidence that there remain extensive concerns.”
44. She referred to attempts by the local authority to conduct a parenting assessment prior to K.’s removal into care, which had been unsuccessful as a result of the parents’ failure to engage. She also referred to the separation of the applicant and P.C. in 2008, which she considered not to have been genuine from the very outset. She raised concerns about K.’s health, and notably his lack of immunisations and bad dental condition, which she noted appeared to some extent to result from P.C.’s difficult behaviour. She explained that her professional opinion was that P.C. had engaged only superficially in the parenting assessment and had failed to recognise or accept his shortcomings and their impact on his parenting. She continued:
“We acknowledge that [the applicant] is in a very difficult position and we have seen that she has made efforts to work with the local authority but is often stuck in the middle of the conflict [P.C.] has with the department. She has been successful in persuading [P.C.] to comply with some issues, but on occasions she has been unable to share information with him until she has chosen the right time as she predicted ‘he will blow’. However [the applicant] is a very vulnerable woman who is not strong enough to separate or manage on her own. She is aware of the conflict [P.C.] creates with others and tries to be the ‘peacemaker’ ...”
45. As to the parents’ abstinence from drinking, she noted that it was not possible to predict whether this would continue, partly because of their failure to participate in any meaningful assessments, and she referred in this regard to P.C.’s refusal to provide relevant information. Similarly, as regards the likelihood of further incidents of domestic violence occurring, she noted that past behaviour was the best predictor, and that P.C. had a history of violence in previous relationships. He had done minimal work to address concerns and nothing which could give the local authority confidence that K.’s needs would be met appropriately. She continued:
“... [T]he level of cooperation and lack of awareness in my professional opinion is sadly lacking and has not given the local authority any information which enables them to make a decision that it is appropriate for [K.] to return to his parents. The court could consider that a further opportunity is given to [the applicant and P.C.] to undertake that assessment. However it has been made very clear to them during the court process that this information is essential in informing the court care plan and it is unlikely that [P.C.’s] attitude is likely to change in the short term and we cannot delay planning for [K.] any further. [The applicant and P.C.] have been aware of the seriousness of this case from the outset and despite the possibility of their son not being returned to their care they remain resolute in their attitude and lack of acknowledgment of the issues. [P.C.] in particular has deflected the issues away from his parenting of [K.] and the issues within the family focussing on acrimonious relationships with professionals and losing sight of [K.’s] needs.”
46. In her professional opinion, K. had an idealised view of returning home, seeing the opportunity for treats and presents with the ability to manipulate his parents into giving him all he wanted with few boundaries and controls. He maintained his strong desire to have supervised contact to ensure that the arguments between his parents did not recommence.
47. In conclusion, she repeated her view that K. would suffer significant harm if he returned home as their drinking and violence were likely to reoccur. Neither parent had engaged in any meaningful assessments which would indicate a positive outcome were K. to return home. The parents were committed to one another and P.C. had shown no ability to work in partnership with the local authority. She considered that K. was of an age where there was a very limited time window for achieving legal permanence and long-term fostering with ongoing parental contact would not be in his best interests, given his parents’ level of negative influence in his life. She was of the view that K. needed the opportunity to form attachments with long-term carers without the placement being undermined by his parents. She therefore concluded:
“The local authority respectfully recommends to the court that [K.’s] long term interests can be best met through adoption preferably with some form of contact with his parents. [K.] is only 7 and deserves the opportunity to live in a family where he will be legally secure, developing positive attachments without feeling disloyal to his parents. He needs to be with a family who can exercise parental responsibility and make decisions in [K.’s] life without the negative influence of the birth parents.”
48. She asked the court to make a care order and a placement order in respect of K.
49. On 17 March 2009 the applicant filed a statement in response. The statement noted:
“I can confirm that not only have there been no reported incidents between myself and my partner [P.C.], but also there have been no actual domestic incidents ... I confirm that we do not consume alcohol and although we have indicated that we would be willing to undergo further testing when we have met on contact appointments the same has never been pursued ...”
50. She refuted several aspects of the social worker’s statement, noting:
“... It often feels like whatever we are being asked to do we are then asked to do more. I certainly do not agree that I have only worked with professionals to a limited extent.”
51. She concluded that while she and P.C. had hoped that K. could be returned to their joint care, they both recognised that the social services’ opinion of P.C. was so damaged that their only chance of parenting might be to do it separately. The applicant indicated that for this reason, she and P.C. were thinking of separating so that she could parent K. on her own. She requested the court not to make a placement order and to return K. to her care.
52. A statement from P.C. confirmed the absence of any domestic incidents and the fact that neither he nor the applicant had consumed any alcohol. No mention was made of the possibility of separation.
53. The guardian’s Final Analysis and Recommendations report was dated 30 March 2009. It was based on full consideration of the welfare checklist (see paragraph 97 below). In the section of her report dealing with recent developments, she indicated that the status of the relationship between the applicant and P.C. was not clear as they had recently informed the authorities that they had separated. The report also referred to information regarding a violent domestic incident at the home on 14 March 2009 when the police were called. The applicant had told the police that P.C. had hit her, although he denied it. The guardian explained that the information had been received after the report had been prepared in draft, but noted that the incident added “cogent testimony” to the detail of her report.
54. The guardian compared K. as she then saw him with his condition in the summer of 2008 and reported that he had grown in confidence and settled in all aspects of his placement. He presented as happy and settled, embracing family life in his carers’ home and making very good progress at school.
55. As to K.’s wishes and feelings, in November 2008 he had appeared confused about returning home. He had felt safe with his carers and gave mixed messages about whether he wished to stay with them or return home. He was firm in his view that he did not want contact with his parents without social workers being present. In March 2009 he indicated that he wanted to go home to live with his parents. When questioned about how that would work since he wished to have supervised contact with them, he replied that social services would also be there. She observed:
“These statements clearly demonstrate what [D.I.] has stated in ‘that [K.] both loves and fears his parents – his father more so’. He wants to go home but wants the safety net of social workers being in his home to protect him.”
56. The report continued:
“In my opinion [the parents] both needed to access treatment programmes for their drinking and violence, they would also have to begin to discover, reflect and recover from the underlying issues that led to the drinking and violence in the 1st place ...”
57. The report went on to consider in more detail P.C.’s behaviour and history.
58. The guardian also commented on the parenting assessments conducted, noting in respect of the applicant that she appeared to lack understanding of the impact of arguments on K. and of alcohol on her parenting ability, and that she failed to see that P.C.’s behaviour towards her was abusive and controlling. The guardian considered the crux of the issue for reunification to be that the parents had not engaged in or completed treatment programmes for alcohol or domestic abuse, noting that P.C. refused to accept that he was a perpetrator. She concluded:
“There can be no delay for K. His parents have sadly not even begun to do the work that is needed to support and assist them with their fundamental problems/difficulties and the underlying issues that predispose their drinking and violence. Without the input they need I would expect their behaviour to revert to type, especially in the case of [P.C.], which would fundamentally seriously impact on K. causing him further significant harm if he was returned to their care.”
59. She recommended that the court endorse the local authority plan for a care order with a plan for adoption.
60. A four-day hearing took place before the Family Proceedings Court between 6 and 9 April 2009. It had before it applications by the local authority for a care order and for a placement order.
61. At the start of the hearing, the court was presented with a new case on behalf of the applicant. In a position statement dated 5 April 2009, she said that on 14 March 2009 she had discovered that P.C. had been to a pub and had drunk two pints of beer. She had remonstrated with him for drinking when they were so close to having K. returned to them and he had pushed her into a chair and slapped her. She had called the police. She said that the relationship with P.C. was over, and that from the guardian’s report she had learned new information about domestic violence in P.C.’s past relationships. She was planning, with the help of a recent inheritance, to rent a property near her sister, with the support of her sister and P.C.’s adult son, P.G. The applicant asked to be given a chance to prove that she could safely parent K. on her own, away from parental conflict, and requested a section 38(6) assessment of her as a sole carer (see paragraph 96 below). She proposed that K. be assessed with her by an independent social worker who would address K.’s relationship with the applicant, the applicant’s parenting abilities and the management of any risks to K. In the interim, she sought a further ICO.
62. In a brief written statement dated 8 April 2009, P.G. said that he intended to sign a joint lease shortly, move in with the applicant and support her as much as he could.
63. The court heard oral evidence. Notes were taken by the clerk and a transcribed note of evidence has been provided to the Court by the respondent Government. However, it is in note form, with no clear distinction drawn between questions asked by counsel and responses made by witnesses. The notes are therefore of limited assistance in identifying the exact nature of the oral evidence given and any conclusions drawn from them should be treated with caution.
64. It appears from the notes that, in his oral evidence, D.I. expressed concern regarding the lack of evidence of a change in parenting skills by the applicant. Some discussion of adoption took place with him. He appeared to agree that if K. could be rehabilitated to the applicant’s care, in circumstances in which his needs were properly met by her, then that would be a better solution than adoption. The notes suggest that he referred to K.’s age and the greater difficulties encountered in seeking to place an older child for adoption. However, he seems to have expressed pessimism about the prospects for change in the applicant’s behaviour, and indicated that his preference was for K. to stay with his foster placement on a long-term basis, although he appeared to recognise that this was not an option. He commented that the applicant had been entirely cooperative with him. His views on the value of a further assessment of the applicant are not clear.
65. The notes suggest that the social worker did not believe that the applicant’s separation from P.C. was genuine. She expressed the view that the applicant was so entrenched in domestic violence and her self-esteem was so eroded that she would be unable to separate properly from P.C. She added that in any event the local authority had already carried out a parenting assessment; a further assessment would unsettle K., disrupt his placement and delay the matching process.
66. The notes confirm that the applicant gave an account of the incident of 14 March 2009. She explained that she had subsequently asked her social worker for help in separating from P.C. She accepted that her statement of 17 March 2009, in which she had said that there had been no further violent incidents, was untruthful. She said she was too scared to tell anyone. She indicated that she had not drunk alcohol since June 2008, nor had she been violent towards P.C. She reiterated that she had decided to move to a new house close to her sister and that P.G. was going to move in with her to assist. She had a fund of GBP 37,000 which she would use for the benefit of K. She would apply for an injunction to prevent P.C. from visiting her, and his contact with K. would have to be supervised. She said that she would undergo any programmes or assessments by a social worker, and that she was willing to see the guardian and D.I. again. She concluded that she had no intention of resuming a relationship with P.C. if K. were returned to her. She had discovered from the guardian’s report how he had treated his older children. She asked for the opportunity to be assessed as a sole parent for K. and accepted that K. would have to remain in care while the assessment took place.
67. Finally, the guardian gave evidence. The notes indicate that she opposed any further assessment of the applicant. It appears that she did not think that the separation was genuine. In any case, whether the separation was genuine or not was immaterial because in order for the applicant to keep herself and K. safe, her personality had to change. It seems that the guardian gave evidence to the effect that a quarter of the children placed for adoption the previous year were K.’s age. She appears to have expressed concern that any work with the applicant to address her issues would require long-term psychological input. She recommended adoption and indirect contact with the parents until they came to terms with the adoption.
68. At the conclusion of the evidence and submissions on 9 April 2009 the court reserved its decision. On 15 April 2009 it handed down judgment. Commenting on the parenting assessments, the court indicated that in its view the contact sessions had generally gone well. It observed:
“... We note that [K.] is not distressed when he returns from contact with his parents and understand that during contact he does ask his parents when he can come home and whether they have stopped drinking.”
69. The court found that the threshold criteria for the making of a final care order (see paragraph 93 below) had been established, in light of the parents exposing K. to domestic violence and alcohol misuse causing him emotional and physical harm. It considered its range of powers and the need for a care order, referring to section 1 of the Children’s Act 1989 (see paragraph 97 below) and emphasising that the child’s welfare was the paramount consideration. It continued:
“In determining the child’s welfare we have considered the welfare checklist. We have referred to the welfare consideration in the Children’s Guardian’s report and consider this to be comprehensive. We accept the welfare aspects but consequent upon the late position statement by mother, dated 5 April 2009, reach a different conclusion. The Guardian’s report does not address [the parents’] separation. ... At this juncture we believe that this separation is genuine and this therefore leads us into considering whether [the applicant] is capable of meeting [K.’s] needs, which includes protecting him from [P.C.]. This information is not before the court and puts us in great difficulty in deciding whether a care order should be made. The only way to achieve this information would be by making a s.38(6) direction [for an assessment], however this needs to be balanced against a further delay for [K.].
In considering our range of powers we could make an interim care order with a s.38(6) direction for [the applicant] to undergo a parenting assessment as a sole carer for [K.]. We are told that the assessment would take at least three months and realistically five months, before the case can be properly considered again by the court. This delay must be weighed against [K.’s] best interests. Any delay is considered in law to be prejudicial unless it is planned and purposeful.”
70. After examining domestic case-law on the circumstances in which a parenting assessment was appropriate, the court continued:
“... We therefore believe in fairness to [the applicant] she should be given one last opportunity to have her parenting ability assessed in respect of [K.].
...We accept that [K.] needs a secure and stable environment in which to develop and have his needs met but this must be weighed up against him losing the opportunity to be brought up within his birth family, particularly his mother. He is 8 years old next week and has memories of his parents and has continuously asked when he can return to live with them. Although we are sure that he is scared of the domestic violence, through the parents’ separation and an injunction against [P.C.] this risk can be managed.
We have considered the human rights issues. We believe that making an interim care order with a s 38(6) direction is necessary and a proportionate response given that neither parent is at present capable of caring for [K.] and that it will provide the court with further crucial information before reaching a final decision ...”
71. The court recorded that this option was not recommended by the guardian, and explained why it disagreed:
“The reasons why we have gone against the Guardian’s recommendation are that we believe that a delay of 5 months is acceptable in this case provided that it is purposeful and could prove to be in [K.’s] best interests, should the assessment be positive as this will allow him to be raised with his birth mother, with whom [D.I.] has clearly stated [K.] has a very strong bond. This assessment will provide us with valuable information when reaching our final decision and we intend to return for the final hearing.”
72. The court accordingly made a direction for a section 38(6) assessment and made a further ICO in respect of K.
73. The local authority and the child’s guardian appealed the decision of the Family Proceedings Court, arguing that there was no sufficient basis for the proposal that the applicant would be able to parent K. well enough on her own; that the proposed assessment would duplicate earlier assessments; and that the prospects of any assessment being favourable were too poor to justify the harm to the child of disruption and delay. They argued that the court ought to have made a final care order on the evidence before it. In their notices of appeal, they specifically sought a final care order and a placement order.
74. On 2 June 2009 the social worker lodged a further statement with the court. She confirmed that K. had been informed of the separation of his parents and appeared to have accepted the situation, noting that he seemed more relaxed during contact sessions with his mother and made no reference to having contact with his father. The social worker also confirmed that the applicant had moved to a new address, on the basis of a joint tenancy agreement with P.G., but indicated that P.G. had not actually yet moved into the property. The applicant remained in direct and indirect contact with P.C., and the social worker noted that she appeared to be confused about his behaviour towards her.
75. The statement indicated that the applicant had been informed of the support she could access in order to develop her parenting skills, but observed that to date she had not accessed such support. The applicant had also spoken with a domestic violence worker, although a planned meeting had not taken place as there was some confusion over the venue and had not been rescheduled. The social worker reported that contact sessions between the applicant and K. had been broadly positive. However, she considered that the applicant had demonstrated that she was unable to make a clean break from P.C., which remained a concern to social services.
76. The case came before the County Court on 5 June 2009. By that time, the applicant and P.G. had signed a lease on a property and the applicant had moved there. The judge considered extensive written and oral argument from the local authority and the guardian in support of the appeal. He took into account a substantial skeleton argument submitted by the applicant, who was represented by counsel at the hearing. He also had before him the various reports prepared for the hearing before the Family Proceedings Court and the note of oral evidence prepared by the clerk (see paragraph 63 above). He reserved his decision to 16 June 2009.
77. In the interim, on 6 June 2009, the court issued an order allowing the appeal. In its second paragraph, the order stated:
“The Judge is satisfied that the conditions for making a care order exist and accordingly make a placement order, dispensing with the consent of the parents under SS.22(3)(b) and 52 of the Adoption and Children Act 2002.”
78. On 16 June 2009 the judge handed down his judgment on the appeal. He summarised the relevant reports and the oral evidence as recorded in the notes by the clerk, commenting:
“10. ... [T]he justices [in the Family Proceedings Court] heard first oral evidence from [D.I.], and then from [the social worker] in support of the local authority’s application. Their evidence is recorded in notes kept by the justices’ clerk. I should observe that these notes are quite difficult to follow and there is sometimes little distinction between questions put and answers given. It is however clear that, when questioned about the mother’s proposal to be assessed as a sole care for [K.], both witnesses were unsupportive. [D.I.] said it was necessary to consider [K.’s] needs now, and that a promise was not the same as change. He said that the mother’s contact had not demonstrated a change in parenting skills. He was struck by the guardian’s report, acknowledging that although the parents loved their child and wanted to change, they could not change. He said that [K.] was insecurely attached to both parents. He said that he was not recommending returning [K.] to his parents as it would cause him emotional and developmental damage. He said that his preference would be for [K.] to stay with his foster placement on a long-term basis, but it appears that he recognised that this was not an option. [The social worker] expressed the view that the mother’s self-esteem was so eroded that she would not be able to separate properly from the father. She said that it was unclear whether the proposed assessment would be residential or in the community, but that in any event the local authority had already carried out a parenting assessment. She said that a further assessment would unsettle [K.], disrupt his placement and delay the matching process.”
79. The judge summarised the evidence of the applicant and P.G. before turning to the evidence of the guardian, in respect of which he noted:
“13. ... Again it was clear from her evidence that she opposed the further assessment of the mother. She said that she did not think that the mother could separate from the father simply by moving house, as he had a lot of power and control over her. But whether or not the separation was genuine was immaterial because in order to keep herself and [K.] safe her personality needed to change. This could only happen with long term psychological support. She agreed with [D.I.] that everything would not be fine if the mother separated because she would return to the father.”
80. The judge acknowledged that the decision of the Family Proceedings Court was reached after hearing oral evidence from the principal witnesses over a period of several days. He further acknowledged that the course of action selected by the Family Proceedings Court was one that was open to it. He continued:
“17. The temptation for a court to give directions for further evidence, often in the form of a s.38(6) assessment, is often strong. The decision to do so must always be taken in the best interests of the child. The proposition that the ‘... court needs all the help it can get’ has an immediate attraction, but the help must always be directed at achieving the right outcome for the child. Often there is the disadvantage of delay, and it is necessary accordingly to consider the possible outcomes of an assessment. In the present case the justices justified the delay as it retained the prospect of what they regarded as the best outcome for [K.] – rehabilitation to his family. But that outcome depended on the assessment being able to demonstrate that the mother had the capacity to parent [K.] in the long term. Given that the justices’ findings contain the phrase ‘neither parent is at present capable of caring for [K.]’, it is necessary to give consideration as to how the proposed assessment would proceed. If it was envisaged that [K.] would remain with his foster parents and spend increasing periods of visiting contact with his mother the report, ‘if successful’, would merely state that the mother had given all the signs of being able to care for her son, at least in the contact situation. If it was envisaged that there would be a phased return to the mother, with increasing periods of staying contact, then the report would be able to speak with greater confidence of the mother’s capacity to parent her son. In either case however [K.] would be exposed to a degree of disruption of his foster placement, and to the risk of emotional harm should the assessment break down. In both cases the duration of the assessment would be too short to enable the report writer to give any sufficient guarantee that the mother would not, as predicted by the local authority and the guardian, resume her relationship with the father in due course.”
81. He continued:
“18. I have come to the conclusion that the evidence about the mother was clear. [D.I.] regarded the mother’s separation from the father as a promise of change, not change itself, and it was his view that there was no change in her parenting skills. The assessment of the mother would never have been able to provide evidence that would be sufficient to justify the refusal of a care order and the decision to return [K.] to his mother, given her shortcomings and the real risk that she would be unable to maintain her separation from the father. In reality the only effect of postponing the decision to make a care order was to delay, and therefore to jeopardise, the process of finding an alternative long term placement for [K.] by way of adoption ... In these circumstances the decision of the justices must be categorised as wrong, and must be set aside ...”
82. He therefore allowed the appeal, indicated that he was satisfied that the conditions for making a care order existed and accordingly made a placement order, dispensing with the consent of the parents, under sections 22(3)(b) and 52 of the Adoption and Children Act 2002 (“the 2002 Act” – see paragraphs 99 and 101 below). He added:
“I have come to the above conclusions independently of information which I was given at the outset of the hearing before me about P.G.’s failure so far to join the mother at her new accommodation, her further contact with the father at public houses, and her taking of small quantities of alcohol. Nonetheless this information tends to confirm the pessimistic view expressed about the mother’s inability to separate from the father.
... I do not propose that the judgment be formally given at a court hearing, although if there is anything that requires my further attention in court, an appropriate hearing can be arranged.”
83. On 2 July 2009 K. informed the applicant that he was not happy with the decision of the judge and that he wanted to come home.
84. The applicant sought leave to appeal the judgment of the County Court, arguing that as there had previously been no care order in place, the judge should not have made a placement order without having due regard to the responsibilities placed on him by section 1 of the 2002 Act (see paragraphs 103-104 below). In particular, she contended, the judge should have considered the child’s ascertainable wishes and feelings regarding the decision and the relationships which he had with relatives and any other relevant person.
85. Permission to appeal was refused on the papers on 18 September 2009 on the ground that the County Court judge had been sitting in an appellate capacity, that he had reached a conclusion that was clearly open to him and that he had explained his conclusion most clearly. The applicant renewed her request for leave. An oral hearing subsequently took place on 28 October 2009.
86. On 24 November 2009 the Court of Appeal handed down its judgment on the request for leave to appeal. In relation to the applicant’s complaint that the County Court had failed to take into account relevant considerations, and in particular had failed to have regard to the welfare checklist, the judge delivering the opinion of the court noted:
“Her proper remedy in my judgment was to take advantage of the judicial offer in the final sentence of the [County Court] judgment ... She could have asked the judge to clarify the order that he was making and to indicate in his judgment how he arrived at such a conclusion. She could equally have asked him for permission to appeal. None of those things were done in the county court and a notice of appeal was filed in this court ...”
87. He continued:
“... it seems to me on fuller investigation that [the applicant’s case] lacks merit. First of all, the judge was reviewing a decision from the magistrates who had, I suspect out of understandable sympathy for the mother, held off the local authority’s application with an order under Section 38(6). But it is hard to see how that application was justified on the facts and circumstances, and [the County Court’s] decision to set aside an order which stood on flimsy legal foundation is hardly open to challenge. Nor do I think in the end that there is any substance [to the complaint] that he dealt with the outcome in too peremptory a fashion. After all, the mother’s legal team knew from the form of the notices of appeal to the circuit judge precisely what the local authority sought to gain from the hearing. It was quite open to [counsel for the applicant] to submit to the judge that he should not make a placement order even if he were persuaded to make a care order, since there was insufficient material to enable him to carry out the Section 1 review. It seems that she did not make that submission prior to judgment and, as I have already observed, she ignored the opportunity to make it immediately on receipt of the written judgment and to ask the judge to reconsider the order of 6 [June].”
88. He concluded that there was no error of law in the County Court’s decision and dismissed the application for permission to appeal.
89. A final supervised contact between K. and the applicant took place in December 2009.
90. K. was placed with a prospective adoptive parent on 18 January 2010.
91. On 5 May 2010 the applicant made an application to the court for contact with K. pursuant to section 26(3) of the 2002 Act (see paragraph 102 below). This was refused on 16 September 2010. No court decision has been submitted to the Court but it appears that there were ongoing concerns about the level of the parents’ separation. In a statement to the court the social worker said that K. was forming a positive attachment to his prospective adopter and that he had unhappy memories of his life with his parents. In her professional opinion direct contact would undoubtedly cause K. stress and anxiety which would impact on the stability of his placement. The guardian filed a report along similar lines. It is unclear whether the applicant sought leave to appeal.
92. Section 44(1) of the Children Act 1989 (“the 1989 Act”) gives a court the power to make an EPO in respect of a child living with his parents if it is satisfied that there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by the person applying for the order.
93. Section 31 of the 1989 Act empowers a court to make an order placing a child in the care of the local authority or putting him under the local authority’s supervision. Pursuant to section 31(2), such an order can only be made if the court is satisfied:
“(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to–
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.”
94. Section 37(1) allows a court considering whether to make a care order to direct the local authority to undertake an investigation of the child’s circumstances.
95. Pursuant to section 38(1), a court can make an ICO where an application for a care order is adjourned or where directions under section 37(1) have been given. Before making such an order, the court must be satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2). ICOs are limited in time: the first order may last no longer than eight weeks and subsequent orders no longer than four weeks.
96. Section 38(6) provides that where the court makes an interim care order, it may give such directions as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child.
97. When a court makes an order under the 1989 Act, section 1(1) provides that the child’s welfare shall be the court’s paramount consideration. Section 1(2) establishes a general principle that any delay in determining any question with respect to the upbringing of a child is likely to prejudice the welfare of the child. Section 1(3) provides that the court should have regard in particular to;
“(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.”
98. Section 21(1) of the Adoption and Children Act 2002 (“the 2002 Act”) provides for the making of a placement order by the court authorising a local authority to place a child for adoption with prospective adopters. Pursuant to section 21(2), the court may not make a placement order in respect of a child unless:
“(a) the child is subject to a care order,
(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or
(c) the child has no parent or guardian.”
99. Section 21(3) permits the court to dispense with the parents’ consent to the making of a placement order. Section 52 provides:
“(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that–
(a) the parent or guardian cannot be found or is incapable of giving consent, or
(b) the welfare of the child requires the consent to be dispensed with.”
100. Section 21(4) provides that a placement order continues in force until it is revoked or an adoption order is made in respect of the child.
101. Section 22(3)(b) of the 2002 Act allows a local authority to apply for a placement order in respect of a child who is subject to a care order.
102. Section 26(3) permits the parent of child to make an application for contact with a child in respect of whom a placement order has been made. Section 27(4) provides that:
“Before making a placement order the court must–
(a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and
(b) invite the parties to the proceedings to comment on those arrangements.”
103. Section 1(2) of the 2002 Act provides that the paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life. Section 1(3) requires courts and adoption agencies to bear in mind at all times that, in general, any delay in coming to a decision relating to the adoption of a child is likely to prejudice the child’s welfare. Section 1(4) sets out, in the following terms, a list of matters to which courts and adoption agencies must have regard when exercising their powers:
“(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),
(b) the child’s particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 ...) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including–
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,
(iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”
104. Section 1(6) provides:
“The court or adoption agency must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”
105. Section 46 of the 2002 Act provides for the making of an adoption order, transferring parental responsibility for the child to the adopters. Under section 47, an adoption order can only be made in the absence of the parents’ consent where the child has been placed for adoption pursuant to a placement order.
106. It is the established practice of family courts for the judge to invite representations as to any factual errors in the judgment. The practice was described by the Court of Appeal in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, as follows:
“In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists. It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order. In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective ... ; and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn. It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge’s attention when there was a ready opportunity so to do. Unnecessary costs and delay may result.”
107. This passage was cited with approval by the Court of Appeal in Re M (fact-finding hearing burden of proof) [2008] EWCA Civ 1261. The judge in that case added:
“I wish to make it as clear as possible that after a judge has given judgment, counsel have a positive duty to raise with the judge not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment. Judges should welcome this process, and any who resent it are likely to find themselves the subject of criticism in this court. The object, of course, is to achieve clarity and – where appropriate – to obviate the need to come to this court for a remedy.
This process applies in cases involving children in both public and private law as much as it applies in any other case. I very much hope that in the future this court will not be faced with matters which are plainly within the province of the judge, and are properly capable of being resolved at first instance, and immediately after the relevant hearing.”
108. The statutory checklists are set out in section 1(3) of the 1989 Act, in respect of care order, and section 1(4) of the 2002 Act, in respect of placement and adoption orders (see paragraphs 97 and 103 above).
109. In EH v London Borough of Greenwich & Others [2010] EWCA Civ 344, decided on 9 April 2010, the Court of Appeal was asked to consider whether the judge had erred in failing to refer explicitly to the statutory checklists in the 1989 and 2002 Acts and to Article 8 of the Convention when making a care and placement order. Mrs Justice Baron, delivering the lead judgment, noted:
“61. The judge was making a very draconian order. As such, he was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate. Accordingly, because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of Section 1(3) undermines his conclusions and his order.”
110. As to Article 8, she continued:
“64. In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in the judgment because, ultimately, there can be no greater interference with family life. Accordingly, any judge must show how his decision is both necessary and proportionate. In this case what the judge said was ‘removing the children from their Mother without good reason ... would be a tragedy for them, quite apart from the mother’. With all due respect to him, this does not demonstrate that he had Article 8 well in mind. Whilst he decided that the experts apparently proffered no other solution it is apparent from the manner in which this case unfolded that they did not have the opportunity to make recommendations upon the additional evidence which, I remind myself, amounted to one sighting of the Father and Mother together in the street. Consequently, it was even more incumbent upon him to consider precisely why the family bond should be broken.”
111. Baron J considered that the judge should have turned his mind to each of the provisions set out in section 1(4) of the 2002 Act when considering whether to make a placement order, and not truncated his considerations in one paragraph. She continued:
“69. ... By so doing he specifically failed to address these children’s particular needs and the likely effect on them (throughout their lives) of their ceasing to be a member of their original family. They have an established attachment to a loving mother who, with targeted assistance, might be able to provide some form of future mothering.”
112. Finally, on the established practice of family courts for the judge to invite representations as to any factual errors in the judgment, and the failure of the mother in that case to do so, the judge considered that the omissions in the judgment could not have been put right following that route.
113. Lord Justice Wall noted:
“95. ... There is no more important or draconian decision than to part parent and child permanently by means of an adoption order. It follows, in my judgment, that if this is the course which the court feels constrained to follow, the process whereby it is achieved must be both transparent and must comply with both ECHR and the relevant statutory provisions.
96. Once again, these are not hoops imposed by Parliament and the appellate judiciary designed to make the life of the hard-pressed circuit judge even more difficult than it is already. They are not boxes to be ticked so that this court can be satisfied that the judge has gone through the motions. They are important statutory provisions, bolstered by decisions of this court which require a judge fully and carefully to consider whether the welfare of the child concerned throughout his life ... requires adoption.”
114. He considered that, however experienced the judge, it was wholly inadequate to deal with these crucially important issues in a sentence or two, as the judge in that case had done, observing:
“98. ... The judge does not mention either Act (the Children Act 1989 and the Adoption and Children Act 2002) nor does he make any reference to the rights enjoyed by both parents and children under ECHR, nor does he mention proportionality. In my judgment, these are serious defects which vitiate the judgment and mean that this appeal must be allowed.
99. The answers to the criticisms I have made are, as I understood them; (1) all these matters were put to the judge so he must have had them in mind; and (2) all the professional and expert evidence was to the effect that if the mother was a liar, and had lied to the judge about her relationship with the father, adoption was inevitable – therefore the judge was entitled to take a short cut.
100. In my judgment, neither defence meets the criticism ...”
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-4928
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: McPARLAND v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Irish citizen, born in 1946 and living in Newry, Northern Ireland. He is represented before the Court by Mr Gerard Trainor of the Elliot-Trainor Partnership, a firm of solicitors based in Newry.
A.

On 3 April 1998 the Transport Licensing and Enforcement Branch of the Department of the Environment of Northern Ireland (“the Department”) notified the applicant in writing that his application for a road service licence had been refused on the ground that he was not considered to be of “good repute” within the meaning of sections 28A(1)(a) and 46A(3A)(a) of the Transport Act (Northern Ireland) 1967 as amended. The Department’s refusal was based on the fact that the applicant was convicted on 1 June 1990 of possessing explosives, firearms and ammunition and sentenced to ten years’ imprisonment. The applicant was released on 7 March 1995.
Following a hearing held on 19 May 1998 before the Vehicle Licensing Review Body (“the Review Body”), the Department informed the applicant in June 1998 that it had accepted the Review Body’s recommendation and had decided to uphold its decision of 3 April 1998.
The applicant’s solicitor requested the Department to provide reasons for the Review Body’s decision. By letter dated 7 August 1998, the Department informed the applicant that the Review Body had met on 19 May 1998 to hear his appeal and had taken into account all the information before it, including the character references which the applicant had supplied. It was the Review Body’s unanimous recommendation that the Department’s initial decision be upheld. The Department drew the applicant’s attention to the fact that the Review Body was an independent institution which did not have any power to take decisions on appeals from its licensing authority. The Review Body’s functions were limited to making recommendations for consideration by the Department. The Department took a final decision on the applicant’s application in which it affirmed its licensing authority’s earlier decision to refuse him an operator’s licence on the grounds specified in its letter of 3 April 1998.
The applicant subsequently sought leave to apply for judicial review of the Department’s decision on the grounds inter alia that the decision refusing him a licence was discriminatory, unreasonable, unfair and unlawful; that the licensing authority had given undue emphasis to his criminal conviction; and that the same authority had failed to take into account relevant matters such as the character references he had submitted, his qualifications and the fact that official and private agencies had earmarked funding for the business venture which he was attempting to mount. The applicant also prayed in aid the provisions on the rehabilitation of offenders following their release from prison.
On 25 September 1998 the applicant’s lawyer informed the High Court of Northern Ireland that the applicant no longer wished to proceed with the leave application. Mr Justice Kerr accordingly dismissed the application. According to the applicant, Mr Justice Kerr stated at the leave hearing that the licensing authorities confronted as they were with the applicant’s previous conviction and the terms of the relevant domestic legislation could not have reached a different conclusion.
B. Relevant domestic law
Section 28 of the Transport Act (Northern Ireland) 1967 was amended by regulation 4 of the Road Transport (Qualifications of Operators) Regulations (Northern Ireland) 1977 so as to provide that the Department of the Environment shall refuse to grant to an applicant an operator’s licence unless it is satisfied that the applicant is, inter alia, of good repute (new section 28A).
The Transport Act (Northern Ireland) 1967 was further amended by the Road Transport (Qualifications of Operators) (Amendment) Regulations (Northern Ireland) 1991. According to section 5(2) of the Regulations, the Department shall determine that a person is not of good repute if he has been convicted of serious offences, defined as any offence which carries a sentence of imprisonment for a term exceeding three months, a fine exceeding level 4 on the standard scale, or a community service order for more than 60 hours. Spent convictions are to be disregarded.
A person who has been refused a licence may apply in writing within fourteen days from the date of issue of the notice of refusal to the Department of the Environment stating his grounds of complaint and requiring the decision to be reviewed by the Department. The Department must inform the applicant in writing whether the decision has been confirmed or reversed. The Department must give reasons for the confirmation of a decision (regulation 5 of the Road Service Licensing Regulations (Northern Ireland) 1989).


ITEMID: 001-70957
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SUSS v. GERMANY (No. 1)
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;No violation of Art. 6-1
JUDGES: Mark Villiger
TEXT: 9. The applicant was born in 1940 and lives in Berlin.
10. The applicant married G.S. in August 1984. Their daughter F. was born on 29 November 1984. In August 1989 G.S. moved out of the matrimonial home together with F. who has been living with her mother since then.
11. On 6 December 1992 the applicant had his last contact with F. The mother subsequently denied the applicant any further contact.
12. Three sets of court proceedings concerning the custody of F., the applicant’s right of access and the spouses’ divorce opened before the Charlottenburg District Court (later Tempelhof-Kreuzberg District Court), namely
13. On 7 September 1989, in the context of proceedings before the Charlottenburg District Court concerning custody of F. during the period of separation (Getrenntleben) of the spouses, the question of the applicant’s right of access (Umgangsrecht) to F. was settled. According to the spouses’ agreement, the applicant was entitled to see his daughter once per week on a weekday and from Sunday until Monday morning every second week-end.
14. Subsequently F.’s mother denied the applicant any contact with F. and the applicant asked the District Court for assistance in this matter.
15. On 7 November 1989 Judge S. of the Charlottenburg District Court, having heard F. and her mother, informed the applicant that contacts between him and his daughter should take place regularly every second week-end and at Christmas. He noted that F. was on very good terms with her father. However, further contacts would worsen the very strained relations between the parents and were presently not in the child’s best interest. On 17 November 1989 G.S. declared that she no longer wished to comply with the settlement of 7 September 1989, as she had been terrorised by the applicant.
16. On 2 January 1990 the District Court noted that G.S. had not complied with the terms of the friendly settlement of 7 September 1989. It observed that G.S. had failed to furnish evidence for her allegations that the applicant had threatened or sexually harassed G.S. or F. in several letters.
17. On 25 April 1990 the District Court decided that during the period of separation of the spouses G.S. shall have custody of F.
18. On 4 October 1990 the Berlin Court of Appeal, having regard to the parents’ statements made in court and a report of the Tempelhof District Youth Office, dismissed the applicant’s appeal against this decision.
19. On 16 November 1989 the applicant filed a petition for divorce with the Charlottenburg District Court and requested to be granted custody of F. In the subsequent proceedings, both parties, that is, G.S. and the applicant, were assisted by counsel.
20. On 13 March 1990 the Charlottenburg District Court, granting the applicant’s motion, issued an interim injunction. Judge S., sitting alone, ordered that the applicant had a right of access to F. once a week on a weekday and that F. should stay overnight from Sunday until Monday morning every second week. This order replaced the regulation of the applicant’s right of access by the friendly settlement agreement concluded on 7 September 1989. The court considered that contacts between the applicant and F., as provided for in the said agreement, were in the child’s best interest. For months, G.S. had, however, advanced factual or personal pretexts to prevent contacts. The court noted that it had heard the parties on the question of access on 8 March 1990.
21. G.S. objected to the interim injunction.
22. On 2 April 1990, at a hearing before the District Court, the parties arrived at a new settlement on the applicant’s access to F. which replaced the court order of 13 March 1990. According to this agreement, the applicant was entitled to spend every second week-end and certain fixed holidays with F. This arrangement was subsequently only partly observed by G.S., and the applicant asked for the enforcement of his right of access under the terms of the settlement.
23. On 21 September 1990 the District Court dismissed one of the applicant’s motions to order G.S. to pay a coercive penalty, as G.S. had not deliberately failed to comply with the terms of the settlement dated 2 April 1990 on the relevant occasion. The applicant’s appeal was to no avail. On 17 December 1990 G.S. asked for the suspension of the applicant’s access to F. Apparently no decision has been rendered upon this motion.
24. On 6 May 1991 the District Court, following a hearing in the presence of G.S. and the applicant, adjourned the proceedings concerning the parties’ divorce and related family matters, as the parties failed to reach an agreement concerning the custody of and the access to F.
25. In August and September 1991 the applicant asked for the preparation of an psychological expert opinion concerning custody of and access to F., to which G.S. objected.
26. The applicant’s first motion dated 20 September 1991 to challenge the single District Court Judge S. for bias, inter alia because the judge refused to order a psychologiacal expert opinion about the question of access, was dismissed by the Berlin Court of Appeal on 25 October 1991. The applicant’s second motion dated 14 November 1991 to challenge Judge S. for similar reasons was rejected on 23 December 1991.
27. On 16 April 1992 the District Court dismissed the applicant’s request for an interim injunction granting him access to his child during the Easter holidays.
28. On 25 May 1992 the District Court, following a hearing in which the parties persistently cursed at each other and at the judge, ordered the preparation of a psychological expert opinion regarding the child. The expert notably was to address the question whether the applicant’s access to F. should be broadened in order to secure permanent contacts between them.
29. The court-appointed psychological expert L.L. rendered her report on 28 April 1993. According to the expert, it was in the child’s best interest to limit contacts with the applicant to four hours every fortnight or even to exclude the applicant’s access to F. for a year. She argued in particular that the applicant failed to realise his daughter’s increasing objections against close physical contacts with him. In her view, the applicant was out of touch with reality and showed signs of querulance and delusion; however, G.S. also tried to influence F. in her favour.
30. On 18 December 1992 G.S. announced that she retracted her consent to the settlement on access dated 2 April 1990 and that she would no longer allow contacts between F. and the applicant, because F. no longer wished to meet the applicant.
31. Meanwhile, in a letter dated 18 January 1993, Judge S., referring to all three sets of proceedings, informed the parties’ representatives that the files were out of control and that it was intended to deal with the parties’ numerous motions soon. Judge S. also announced that the enforcement of previous agreements and decisions would be secured.
32. On 21 June 1993 the Charlottenburg District Court, with Judge S. sitting alone, held a further hearing on divorce, custody and related family matters. It notably heard the applicant and G.S., assisted by their respective counsel, on the question of the applicant’s contacts with F. G.S. refused to accept the court’s proposal of a friendly settlement regulating, inter alia, the applicant’s access to his daughter.
33. On 26 July 1993 the applicant lodged a motion for an interim injunction granting him access to F. on one day every second week-end.
34. Subsequently, the case, which had until then been processed by single Judge S., was assigned to Judge H., when S. fell ill and retired. H. subsequently explained that it was not necessary to render a decision upon the applicant’s motion for an interim injunction granting access, as the case was altogether ready for decision.
35. On 3 and 20 September 1993 the applicant objected to the expert L.L. on grounds of bias. He argued that the expert had accused him of having sexually abused F.
36. On 29 October 1993 the District Court dismissed the applicant’s motion objecting to the expert for bias as inadmissible. On 21 January 1994 the Berlin Court of Appeal dismissed the applicant’s appeal, finding that it had been lodged out of time.
37. The hearing on 31 March 1994 was preceded by a questioning of the child in which F. had indicated that she did not want to meet her father. At the hearing, which was attended by the applicant, G.S. and their respective counsels, the applicant challenged Judge H. on grounds of bias. The hearing was adjourned because of this motion. The applicant withdrew his motion on 3 April 1994. His repeated further motions of 5 May 1994, because of which another hearing before the District Court had to be adjourned, and of 16, 18, 20 and 23 June 1994 were to no avail. In its respective decisions, the Berlin Court of Appeal found in particular that the delays in the proceedings had been caused by the applicant’s various motions challenging the District Court judge and the expert for bias. This had necessitated the adjournment of the proceedings before the District Court until the decision of the Court of Appeal.
38. After the District Court had fixed another date for a hearing on 6 October 1994, the applicant filed further motions for bias against Judge H. on 25 September 1994 and on 23 and 27 October 1994. He argued, inter alia, that H. wanted to cover up G.S.’s ill-treatment of her son, had refused to consult another expert and that her treatment of the case was comparable to offences committed by a former official of the GDR, from which H. originated. On 4 November 1994 the Berlin Court of Appeal, having regard to Judge H.’s official statement in which she had disqualified herself following the applicant’s persistent allegations, decided that she was disqualified.
39. In a hearing in camera before Judge R. of the Berlin Tempelhof-Kreuzberg District Court on 9 January 1995, F. indicated that she no longer wanted to visit her father. Confronted with her former positive statements about her father, she replied that she did not love him anymore and that she would not care if he died. She expressed the fear that her father might commit suicide and might kill her as well. She stated that she wanted to live together with her mother and that she felt happy with her mother, her mother’s new partner and her brothers. She emphasised that she would refuse to see her father even if the Court ordered her to do so. Half of her lifetime had been dominated by her parents’ quarrel, and she was sick of constantly having to appear in court because of this.
40. In letters dated 6, 8 and 9 January 1995 the applicant challenged Judge R. for bias, inter alia because she had refused to order another expert report, and requested to adjourn the hearing. On 10 January 1995 the District Court, with Judge R. sitting alone, dismissed the applicant’s motions for bias against her as inadmissible, arguing that they had merely been lodged to protract the proceedings.
41. At the hearing on 10 January 1995, at which the applicant and G.S. were present, Judge R. gave a copy of the minutes of F.’s hearing on the previous day to the applicant. The hearing then had to be adjourned following the applicant’s appeal against the decision on his motion for bias. In a statement of 12 January 1995, Judge R. declared that she was not biased but that she was convinced that a settlement with the applicant was impossible. The applicant then lodged two further motions challenging Judge R. for bias.
42. On 14 February 1995 the Berlin Court of Appeal dismissed the applicant’s appeal against the District Court’s decision of 10 January 1995 and his further motions challenging R. On 29 March 1995 the Federal Court of Justice dismissed the applicant’s appeals against the decisions of the Berlin Court of Appeal of 4 November 1994 and 14 February 1995 as inadmissible, as no appeal lay against these decisions. In several further submissions to the District Court, the applicant again requested the court to order another expert report, arguing that his daughter had been indoctrinated by G.S., and again challenged Judge R. for bias.
43. On 23 May 1995 the Berlin Tempelhof-Kreuzberg District Court, with Judge R. sitting alone, held a further hearing attended by the applicant, G.S. and their respective counsel. The court dismissed the applicant’s two motions challenging R. for bias as inadmissible, as they were merely aimed at preventing a decision. It noted that the applicant, who was awarded the opportunity to lodge motions and comment on G.S.’s motions, refused to make any statements at the hearing, but had set out his views in numerous detailed written submissions to the court. The applicant then requested to grant him custody of F. or at least an ample right of access.
44. The District Court granted the divorce and awarded G.S. custody of F. and her half-brother, born in wedlock but stemming from the relationship between G.S. and her new partner. The applicant’s access to F. was suspended. In reaching its decision, the court had regard to the statements made by both parties at their hearings on 6 May 1991 and on 21 June 1993 before Judge S., as well as to the hearing of G.S. on 23 May 1995.
45. As regards custody of F., the District Court noted that the applicant had not objected to G.S.’s motion to be granted custody. It considered that F., then aged ten, had shown close links to her mother and her new family. There was no indication of any danger to her further development if she remained with her mother. It was, therefore, not necessary to take into account outdated expert reports or to hear witnesses.
46. As to the applicant’s right of access, the court deemed it necessary, in the interest of the child’s well-being, to prohibit any contacts with F. It noted that the persistent quarrel between her parents constituted a heavy burden on F. The child now attempted to cope with this conflict by suppressing her memory of meetings with her father and by seeking as much distance as possible from him. The court found that it could not ignore the determined wish of the child as expressed at the hearing of 9 January 1995. It was therefore obliged to suspend the applicant’s access to F. It argued that a child’s welfare was more important than a father’s right of access.
47. The applicant’s further two motions challenging Judge R. for bias were to no avail.
48. On 3 July 1995 the applicant lodged an appeal against the District Court’s judgment delivered on 23 May 1995 with the Berlin Court of Appeal. His requests on 31 October 1995 and 17 June 1996 for an interim injunction ordering access were, following hearings, dismissed on 24 November 1995 and 23 July 1996 respectively by the Berlin Court of Appeal. That court found that, given F.’s express resistance against meeting the applicant and the time which had elapsed since their last contact, a decision on the applicant’s access to F. necessitated further findings of fact, notably the report of a psychological expert.
49. On 22 March 1996 the Berlin Court of Appeal ordered an expert report on the question if and to what extent contacts between the applicant and his daughter were in F.’s best interest. It appointed as expert T.S., a certified psychologist acting as expert for different family courts since 1987.
50. On 4 March 1997 (decision served on 20 March 1997) the Berlin Court of Appeal, following an oral hearing on 7 February 1997 in the presence of the applicant, his counsel, G.S.’s counsel and the expert T.S., dismissed the applicant’s appeal.
51. The Court of Appeal notably found that it was in F.’s best interest to exclude the applicant’s right of access pursuant to Section 1634 § 2, second sentence, of the Civil Code (see paragraph 63 below). In reaching this conclusion, the court relied on the report dated 30 December 1996, comprising fifty-six pages, and the oral hearing on 7 February 1997 of the psychological expert T.S. The expert had questioned and examined F. on five occasions and each of her parents on eight occasions respectively. Given the refusal of both F. and G.S. to meet the applicant in the presence of the expert, the latter had questioned them all separately. Having regard to the findings of this expert, the court noted that F., then aged twelve, had a negative attitude towards her father. The court, like the expert, considered that the negative attitude of the child towards the applicant might have partly been caused by the mother’s influence, though not to the extent believed by the applicant. The court noted that according to the expert, the parents’ ongoing quarrels had placed a great strain on the child. The court acceded to the findings of the expert that, in view of F.’s intensive resistance against any contact with her father, enforcing such contacts might cause her serious psychological harm. The court further found that the expert opinion on the question whether it was in F.’s best interest to have contacts with her father was exhaustive and conclusive. Accordingly, it had not been necessary to appoint a second expert or a psychiatric expert as requested by the applicant.
52. The Court of Appeal further explained that it did not consider it suitable to limit in time the prohibition on access, as it could not be foreseen whether, if at all, F. might give up her resistance. Both parents were under an obligation to contribute to a change in her attitude. The main responsibility lay with F.’s mother, who would have to overcome her own negative feelings towards the applicant in order to influence F. and to improve her father’s image. If the applicant respected his daughter’s wish to keep distance for a longer period of time, there would be a possibility to resume contacts carefully at a later stage. The Court of Appeal, referring to Sections 50 a § 3, first sentence, and 50 b § 3, first sentence, of the Act on Non-Contentious Proceedings (see paragraphs 64-65 below) considered that it had not been required to hear F. and her mother personally.
53. In a letter to the applicant dated 6 April 1997, the presiding judge of the Court of Appeal explained, inter alia, that G.S.’s allegations that F. had been sexually abused by the applicant had not been addressed in the court’s judgment as they had been irrelevant. Moreover, he informed the applicant that the court had refrained from hearing F. again pursuant to Section 50 b § 3, first sentence, of the Act on Non-Contentious Proceedings. Given the lengthy and embittered dispute, the court had not considered it justifiable to subject F. to the strains caused by yet another hearing, as she had repeatedly expressed her will in an unequivocal manner.
54. On 17 February 1998 the Berlin Court of Appeal dismissed the applicant’s objection against the decision that the costs of the proceedings before the Regional Court of some 8,000 Deutschmarks, which notably comprised the expenses of the expert T.S., be borne by him. On 20 December 1999 the Berlin Court of Appeal dismissed the applicant’s objection against the decision that half of the costs for the expert report rendered by L.L. be borne by him. Several further objections and appeals concerning the costs of the proceedings, including a motion to challenge a judge of the Berlin Court of Appeal for bias, were to no avail.
55. In the context of separate proceedings concerning the applicant’s request of 23 July 1992 for the enforcement of his right of access under the terms of the agreement of 2 April 1990, the District Court held a hearing on 9 November 1992, with Judge S. sitting alone. Following the hearing, the District Court stated that the parties had agreed that the applicant should have contact with F. on her birthday and on Christmas for three hours respectively, and on three days during the Christmas holidays.
56. On 28 November 1992 the District Court, with Judge G. sitting alone, granted the applicant access to F. for three hours on her birthday by way of an interim injunction. G.S. subsequently withdrew her appeal against this injunction.
57. On 11 March 1993 the District Court informed the parties that the request for enforcement of access had been settled at the hearing on 9 November 1992.
58. The applicant repeated requests for enforcement measures and for an amendment of the decision on access. The mother suggested to join the proceedings no. 159 F 13061/89 and no. 159 F 10373/92. On 22 June 1993 the District Court informed the parties that all motions concerning access be processed in the context of the proceedings no. 159 F 13061/89.
59. On 21 April 1997 the applicant, represented by counsel, lodged a complaint with the Federal Constitutional Court. Referring to the Court of Appeal’s decision of 4 March 1997 in the proceedings no. 159 F 13061/89, he complained in his two-page submissions that the suspension of access to his child violated his parental rights and was contrary to the child’s well-being. He complained that the expert appointed in the appeal proceedings had been misled by G.S. and that further expertise had been necessary. He also noted that G.S. had not appeared at the court hearing. In his view, he was blamed for his lengthy struggle to secure his right of access. Subsequently, upon query, the applicant filed a further document. On 11 May 1997 the applicant filed further submissions in support of his lawyer’s observations.
60. On 15 September 1997 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.
61. On 30 August 2000 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint concerning his request for further information about his daughter, notably her current address. The said proceedings are the subject matter of the application no. 63309/00 before the Court. Moreover, on 16 July 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint concerning the rejection of his renewed request for access to F. In the course of these proceedings, the applicant met his daughter once in May 1999. The latter proceedings are the subject matter of the application no. 32299/02 before the Court.
62. On 29 November 2002 F. attained the age of majority. The applicant had not been granted a right of access to her until then.
63. At the relevant time, i.e. before the entry into force of the amended Law on Family Matters (Reform zum Kindschaftsrecht) on 1 July 1998, the relevant provision of the Civil Code concerning access to a child born in wedlock was worded as follows:
Section 1634
“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing.
2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare.”
64. Proceedings in family matters are governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). Pursuant to Section 50 a § 1 of that Act, in its version in force at the relevant time, in proceedings concerning parental custody the family court shall, as a rule, hear a child’s parents in person. Section 50 a § 3 provides that the family courts may dispense with such a hearing only for sound reasons.
65. Pursuant to Section 50 b § 1 of the said Act, in proceedings concerning parental custody the family court hears the child concerned in person if the child’s affinities, ties or will are relevant for the decision. It also does so if it is necessary to obtain a direct impression of the child in order to establish the facts of the case. Pursuant to Section 50 b § 2, in proceedings concerning parental custody the family court always hears in person a child who has attained the age of fourteen and is not legally incapacitated. The family courts may dispense with such a hearing only for sound reasons (Section 50 b § 3).
NON_VIOLATED_ARTICLES: 6
8
NON_VIOLATED_PARAGRAPHS: 6-1