Boyle v. United Kingdom

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 16580/90

Terence BOYLE

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 9 February 1993)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . 1-2

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-37). . . . . . . . . . . . . . . . . . . . . . . 3-5

A. Particular circumstances of the case

(paras. 17-34). . . . . . . . . . . . . . . . . . . . . 3-4

B. Relevant domestic law and practice

(paras. 35-37). . . . . . . . . . . . . . . . . . . . . . 5

III. OPINION OF THE COMMISSION

(paras. 38-59). . . . . . . . . . . . . . . . . . . . . . . 6-9

A. Complaint declared admissible

(para. 38). . . . . . . . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 39). . . . . . . . . . . . . . . . . . . . . . . . 6

C. Article 8 of the Convention

(paras. 40-58). . . . . . . . . . . . . . . . . . . . . 6-9

CONCLUSION

(para. 59). . . . . . . . . . . . . . . . . . . . . . . . . . 9

DISSENTING OPINION BY MM. FROWEIN, WEITZEL,

DANELIUS AND MARTINEZ . . . . . . . . . . . . . . . . . . . . . . .10

APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .11

APPENDIX II DECISION OF THE ADMISSIBILITY. . . . . . . . . 12-15

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is Terence Boyle, a British citizen born in 1938

and resident in Blackburn. He is represented by Messrs. Forbes,

solicitors practising in Blackburn.

3. The application is directed against the United Kingdom. The

Government are represented by their Agent, Mrs. Audrey Glover of the

Foreign and Commonwealth Office.

4. The case concerns the applicant's complaint, prior to the entry

into force of the Children Act 1989, that he was refused access to his

nephew in care by the local authority and that he had no possibility

of applying for access to a court. It raises issues under Article 8 of

the Convention.

B. The proceedings

5. The application was introduced on 5 October 1989 and registered

on 14 May 1990.

6. On 7 September 1990, the Commission decided to communicate the

application to the respondent Government for their written observations

on the admissibility and merits of the application.

7. The Government submitted their written observations on

17 September 1991. The applicant submitted his written observations

in reply on 6 December 1991.

8. The Commission granted the applicant legal aid on

18 October 1991.

9. On 15 May 1992, the Commission declared the application

admissible.

10. The parties were then invited to submit any additional

observations on the merits of the application. On 3 July 1992, the

applicant submitted additional observations. On 16 December 1992, the

Government submitted further observations on the merits.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case. In the light of the parties' reactions, the Commission

now finds that there is no basis on which a friendly settlement can be

effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

13. The text of the Report was adopted by the Commission on

9 February 1993 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. A schedule setting out the history of the proceedings before the

Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

17. The applicant has a sister M. who gave birth to a son C. on

5 April 1980.

18. The applicant visited M. and C. in the hospital after the birth.

Following the birth, M. suffered from post-natal depression and the

applicant volunteered to look after C. at the weekends in order to give

M. a rest. In the first year of his life, C. often stayed at weekends

in the applicant's house and the applicant would frequently take C. for

walks in his pram. M. was also suffering increasing matrimonial

problems. Around Easter 1981, the applicant recalls being summoned by

a neighbour as M.'s husband had assaulted both M. and her eldest son.

When the applicant arrived, the police were there and C. was sitting

on the floor crying. He held out his arms to the applicant who picked

him up to comfort him and told him that he could come home with him.

The applicant states that it was at this moment he realised how much

he loved C. and felt how much he needed the applicant's love and

protection.

19. Between December 1981 and August 1986, while he was unemployed,

the applicant saw C. very frequently and generally spent a lot of time

with him, going for walks together and on trips to the Lake District

and to the sea. He states that C. was spending as much time with him

as if he had actually been his own son and that a bond had formed based

on sharing experiences and relying on one another for company. After

that period the applicant who was no longer unemployed continued to

have close contact with the boy who only lived a short distance away.

20. In or about 1986, M. obtained an order of legal separation and

her husband left the matrimonial home. After this, C. came round to see

the applicant every night and at weekends. In July 1988, the applicant

bought M. his first bicycle and taught him how to ride it.

21. On application by the NSPCC (National Society for the Prevention

of Cruelty to Children), C. was removed from the care of his mother

under a Place of Safety Order on 2 February 1989 on suspicion that he

had been sexually abused by her. On 3 February 1989, M. was arrested

and charged with sexual offences.

22. C. was placed with foster-parents on 2 February 1989. According

to the applicant, during the period that followed, C. repeatedly asked

to see the applicant.

23. Interim care orders were granted by the Juvenile Court on

9 February 1989, 9 March 1989 and 6 April 1989.

24. On 12 April 1989, Lancashire County Council (the local authority)

held a case conference and decided that the NSPCC should apply for a

full care order on behalf of the local authority in view of M.'s

continued refusal, supported by the applicant and other members of the

family, to accept that abuse had taken place. The same day they

received notification from the Crown Prosecution Service that the

charges against M. were not to be pursued for lack of evidence.

25. On 26 April 1989, the Juvenile Court found that the allegations

of sexual abuse had been made out and a care order was made in favour

of the local authority. In the report of the guardian ad litem of

13 April 1989 before the Court, the applicant was described as having

been a "a good father figure" to C..

26. On 21 June 1989, a social worker visited M. and the applicant to

discuss access prior to a joint meeting of the local authority and

NSPCC on the matter.

27. The applicant had made requests for access to C. throughout C.'s

placement in care. Following a request dated 28 August 1989, the local

authority informed the applicant that they were about to review access

arrangements. On 7 September 1989, he was informed that he was to be

allowed a supervised access visit to C., which took place on

13 September. According to the applicant, C. hugged him on this

occasion.

28. On 30 October 1989, following a case conference attended by M.,

the local authority decided to terminate M's access to C. They also

decided not to grant further access to the applicant since he continued

to deny that sexual abuse by M. had occurred.

29. M. withdrew her appeal against the termination of access before

the Juvenile Court on 24 April 1990.

30. The local authority decided to place C. for adoption and applied

to the county court for an order freeing him for adoption.

31. On 5 July 1991, the Court made the order. The judge had talked

with C. beforehand in his chambers. In his judgment, the judge reported

that C. had stated that he would not mind seeing his mother and other

members of his family but that he preferred to be adopted. The judge

reviewed the history of the case and criticized the "blinkered"

approach taken by the authorities and other shortcomings in the

procedures adopted. He stated that he had grave reservations on the

correctness of the original findings that sexual abuse had taken place.

However, in view of the time which had elapsed and the expressed

preference of C., he considered adoption was in C.'s best interests and

dispensed with M.'s consent.

32. Following the coming into force of the Children Act 1989, the

applicant was on 9 December 1991 granted leave to apply to the county

court for a contact order. On 27 February 1992 following a hearing the

court refused to make such an order.

33. The judge noted that C. was in the process of being introduced

to prospective adopters. He recalled that C. was a mature boy who knew

his own mind and whose wishes ought seriously to be taken into account

and that he had stated to his social worker that he did not wish to see

his uncle. The judge considered that C. had his sights set on settling

with his new family and at this time should not be required to renew

contacts.

34. By letter dated 17 July 1992, the local authority informed M.

that the introduction of C. to an adoptive family had ceased.

B. Relevant domestic law and practice

35. Prior to the coming into force of the Children Act 1989, non-

parental relatives had no possibility of applying to a court for access

to a child, or to challenge a termination of access to such child,

taken into compulsory care by a local authority.

36. In October 1991, the Children Act 1989 came into force.

37. Pursuant to Section 34(3) of the 1989 Act, a non-parental

relative may apply to court for leave to apply for a contact order in

respect of a child in the care of a local authority.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

38. The Commission declared admissible the applicant's complaint that

the local authority's refusal to grant him access to his nephew

violates his right to respect for his family life and that he was

unable to have the question of access to his nephew determined by a

court.

B. Points at issue

39. The issues to be determined are whether:

- whether there has been a violation of Article 8 (Art. 8) of the

Convention due to the refusal to give the applicant access to his

nephew and the absence of any possibility of applying to a court

in respect of that refusal.

C. Article 8 (Art. 8) of the Convention

40. Article 8 (Art. 8) of the Convention provides:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

41. The Commission has first examined whether the relationship which

the applicant enjoyed with his nephew M. falls within the scope of

"family life" as protected by the above provision.

42. The applicant submits that he enjoyed a very close relationship

with M. and that as a result of the absence of C.'s father, he was in

effect a "father figure" to the boy. The Government submit that the

applicant and C. have never co-habited and that the bonds of the uncle-

nephew relationship are insufficient in themselves to constitute

"family life".

43. The Court in the Marckx case stated that "family life" within the

meaning of Article 8 (Art. 8) includes at least the ties between near

relatives, for instance those between grandparents and grandchildren,

since such relations may play a considerable part in family life (Eur.

Court H.R., Marckx judgment of 13 June 1979, Series A no. 31 p. 21

para. 45). In the Commission's view, cohabitation is however not a

prerequisite for the maintenance of family ties which are to fall

within the scope of the concept of "family life". Cohabitation is a

factor amongst many others, albeit often an important one, to be taken

into account when considering the existence or otherwise of family ties

(see eg. No. 12402/86, Dec. 9.3.88, D.R. 55 p. 224-234).

44. The Commission recalls in this case that the applicant had

frequent contact with C. from the time of C.'s birth and spent

considerable time with him. While it appears the two families did not

share the same household, they lived in close proximity and C. often

made "weekend stays" at the applicant's home. The Commission further

notes that the guardian ad litem in the care proceedings described the

applicant as a "good father figure" to C.

45. In these circumstances, and having regard to the absence of C.'s

father, the Commission finds there was a significant bond between the

applicant and C., and that this relationship fell within the scope of

the concept of "family life".

46. Where a parent is denied access to a minor child take into care,

there is in general an interference with the parent's right to respect

for family life as protected by Article 8 para. 1 (Art. 8-1) of the

Convention. This however is not necessarily the case where other close

relatives are concerned (No. 12402/86, loc. cit. at p. 234). Access

by relatives to a child is normally at the discretion of the child's

parents and, where a care order has been made in respect of the child,

this control of access passes to the local authority. A restriction

of access which does not deny a reasonable opportunity to maintain the

relationship will not of itself show a lack of respect for family life.

47. The Commission recalls however with regard to the present

applicant that apart from one visit in September 1989, all contact with

C. was prohibited thereby preventing any continuance of the applicant's

relationship with him. It finds that this amounts to an interference

with the applicant's right to respect for his "family life" as

guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.

48. Consequently, it must be determined whether the interference was

justified under Article 8 para. 2 (Art. 8-2) of the Convention in

particular, whether it is "in accordance with the law", pursues one or

more of the aims enumerated and is "necessary in a democratic society"

for that or those aims.

49. As regards the requirement of "in accordance with the law", the

Commission notes that this aspect is not in dispute between the

parties. At the relevant time, a local authority, in exercising the

statutory duties in safeguarding the welfare of a child in its care,

enjoyed a discretion as to access. The Commission finds no indication

that the exercise of the discretion in this case was not "in accordance

with the law".

50. As regards the purpose of the interference, the Commission

recalls that the local authority terminated the applicant's access

since he continued to deny that sexual abuse had occurred, which in

their view rendered further contact detrimental to C. The Commission

has doubts as to the validity of this approach. The Commission does not

however need to express a view as to whether sexual abuse did or did

not occur in this case. It accepts that in taking the decision, the

local authority acted with the purpose of safeguarding C's health and

rights within the meaning of the second paragraph of Article 8

(Art. 8).

51. The question remains whether the interference was "necessary".

52. The case-law of the Commission and the Court establishes that the

notion of necessity implies that the interference corresponded to a

pressing social need and that it is proportionate to the aim pursued.

Further, in determining whether an interference in necessary in a

democratic society, the Commission and the Court will take into account

that a margin of appreciation is left to the Contracting States, which

are in principle in a better position to make an initial assessment of

the necessity of the given interference (see e.g. Eur. Court H.R.,

W. v. United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27,

para. 60).

53. In this context, the Commission and the Court have established

that there are implied procedural requirements. In the case of parents,

what has to be determined is :

"... whether, having regard to the particular circumstances

of the case and notably the serious nature of the decisions

to be taken, the parents have been involved in the

decision-making process, seen as a whole, to a degree

sufficient to provide them with the requisite protection of

their interests. If they have not, there will have been a

failure to respect their family life and the interference

resulting from the decision will not be capable of being

regarded as 'necessary' within the meaning of Article 8

(Art. 8)."

(W. v. United Kingdom judgment, loc. cit. p. 29, para. 64).

54. The present applicant is the uncle, not the parent, of the child

in care and regard must be had to the difference in the nature of this

relationship. The applicant's relationship as an uncle will not require

the same level of involvement. The Commission therefore examined

whether the decision-making process in this case provided the applicant

with the requisite protection of his interest in light of the nature

of his relationship with C.

55. The Commission recalls that the applicant has complained in this

respect of his inability to bring the matter of access before the

court. It notes that since the entry into force in October 1991 of the

Children Act 1989, a procedure for applying to a court in matters of

access generally has been implemented and that the applicant has made

use of it. This application however is concerned only with the

situation prevailing prior to that date.

56. The Commission considers that the procedural requirements

implicit in Article 8 para. 2 (Art. 8-2) cannot be interpreted as

automatically necessitating access to a court. In a case concerning

the termination of access by grandparents to grandchildren in care, the

Commission found that the decision-making procedure, which did not

afford the possibility of access to court, nonetheless provided the

grandparents with sufficient protection of their interest, since "the

views of the were taken into account and they were able

to make representations on several occasions in order to obtain a

review of the situation" (No. 12402/86 loc. cit at p. 237).

57. In the present case, the local authority discussed the matter of

access with the applicant on 21 June 1989 prior to a meeting and that

he was consequently allowed one access visit. The decision to

terminate access was made at a case conference to which he was not

invited and without prior invitation of his views. The Commission

accepts that necessarily the local authority gave greater emphasis to

the involvement of C.'s mother in the decision-making process.

However, it appears that the local authority, and the NSPCC who were

acting on their behalf, took the view early, if not immediately, in the

case that the refusal of M. and her family to acknowledge that abuse

had occurred was a bar to any form of rehabilitation. No consideration

appears to have been given to any possible compromise solution. In

light of this fundamental conflict between the local authority and C.'s

family, including the applicant, there was little or no scope for any

meaningful dialogue. The available consultation process was thereby

rendered nugatory.

58. The Commission considers it unnecessary to decide whether a court

alone could provide the necessary forum or mechanism for obtaining an

objective and meaningful review of the applicant's requests as to

access and his complaints as to the approach taken by those acting on

behalf of the local authority. It finds that the absence of such a

forum or mechanism in the present case discloses a fundamental

shortcoming since the applicant as a result was not involved in the

decision-making procedure to the degree sufficient to provide him with

the requisite protection of his interest. Consequently, the

interference complained of cannot be regarded as "necessary" within

the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

CONCLUSION

59. The Commission concludes, by 14 votes to 4, that there has been

a violation of Article 8 (Art. 8) of the Convention.

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

DISSENTING OPINION BY MM. FROWEIN, WEITZEL, DANELIUS AND MARTINEZ

The applicant complains of having been refused access to his

nephew and of having been unable to have the question of access

determined by a court.

We accept that "family life" within the meaning of Article 8 of

the Convention may exist not only between parents and children but also

between more distant relatives such as uncle and nephew. However, the

requirements of Article 8 must, generally speaking, be considered to

be less far-reaching in regard to such family relationships.

Although there seems to have been a close emotional relationship

between the applicant and his nephew during the latter's early

childhood, we cannot find that the local authority acted in breach of

Article 8, when deciding, after the nephew had been placed with

foster-parents, no longer to grant the applicant access to him. We

note in this regard that, at least during part of the period concerned,

preparations were made for the nephew's adoption and that the nephew

himself wished to be adopted.

The European Court of Human Rights has pointed out that Article 8

of the Convention also has a procedural aspect: when a child is in

care, the parents shall be involved in the decision-making process to

a degree sufficient to provide them with the requisite protection of

their interests (Eur. Court judgments of 8 July 1987, W. v. the United

Kingdom, Series A no. 121, p. 29, para. 64; B. v. the United Kingdom,

Series A no. 121, p. 73, para. 64, and R. v. the United Kingdom,

Series A no. 121, p. 118, para. 68).

We consider, however, that these procedural rights protected by

Article 8 cannot be the same insofar as more distant relatives are

concerned. In this respect, the domestic authorities must have a wider

discretion, when deciding whether or to what extent it is appropriate

to involve such relatives in the decision-making process. In the

present case it appears that the local authority was in touch with the

applicant on 21 June 1989 to discuss the question of access with him.

Moreover, the county court judge found, on 27 February 1992, that the

applicant's nephew had declared that he did not wish to see the

applicant. Having regard to all these circumstances, we do not

consider that the local authority violated its obligations under

Article 8 or that the procedure as such, as applied in the present

case, was in breach of that Article.

For these reasons we conclude that Article 8 has not been

violated in the present case.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

05.10.89 Introduction of the application

14.05.90 Registration of the application

Examination of admissibility

07.09.90 Commission's decision to invite the parties to submit

observations on the admissibility and merits

17.09.91 Government's observations

18.10.91 Commission's grant of legal aid

06.12.91 Applicant's reply

15.05.92 Commission's decision to declare the application

admissible

Examination of the merits

15.05.92 Commission's deliberations

03.7.92 Applicant's observations

04.7.92 Consideration of the state of proceedings

17.10.92 Consideration of the state of proceedings

16.12.92 Government's observations on the merits

09.02.93 Commission's deliberations on the merits, final votes

and adoption of the Report