P, C, & S v. United Kingdom

P was a U.S. citizen and C was her British husband. Their daughter, S, was born in 1998 in the UK. In 1985, P had given birth to a son B in the US. In 1994, the California authorities took B into protective custody, alleging that P was harming B by administering laxatives to him inappropriately. The authorities suspected P of induced illness abuse – Munchausen by proxy syndrome, a label used to describe a psychiatric illness where women seek attention by inducing illness in their children or invent an account of illness. P was charged with cruelty towards B and endangering his health. In October 1995, she was convicted of a lesser offence, and B was ordered to live with his father.

After her marriage to C, P’s ex-husband informed the authorities that P was in the UK, and P’s doctor told the authorities that P was pregnant. The local authorities began an assessment of the risk to the unborn child, and it was decided that the unborn child be placed on the Child Protection Register at birth, while an expert was subsequently appointed to make an assessment. When P and C withdrew their consent to have an expert assessment, the local authority, noting the parents’ lack of cooperation, decided to take out an emergency protection order at the birth, claiming ‘reasons to believe that the baby would be at risk of significant harm if left in the care of his/her parents’.

The baby, S, was born at 4:42 a.m. The local authority obtained a protection order at 10:30 a.m. and S was taken from the hospital at 4:00 p.m. and placed in foster care. A contact visit was arranged for C and his parents the following day. P was recorded as being distraught. The local authority then applied for a care order under the Children Act 1989. In the meantime, P and C were allowed supervised contact with S three times a week, initially, and, later, four times a week. Officials observed that P and C developed an excellent relationship with S.

The care order proceedings began on 2 February 1999, and P was initially represented by counsel. However, on 5 February, her lawyers applied to withdraw, alleging that P was being unreasonable. The judge permitted the withdrawal and allowed an adjournment of only four days. On 8 March, after a 20-day hearing involving numerous witnesses, the judge ordered S to be placed in the care of the local authorities. He concluded, among other things, that P suffered from a personality disorder and that S’s moral and physical health would be endangered by leaving her with her parents.

The judge then fixed a date one week later to proceed on the application for the freeing of S for adoption. P and C attended the hearing, but did not have counsel, and the judge refused to postpone the hearing to enable them to obtain counsel. The judge issued an order freeing S for adoption without any provision for continued direct contact with her parents. P was refused leave to appeal, and S was adopted in March of 2000. There was no provision for direct contact between S and her parents.

P and C filed an application with the European Court of Human Rights complaining that the measures taken by the authorities in removing S from her parents, placing her in care, and freeing her for adoption violated Article 8 (right to respect for family life), Article 6 (right to fair trial), and Article 12 (right to marry) of the European Convention on Human Rights (“Convention”).

[Adapted from INTERIGHTS summary, with permission]

The Court held that there had been a violation of Article 6. The Court reasoned that, while there is no automatic right to legal aid or legal representation for those involved in civil proceedings, issues of access to the court and fairness must be taken into account when assessing whether there is a violation. Moreover, where legal assistance is indispensable for effective court access, failure to provide an applicant with a lawyer may be a violation. In the proceedings, P had been required as a parent to represent herself in proceedings of exceptional complexity, which lasted 20 days and required the review of highly complex expert evidence relating to her own fitness to be a parent, and the judge himself commented that if P had been represented by a lawyer, her case would have been conducted differently. The Court therefore found that the procedures that had been adopted were not only prima facie unfair but also prevented the applicants from putting forward their case in a proper and effective manner, and applicants did not have fair and effective access to court in violation of Article 6.

The Court further held that Article 8 had been violated. While the local authority was under a duty to investigate whether P would cause her child harm, the taking of a new-born baby into care was an extremely harsh measure that was not justified by compelling reasons. There was no suspicion of life-threatening conduct, and the risk P posed to S could have been guarded against in a manageable hospital situation. Article 8 was further breached with respect to the care and freeing of adoption proceedings due to the lack of legal representation coupled with the lack of any real lapse of time between the two sets of proceedings, which effectively prevented P from participating in the decision-making process.

The Court found no violation of Article 12.

[Adapted from INTERIGHTS summary, with permission]

"Recognising that the courts in this matter were endeavouring in good faith to strike a balance between the interests of the parents and the welfare of S., the Court is nevertheless of the opinion that the procedures adopted not only gave the appearance of unfairness but prevented the applicants from putting forward their case in a proper and effective manner on the issues which were important to them. For example, the Court notes that the judge's decision to free S. for adoption gave no explanation of why direct contact was not to be continued or why an open adoption with continued direct contact was not possible, matters which the applicants apparently did not realise could, or should, have been raised at that stage. The assistance afforded to P. by the counsel for other parties' and the latitude granted by the judge to P. in presenting her case was no substitute, in a case such as the present, for competent representation by a lawyer instructed to protect the applicants' rights." Para. 99.

"The lack of legal representation of P. during the care proceedings and of P. and C. during the freeing for adoption proceedings, together with the lack of any real lapse of time between the two procedures, has been found above to have deprived the applicants of a fair and effective hearing in court. Having regard to the seriousness of what was at stake, the Court finds that it also preventedthem from being involved in the decision - making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests under Article 8 of the Convention. Emotionally involved in the case as they were, the applican t parents were placed at a serious disadvantage by these elements, and it cannot be excluded that this might have had an effect on the decisions reached and eventual outcome for the family as a whole." Para. 137.