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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> H. v. THE UNITED KINGDOM (ARTICLE 50) - 9580/81 [1988] ECHR 9 (9 June 1988) URL: http://www.bailii.org/eu/cases/ECHR/1988/9.html Cite as: (1991) 13 EHRR 449, [1988] ECHR 9

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In the case of H v. the United Kingdom*,

_______________

* Note by the Registrar: The case is numbered 3/1986/101/149. The

second figure indicates the year in which the case was referred to the

Court and the first figure its place on the list of cases referred in

that year; the last two figures indicate, respectively, the case's

order on the list of cases and of originating applications (to the

Commission) referred to the Court since its creation.

_______________

The European Court of Human Rights, taking its decision in plenary

session pursuant to Rule 50 of the Rules of Court and composed of the

following judges:

Mr. R. Ryssdal, President,

Mr. J. Cremona,

Mr. Thór Vilhjálmsson,

Mr. G. Lagergren,

Mr. F. Gölcüklü,

Mr. F. Matscher,

Mr. J. Pinheiro Farinha,

Mr. L.-E. Pettiti,

Mr. B. Walsh,

Sir Vincent Evans,

Mr. R. Macdonald,

Mr. C. Russo,

Mr. R. Bernhardt,

Mr. J. Gersing,

Mr. A. Spielmann,

Mr. J. De Meyer,

Mr. N. Valticos,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy

Registrar,

Having deliberated in private on 24 March and 28 May 1988,

Delivers the following judgment, which was adopted on the

last-mentioned date, on the application in the present case of

Article 50 (art. 50) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention"):

PROCEDURE AND FACTS

1. The case was referred to the Court on 28 January 1986 by the

European Commission of Human Rights ("the Commission"). It originated

in an application (no. 9580/81) against the United Kingdom of Great

Britain and Northern Ireland lodged with the Commission in 1981 by a

British citizen.

2. On 23 October 1986, the Chamber constituted to examine the

case relinquished jurisdiction in favour of the plenary Court (Rule 50

of the Rules of Court). By judgment of 8 July 1987 ("the principal

judgment"), the plenary Court held that the applicant had been the

victim of breaches of Articles 6 § 1 and 8 (art. 6-1, art. 8) of the

Convention by reason of the length of proceedings instituted by her

regarding her access to her child, a ward of court committed to the

care of a local authority (Series A no. 120-B, paragraphs 67-90 of the

reasons and points 2 and 3 of the operative provisions, pp. 58-64).

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 8-62 of

the principal judgment (ibid., pp. 47-56).

3. At the Court's hearing on 25-26 November 1986, the Government

of the United Kingdom ("the Government") reserved their position on

the applicant's claim for just satisfaction, which claim had not then

been quantified.

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 4 of the

operative provisions, pp. 64-65).

4. In accordance with the foregoing invitation and the

President's directions, there were filed at the registry:

- on 8 September 1987, memorial of the applicant;

- on 21 December 1987, memorial of the Government;

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

5. The Government's memorial and letters subsequently addressed

to the registry by the Government and the applicant gave details of a

settlement they had reached as regards the latter's claim in respect

of costs and expenses referable to the proceedings before the

Commission and the Court. She would accept, in full and final

satisfaction of that claim, payment to her by the Government of

£5,229.05, less the amounts received by her from the Council of Europe

by way of legal aid.

6. Having consulted the Agent of the Government, the Delegate of

the Commission and the representative of the applicant, the Court

decided, on 24 March 1988, that there was no need to hold a hearing.

AS TO THE LAW

7. Under Article 50 (art. 50) of the Convention,

"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 damage and

reimbursement of costs and expenses incurred in the proceedings before

the Convention institutions.

A. Costs and expenses

8. Since delivering the principal judgment, the Court has been

informed of a friendly settlement concluded between the Government and

the applicant, concerning the claim for costs and expenses (see

paragraph 5 above). Having regard to the terms of the settlement and

to the absence of any objection on the part of the Commission's

Delegate, the Court finds that the agreement is of an "equitable

nature", within the meaning of Rule 53 § 4 of the Rules of Court.

Accordingly, the Court takes note of the agreement and considers it

appropriate to strike the case out of the list as far as that claim is

concerned.

B. Damage

9. (a) The applicant claimed compensation, exemplary in amount,

of £500,000 for the violations of Articles 6 § 1 and 8 (art. 6-1,

art. 8) of the Convention found by the Court in the principal

judgment. Such compensation was to cover various items, including the

permanent loss of her relationship with her daughter A; the

deprivation of the latter's love, companionship and support; her

inability to have another child; the exacerbation of her illness;

strain and distress occasioned by the nature and length of the

litigation in England; and loss of earnings by her husband, who had

allegedly been obliged to relinquish his employment in order to care

for her.

(b) The Government argued that although certain of the alleged items

of damage might have been the consequence of the applicant's loss of

and lack of access to the child, they were not attributable to the

breaches of Articles 6 § 1 and 8 (art. 6-1, art. 8), since there was

no evidence that the outcome of the proceedings instituted by her with

regard to access would have been different even if they had been

concluded within a "reasonable time". 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 the facts of

the case and in particular to the applicant's history, there was no

evidence that, had the delays in those proceedings not occurred, the

opportunities afforded to her therein could have genuinely 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.

10. The Court would recall in the first place that the principal

judgment was in no way concerned with the justification for such

matters as the taking into public care or the adoption of the child or

the restriction or termination of the applicant's access to her.

Violations of Articles 6 § 1 and 8 (art. 6-1, art. 8) were found

solely on account of the duration of the proceedings in question (see

the principal judgment, pp. 59-63, §§ 70-86, and pp. 63-64, §§ 87-90).

Whilst the applicant was thus the victim of a deficiency of a

procedural nature, it was all the same a deficiency that was

intimately connected with an interference with one of the most

fundamental of rights, namely that of respect for family life.

11. The Court agrees with the Government that it is not

established that the applicant's inability to have another child and

the exacerbation of her illness were due to the violations of the

Convention. The same applies to the claim in respect of loss of

earnings by her husband, which has not been pursued in any detail or

even quantified.

12. As regards the applicant's loss of her relationship with her

daughter and the deprivation of the latter's love, companionship and

support, which she attributed to the breaches of the Convention, it

cannot be affirmed with certainty that these matters would not have

occurred if the relevant proceedings had been terminated more

expeditiously. Indeed, it is noteworthy in this respect, as the

Government pointed out, that in his report the Local Ombudsman

expressed the opinion that it was "very unlikely indeed that the

decision would have been different even if the [local authority] had

acted more quickly" (see the principal judgment, p. 55, § 31).

13. On the other hand, the Court does not feel able to conclude

that, as the Government submitted, a speedier conclusion of the

proceedings in question could not have genuinely benefited the

applicant in practical terms.

It is true that she allowed some seventeen months to elapse after the

termination of her access to A (June 1977) before seeking its

re-establishment by the High Court (November 1978). However, not only

did she have a valid reason for this delay - namely, her desire to

show that her health had improved and that she had a stable home - but

also in November 1978 the child had not yet been placed for adoption,

so that the process of "bonding" between her and her foster parents

had not then begun (see the principal judgment, p. 50, §§ 18-19).

What is more problematical is that, of the various factors that

contributed to the length of the proceedings, it was only the delay on

the part of the local authority in filing its evidence which the

European Court found to be open to criticism (ibid., p. 62, § 84).

However, but for this delay - without which that evidence would have

been filed before A was placed for adoption in March 1979 (ibid.,

pp. 50-51, §§ 18-21) -, the subsequent proceedings might have

developed differently and been concluded earlier. The period during

which "bonding" between A and her foster parents had been taking place

would thus have been considerably reduced. The High Court, which had

to base its decision on the facts as at the date of its hearing, took

the view that the applicant's case had been "seriously prejudiced" by

the delay in question (ibid., p. 53, § 28). And, notwithstanding the

applicant's earlier history, on which the Government relied, a

particular feature of this case was the steady improvement in her

condition following her meeting Mr. H in May 1977 and her subsequent

marriage to him in October 1977 (ibid., pp. 49, 50 and 53, §§ 14, 17

and 28). In these circumstances, it cannot, in the Court's opinion,

be excluded that a prompter conclusion of the proceedings might have

resulted in a different outcome.

To this extent the applicant may therefore be said to have suffered

some loss of real opportunities, warranting monetary compensation.

14. In addition to the foregoing, the fact that the proceedings

instituted by the applicant were drawn out for as long as two years

and seven months, and that she saw her chances of success becoming

more remote as time went by, must, in the Court's view, have left her

with a feeling of frustration and helplessness, similarly warranting

monetary compensation.

15. None of the factors cited in paragraphs 13 and 14 above lends

itself to precise quantification. Making an assessment on an

equitable basis, as is required by Article 50 (art. 50), the Court

awards the applicant £12,000 for damage sustained.

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 £12,000 (twelve 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.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar