McMichael v United Kingdom
| Judgment Date | 24 February 1995 |
a Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 307–B of Series A of the Publications of the Court, but a copy of the Commission's report is available from the registry.
EctHR
24021995
[1995] 2 FCR 718
McMichael v United Kingdom
EUROPEAN COURT OF HUMAN RIGHTS
24 FEBRUARY 1995
RYSSDAL, P, GÖLCÜKLÜ, PETTITI, MACDONALD, RUSSO, SPIELMANN, PALM, FOIGHEL, AND FREEMAN, JJ
Human rights – whether full disclosure a requirement in children's cases – whether fathers can be treated differently simply because the child was born out of wedlock.
The first and second applicants were two British citizens and married in 1990.
In 1987 the second applicant gave birth to a son. She had a relationship with the first applicant at the time but denied that he was the father. The child's father was not identified on the birth certificate.
The second applicant had a history of mental illness and was diagnosed to be suffering from a relapse when she gave birth to the child. The child was therefore perceived to be at risk.
The first applicant similarly had a history of mental illness.
Strathclyde council sought a place of safety order under s 37(2) of the Social Work (Scotland) Act 1968 and the child was placed with foster-parents.
In 1990 an application was made by the council to free the child for adoption. The first and second applicants refused to give their consent but the Sheriff ruled that they were withholding their consent unreasonably as the second applicant was incapable of caring for herself let alone the child and neither were suitable for parenting. The child was adopted by his foster-parents in 1993.
The first and second applicants brought proceedings before the European Court of Human Rights complaining that they had been deprived of the care and custody of their son. The second applicant alleged that documents were not made available to her. The first applicant alleged that he had been discriminated against on the basis that he as the natural father had no right to custody of the child or to participate in legal proceedings.
Held – (1) In the sensitive domain of family law there might be good reasons for not adopting the composition and procedures of a court of a classic kind. Nevertheless, a fair adversarial trial required that parties should have knowledge of and an opportunity to comment on the other side's case, whether that be their observations or their evidence. A failure to disclose the contents of such vital documents as social reports was capable of affecting the ability of participating parents to influence the outcome of a case as well as assess the prospects of appeal; and this was a violation of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").
(2) That violation under Article 6(1) was itself an interference with the first and second applicants' rights to respect for their family life under Article 8.
(3) The difference in treatment of a party because of his being the natural father was discriminatory but only if there was no reasonable and objective justification. Here there was no violation because the aim of the legislation was to identify "meritorious" fathers thereby protecting the interests of the child and the mother. This was a legitimate aim and the conditions imposed on natural fathers to enable them to gain recognition of the parental role respected the principle of proportionality between the means employed and the aim sought to be realized.
(4) As a result of the violation of Articles 6(1) and 8 the applicants would be awarded compensation of £8,000 jointly for the trauma, anxiety, and feeling of injustice they had experienced in connexion with the care proceedings attributable to their inability to see the confidential documents in question.
There appeared before the court:
NoteParagraphs 1 to 5 outline the procedure of the reference to the court and its constitution.
For the Government:
Mrs SJ Dickson, Foreign and Commonwealth Office: Agent
Mr TC Dawson, QC, Solicitor-General for Scotland
Mr J Reed, Advocate Counsel
Mr JL Jamieson, Solicitor, Scottish Office
Mr D McNab, Administrator, Scottish Office Advisers
For the Commission:
Mrs GH Thune Delegate
For the applicants:
Mr PT McCann, Solicitor Counsel
Mr T Ruddy, Trainee Solicitor Adviser
As to the facts I. The particular circumstances of the case A. Events up to and during 19876. The first applicant, Antony McMichael, and the second applicant, Margaret McMichael, live in Glasgow. They were born in 1938 and 1954 respectively and were married on 24 April 1990.
7. On 29 November 1987 the second applicant gave birth to a son, A. The first applicant, who was then known as Antony Dench, and the second applicant, were living together, although at that time each had their own home. At the time the second applicant expressly denied that the first applicant was A's father. The child's father was not identified on the birth certificate.
8. The second applicant had a history of severe and recurrent mental illness, diagnosed as manic depressive psychosis. She had first been ill in or about 1973
and had thereafter been compulsorily admitted to psychiatric hospitals on a number of occasions. While she and A were still in hospital after the birth, Dr R, the consultant psychiatrist who had treated her since 1985, found that she was suffering from a recurrence of her mental illness. He considered that if she were to go home with A, the child would be at risk. As a result, on 11 December 1987 the social work department of Strathclyde Regional Council ("the council") – this being the local government body having statutory responsibilities relating to the welfare of children in Glasgow and the surrounding area – applied for and were granted an order known as a "place-of-safety order", in accordance with s 37(2) of the Social Work (Scotland) Act 1968 ("the 1968 Act") (see para 50 below for an explanation as to such orders). The effect of this order was to authorize the council to keep A in the hospital for a period not exceeding seven days. The second applicant was informed and advised to seek legal advice.
9. The reporter to the Children's Panel for Strathclyde Region, being of the view that A might be in need of compulsory measures of care, arranged for a "children's hearing" to be convened, in accordance with s 37(4) of the 1968 Act (as to the functions of the reporter and the nature of children's hearings, see paras 46, 47, 50 and 51 below). The ground of referral of the case to the children's hearing was that "a lack of parental care [was] likely to cause [A] unnecessary suffering or seriously to impair his health or development", this being one of statutory grounds provided for under s 32 of the 1968 Act (see para 48 below). In support of the ground of referral, the following statement of facts was given:
"(1) ...
(2) That the parent suffers from a major psychiatric illness.
(3) That the parent refuses to take medication to stabilize her condition when not an in-patient at psychiatric hospital.
(4) That the parent has required to be admitted to psychiatric hospital on emergency basis ... on 5 June 1986, 5 December 1986 and 31 December 1986.
(5) That due to her psychiatric condition the parent is unlikely to be able to care adequately for the child."
10. At the children's hearing on 17 December 1987 the chairman explained to the second applicant the reasons stated by the reporter for the referral of the case. She indicated that she did not accept the ground of referral and, in particular, disputed paras 2, 3 and 5 of the statement of facts. The children's hearing accordingly instructed the reporter to apply to the Sheriff Court (the local court) for a finding as to whether the ground of referral was established, in accordance with s 42 of the 1968 Act (see para 54 below).
The children's hearing also issued a warrant under s 37(4) of the 1968 Act for A's continued detention in a place of safety until 6 January 1988 (see para 50 below). A subsequent warrant was granted by a further children's hearing on 5 January 1988.
11. On 23 December 1987 A was discharged from hospital and taken to foster-parents at Greenock, 24 miles from Glasgow. He has remained with them since then. On the same day the second applicant discharged herself from hospital. Arrangements were made for her to be taken three times a week for access visits
to A at the foster home, under the supervision of the social work department.
The first applicant, who also has as history of mental illness, was not included at this stage in the access arrangements. The principal reason for this was that the second applicant continued to deny that he was A's father and he did not himself make any claim to be the father. Other reasons were his aggressive and threatening attitude and his refusal to give information about his background.
B. Events during 198812. The second applicant complained about the placement in Greenock and inadequacy of access arrangements. At first she accepted the exclusion of the first applicant, but she and the first applicant subsequently complained about that also. She failed to appear for four of the access visits between 31 December 1987 and 18 January 1988.
13. On 21 January 1988 the reporter's application for a finding on the ground of referral was heard in the Glasgow Sheriff Court. The second applicant was present and represented by a solicitor. The first applicant also attended. The reporter led oral evidence from medical, nursery and social work witnesses, including Dr R. The first and second applicants both gave evidence. There was no documentary evidence before the court other than the ground of referral and statement of facts (referred to above in para 9). At the conclusion of the hearing the Sheriff found the ground of referral established. He remitted the case to the reporter for him to arrange a children's...
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