European Court of Human Rights

The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case.  Accordingly, as regards the facts, reference should be made to paragraphs 8-58 of the principal judgment (ibid., pp. 107-115).

In the principal judgment, the Court therefore reserved the whole of this question; it invited (a) the applicant to submit, within the next two months, full written particulars of her claim; and (b) the Government to submit, within two months of receipt of those particulars, their written comments thereon and, in particular, to notify the Court of any agreement reached between them and the applicant (paragraphs 91-92 of the reasons and point 5 of the operative provisions, pp. 126 and 127).

- on 8 and 21 September 1987, memorial of the applicant;

- on 21 December 1987 and 12 February 1988, memorials of the Government;

- on 21 January 1988, observations of the Delegate of the Commission.

AS TO THE LAW

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

The applicant claimed under this provision compensation for non-pecuniary damage and reimbursement of costs and expenses incurred in the proceedings before the Convention institutions.

A.  Costs and expenses

B.  Damage

(b)  The Government argued that although the alleged damage might have been the consequence of the local authority decisions in which the Court had found the applicant to have been insufficiently involved and of her lack of access to A and J, it was not attributable to the breaches of Articles 6 § 1 and 8 (art. 6-1, art. 8), since there was no evidence that the outcome would have been different if she had been more closely involved or if she had been able to have the question of her access to these children reviewed by a tribunal having jurisdiction to examine the merits of the matter.  Consequently, no causal link had been demonstrated between the violations of the Convention found by the Court and any damage alleged by the applicant.

The Government further contended that, having regard to particular facts of the case which they set out in their memorial, there was no evidence that a closer involvement of the applicant in the local authority's decision-making process or the availability of a judicial remedy on the access issue could actually have benefited her in practical terms.  Accordingly, she had not suffered a "loss of real opportunities", as that expression was understood in the Court's case-law, and the findings of violation of Articles 6 § 1 and 8 (art. 6-1, art. 8) therefore constituted sufficient just satisfaction for the purposes of Article 50 (art. 50).  If, however, the Court should take a different view on this point, then - the Government submitted in the alternative - any sum awarded to the applicant should, in all the circumstances of the case, not exceed £5,000.

(c)  The Delegate of the Commission considered that it was not possible to establish with any degree of certainty whether the relevant decisions would have been different if the breaches of Articles 6 § 1 and 8 (art. 6-1, art. 8) had not occurred.  In his view, the applicant should nevertheless receive a "reasonable amount" of compensation for non-pecuniary loss, which amount should reflect the serious nature of the issues involved.

Whilst the applicant was thus the victim of deficiencies of a procedural nature, they were all the same deficiencies that were intimately connected with an interference with one of the most fundamental of rights, namely that of respect for family life.

It is true that, having regard to the uncertainty of the family situation at the time and especially the applicant's resumption of her relationship with Mr. B, it appears somewhat unlikely that even with closer involvement on her part the local authority's decision of April 1981 would have been any different (see the principal judgment, pp. 108-111, §§ 12-18).  In view of the anxieties which she had expressed about caring for the children and the incident concerning the theft from a hospital safe, similar considerations apply to the decision of August 1981 (ibid., p. 111, §§ 19-21).  However, as the Court observed in paragraph 73 of the principal judgment, prompter communication to her of the latter decision might certainly have led her and her lawyers not to withdraw her objection to the parental rights resolution on 29 September 1981 (ibid., pp. 111-112, § 22).

More problematical is the effect of an earlier conclusion of the court proceedings instituted in December 1981 and terminated in November 1982: whilst it would have left less of an interval over which to assess the development of the applicant's personal situation, it would, on the other hand, have reduced the period during which the children had been forming bonds with their long-term foster parents and hence, conceivably, diminished the potentially disruptive effects of the children's removal from the new home in which they had been placed in December 1981 (ibid., p. 112, §§ 22-24).

As regards the possible value to the applicant of a judicial remedy on the merits of the access issue, it is noteworthy that she did succeed in obtaining a measure of access to the children in 1985, by which time they had been with their long-term foster parents for four years (ibid., pp. 112 and 114, §§ 22 and 28).  Furthermore, the different considerations involved mean, as the Court pointed out in paragraph 86 of the principal judgment, that a parent "may be able to adduce reasons warranting a continuation or restoration of access but not of his care of the child".  It cannot, in the Court's opinion, be excluded that if during the currency of the parental rights resolution the applicant had been able to have the question of her access to A and J reviewed by a court on its merits, she might have obtained some degree of satisfaction, especially if her application had been made at a time when it was clear that her relationship with Mr. B had ceased (ibid., p. 111, § 20).

In these respects she may therefore be said to have suffered some loss of real opportunities, warranting monetary compensation.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Decides to strike the case out of the list as far as the applicant's claim for costs and expenses is concerned;

2.  Holds that the United Kingdom is to pay to the applicant the sum of £8,000 (eight thousand pounds) for non-pecuniary damage;

3.  Rejects the remainder of the claim for just satisfaction.

Done in English and in French, and notified in writing on 9 June 1988 pursuant to Rule 54 § 2, second sub-paragraph, of the Rules of Court.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar