Remainder inadmissible;No violation of Art. 8

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The first applicant , R , was born in DATE . The second applicant , H , was born in DATE . They live in GPE . The applicants are the biological parents of a child , N , who was born in DATE . The first applicant , R , is the child ’s father ; the second applicant , H , is her mother . The second applicant has CARDINAL other children , HH , P and T , who were born in DATE , DATE and DATE respectively . Full care orders were made in respect of HH , P and T in DATE . Another child , O , was born to the applicants in DATE and has remained in their care .

The second applicant has a long history of alcohol problems and has experienced various periods of stability and sobriety followed by periods of abuse of alcohol , including when she was pregnant with N.

When N was born , she was removed at birth and the second applicant was admitted to an addictions centre where she remained for DATE . Both applicants attended a parenting centre with N in DATE for assessment purposes : they take the view that the assessment reports were positive .

In DATE , the applicants were allowed to take N home . T was returned to the applicants’ care in DATE . Further reports were also positive until DATE when HH and P came home for contact visits and then refused to leave . The second applicant started drinking again . She asked for help and N was removed by social workers from ORG ( “ the Trust ” ) on a voluntary basis and placed with foster carers .

HH , T and P were also removed to Trust accommodation . HH was eventually returned to the second applicant in DATE , by which time she was DATE , and P insisted on leaving foster care and returning to the second applicant in DATE , when he was DATE . T was returned to the applicants in DATE ( see paragraph CARDINAL below ) .

On or DATE , the ORG applied for a care order in respect of ORG The care plan , which was submitted by ORG with its application for the care order , envisaged that N would remain in the care of short - term foster parents pending an application to ORG to free her for adoption . On DATE , the ORG was granted an interim care order in respect of N.

On DATE , at a “ Looking after children ” ( ORG ) review attended by the applicants , the ORG decided that ORG case should be referred to ORG . On DATE , ORG decided to refer the case to ORG . ORG did not make any recommendations on adoption at this stage but recommended that the care plan should be made more explicit and the second applicant , who had stopped drinking at this time , be monitored to see if she remained sober . It referred the matter of the care plan back to the ORG review . On DATE , the ORG referred ORG case to ORG . However , it also decided that a “ kinship assessment ” ( a social work assessment of whether a specific family member can care for a child ) be completed in respect of N ’s maternal grandmother , ORG . That assessment was completed in DATE and concluded that it would not be appropriate for N to be placed with ORG . This was because , in DATE , ORG ’s husband , from whom she was estranged but with whom she continued to live , had been the subject of allegations that he had inappropriately touched one of their daughters . He had also refused to participate in the kinship assessment .

On DATE , ORG applied for a residence order in respect of N and her sister , T.

On DATE , ORG recommended the adoption of ORG

The Trust ’s application for a care order and ORG ’s application for a residence order were heard together by a judge sitting at ORG ( “ the Family Judge ” ) . In those proceedings a number of reports were filed including one prepared by a consultant forensic psychiatrist on the second applicant , which had been commissioned by ORG . The report , dated DATE , identified a series of personality based difficulties , which caused the second applicant ’s alcohol abuse but which were also made worse by it . The psychiatrist was not asked to recommend any particular course of treatment in the report .

In his judgment of DATE , the Family Judge first considered whether it was possible to make no order in favour of either the maternal grandmother or the Trust , the effect of which would be to return N to her parents . In concluding that this was not an option , he found that while the second applicant , when sober , provided adequate and appropriate parenting , he did not believe that on the balance of probabilities she would remain abstinent . The first applicant would not provide adequate protection for N in such an event and there was the further prospect of domestic violence by the first applicant towards the second applicant .

The Family Judge then dismissed the application by ORG for residence orders in respect of N and her sister . He found that there was insufficient evidence to make a finding that ORG ’s husband had committed sexual abuse in DATE but it was of great concern that he had refused to be assessed . ORG , from whom ORG had heard evidence , had not grasped the basic implications of a residence order , particularly that it would entrust N to her care for DATE .

The Family Judge made a full care order in respect of N in favour of the Trust . On the basis of expert evidence recommending CARDINAL DATE face - to - face meetings between N and her parents in the event of her adoption , the judge approved the ORG ’s plan to reduce contact gradually , from DATE with the applicants , once DATE with the whole family and once a month with her siblings only to CARDINAL meeting DATE . The applicants initially sought to appeal against the Family Judge ’s order but withdrew their appeal on DATE when public funding was withdrawn by ORG .

On DATE , the Trust applied to ORG for an order freeing N for adoption ( a “ freeing order ” ) and sought to have the need for the ORG agreement dispensed with on the ground that they were withholding their agreement unreasonably . The application was heard over DATE between DATE and DATE . It appears from the domestic decisions as submitted by the applicants , in particular the dissenting opinion of ORG ( see paragraphs CARDINAL–CARDINAL below ) , that the ORG made no attempts to find prospective adopters in that time since it was not its policy to do so until a freeing order had been made . The ORG in their submissions to this ORG considered that these findings overlooked the initial steps which had been taken to find suitable carers for N , such as contacting a voluntary adoption agency ( see paragraph CARDINAL below ) .

The High Court heard expert evidence from a professor of social work , Professor PERSON , on DATE . On DATE , Professor PERSON stated that he disagreed with the ORG ’s plans for no contact between the applicants and N after the adoption . There could be no question of post - adoption contact if the applicants did not support the adoption but their opposition to adoption did not mean that they would undermine the placement if an order was made . He further stated that the applicants had to be judged after the court had made its decision .

Before Professor PERSON could finish his evidence , a senior social worker gave evidence for the Trust stating that the Trust had initially been opposed to direct post - adoption contact because of the GPE hostility but , having heard Professor Triseliotis’ evidence , they were prepared to look for prospective adopters who would meet ORG need for continued contact with the applicants . However , they could not guarantee finding such adopters or that contact would be workable .

When giving evidence for the second time , Professor PERSON accepted that if every effort was made over DATE to find suitable adopters who would agree to direct contact , but none could be found , he would “ go for adoption but with some regret that an adoptive parent would be so exclusive ” .

In its judgment of CARDINAL DATE , ORG concluded that adoption was in ORG best interests and made a freeing order . The trial judge ( Mr Justice PERSON ) accepted that there was no realistic possibility of the second applicant remaining abstinent from alcohol during ORG childhood . He further found that the second applicant had clearly attempted to minimise domestic violence in the household and regarded it as “ another instance where she fails to prioritise the needs of her children over those of herself or her partner ” . The trial judge also rejected the applicants’ submission that the ORG should have diagnosed the second applicant ’s personality difficulties sooner . He stated :

“ [ The second applicant ] can not place the burden of her problems on to the Trust . She has her own responsibilities and if she wished to address this problem of drinking she can not leave it entirely up to ORG Failure to ascertain the root of her problem lies partly at least with her own actions . The welfare of this child can not be sacrificed to the need to address her problems of alcohol . Moreover I am satisfied that the Trust had taken all reasonable steps to afford her professional and expert help and it can not be blamed if only now yet another alternative remedy is postulated . I believe it is too long a timescale to address all these problems at this stage and I am not prepared to endanger the future of N simply to meet the lateness of the prognosis of H ’s problems . ”

After considering the relevant case - law of this ORG and the domestic courts on adoption and LAW , the trial judge stated that he was satisfied that adoption was in the best interests of N. He then considered whether the Trust had satisfied him on the balance of probabilities that the applicants were unreasonably withholding their consent . He rejected the ORG argument that a reasonable parent would be justified in withholding consent until they could be assured that any prospective adoptive parents would agree to post - adoption contact and also rejected their argument that the ORG should have taken steps to identify such a couple before making the application for a freeing order . He stated :

“ I am satisfied that the need for adoption is so pressing that whilst it would be preferable that some limited measure of post adoption contact should be established if possible nonetheless adoption must proceed even if this can not be achieved . Otherwise both parents could operate a veto on adoption by behaving so badly that no one would agree to post adoption contact .... I share the view of Professor PERSON that if all reasonable efforts to find a couple who will embrace post adoption contact fail then the circumstances of the historical events of the past still make it imperative that the adoption should proceed . Any reasonable parent in my view would readily understand that . This is not inconsistent with LAW ORG but rather a careful consideration of the rights of this child as well as the rights of the adults . ”

Having reached the conclusion that the applicants’ consent could be dispensed with on the ground that it was unreasonably withheld , the trial judge added :

“ Whilst it is inappropriate for me to look at the question of contact post adoption until this child comes before the court for adoption , I feel it is appropriate that I should say that I accept entirely the view expressed by Professor PERSON that it is important that if at all possible this child should have the benefit of continued contact with both parents at the frequency suggested by Professor PERSON . . . . If these birth parents can accept the new position and help this child to settle down without undermining the placement , I believe this can be of great assistance to this child now and in the future . . . . I also sincerely hope that the prospective adoptive parents when they are chosen will be carefully counselled as to the views of Professor PERSON concerning the benefits of post adoption contact but obviously if after all reasonable efforts have been made by ORG for DATE , and no such couple can be found , then I am of the opinion that the benefits of adoption will outweigh the benefits of post adoption contact .... I am satisfied that a freeing order in this case is a proportionate response to the legitimate aim of ensuring the welfare of this child . I have sought to balance the LAW both parents , reminded myself that this draconian remedy should only be resorted to where no alternative avenue is open and where the interest of the child clearly requires it . ”

The applicants appealed to ORG in GPE . On DATE , ORG refused the appeal by a majority . All CARDINAL judges expressed disagreement with certain of the trial judge ’s findings , in particular his view that there was no hope of the mother remaining abstinent . However , the majority did not consider that he was plainly wrong in finding that freeing N for adoption was in her interest .

Lord Justice PERSON considered first the factual basis for the trial judge ’s order . He noted that a number of allegations of domestic violence by the first applicant had been withdrawn by the second applicant and HH but found it served no purpose to re - open the Family Judge ’s findings ( see paragraphs CARDINAL–CARDINAL above ) . He found :

“ ORG is not on the side of N and on the best scenario of H ’s progress , N would be DATE before it would be safe to return her to her parents . By that time N would almost certainly be too old to be adopted successfully and although I consider that the probability is that H will not relapse , I am not prepared to take the risk that she will do so under the stresses and strains of coping with [ HH ] and P as she did in DATE . I recognise that she is DATE older and much more mature but the risk of serious harm to N is there and the damage caused to [ HH ] and P is evident . The damage to N if she was returned would be , to quote Professor Tresiliotis : ‘ ORG .

But as I have indicated I do not take the pessimistic view of the judge about H and NORP The birth parents are capable of supporting the bonding of adoptive parents with ORG If this proves wrong , H and R would have only themselves to blame . If a Freeing Order is made , they will need counselling not merely from someone who helps H to understand why she resorted to drink ... Moreover , if there is a relapse , this should not operate as a bar to contact with N , provided that it is supportive . I realise that H and R have been antagonistic to adoption . That is not surprising , especially having regard to their own achievements since DATE . But the Trust must realise that if a Freeing Order is made , their hostility may change , not least as they will otherwise lose all contact with ORG

Furthermore , if a Freeing Order is made the Trust must be shown to the judge dealing with the adoption as having made every effort to find prospective adoptive parents who will be prepared to permit supportive contact by the birth parents in the interests of N , as Professor Tresiliotis has urged .

In order to ensure that the ORG fulfils its obligations it has been agreed with PERSON , who is the Family Judge , that if a Freeing Order is made , ORG should be the judge who deals with the adoption . Hopefully , it will put pressure on the Trust to meet their obligations . The judge himself indicated his concern that direct contact should be available to H and R if they prove supportive to adopting parents . ”

Lord Justice PERSON further found that the Trust should have been required to provide evidence as to the availability of prospective adopting parents who would permit direct contact with supportive birth parents . Nevertheless , he upheld the view of the trial judge that reasonable parents would accept that if prospective adopters could not be found who would permit contact , N should still be adopted . On LAW , he concluded :

“ I am satisfied that the judge gave careful consideration to the LAW and R and N ’s siblings . I bear in mind the steps taken by the Trust to rehabilitate H and R after the birth of N and the fact that she was placed with them in DATE and only taken away in DATE when H had a relapse . The decision to make a freeing order is the most drastic step which can be taken in breaking the bond of parent and child . I have read all the relevant authorities which were drawn to our attention . I have disagreed with the judge ’s assessment of a number of important matters . But I am satisfied that a freeing order is a proportionate response to the legitimate aim of ensuring the welfare of N , bearing in mind her rights and the rights of H and R and ORG siblings under LAW .

On a freeing order a court can not attach conditions . I have made clear my views on the issue of contact post - adoption . It will be a matter for the judge at the adoption hearing to determine whether suitable adoptive parents have been found . Consensual arrangements for contact between adopting and birth parents are much to be preferred . ”

Lord Justice PERSON , concurring , was not in full agreement with the trial judge either in his assessment of the expert evidence as giving no realistic possibility of the second applicant continuing to remain abstinent during ORG childhood or in his view that the prospects of success of the course of treatment that was proposed were not good . However , he was satisfied that the pressing needs of N could not wait to be met until H had successfully completed the course of treatment . He also found that when the question of contact was a finely balanced judgment , the issue was whether the advantages of adoption to the welfare of N were sufficiently strong as to justify overriding the views of the applicants . The trial judge had been satisfied that the need for adoption was so pressing that whilst it would be preferable to have some limited measure of post - adoption contact , nonetheless adoption had to proceed even if this could not be achieved . The reasonable parent , faced with this decision and with the welfare of N in mind , would be driven to this conclusion .

Lord Justice PERSON , dissenting , agreed with the other members of this court that it was in the best interests of N that she should be freed for adoption . However , he considered that the trial judge was incorrect in holding that the applicants were withholding their consent unreasonably . The evidence of Professor PERSON meant it was a finely balanced judgment as to whether to free N for adoption and there had been a “ very marked improvement ” in the personal circumstances of the applicants prior to the High Court judgment . The second applicant had managed to stay off alcohol since DATE which was a very considerable achievement for one who had had such a severe alcohol problem . N had strong attachments to both of her parents , particularly her mother , both of whom faithfully attended contact meetings with N.

The applicants appealed to ORG . On DATE , ORG ( by a majority of CARDINAL , ORG of GPE dissenting ) rejected the ORG appeal . Lord PERSON ( with whom Lord PERSON of GPE , Lord PERSON of PERSON and Lord PERSON of Gestingthorpe agreed ) stated that he agreed with the trial judge that the ORG ’s response had been proportionate in the pursuit of the legitimate aim of protecting the welfare and interests of the child . In response to the ORG argument that the trial judge could not correctly hold that the withholding of agreement was unreasonable when it was not known whether post - adoption contact could be arranged , Lord PERSON stated :

“ The availability of post - adoption contact is , of course , a relevant factor to be taken into account in deciding whether to dispense with the GPE agreement and make a freeing order , and the necessity to ascertain what and how much contact can be arranged will vary from case to case . But evidence on that topic can not be regarded as a condition which is in law a sine qua non , requiring to be satisfied before the judge can proceed .... [ Counsel for H. , the second applicant ] put the argument , as I understand his submissions , in a modified form , that the availability of post - adoption contact is a factor which ranks so high in importance that unless there is sufficient evidence about it before him the judge can not be said to have had regard to all the necessary factors in reaching a decision on dispensing with agreement and freeing for adoption . This again appears to me to be elevating a matter of evidence into a matter of law . It is for the judge to have regard to the availability of contact in coming to his decision , but so long as he has evidence on which he can properly make his decision and he has not misdirected himself or been in error in respect of other factors to which he should have regard , his decision will be sustainable unless he is ‘ plainly FAC . ”

Lord PERSON then reviewed the relevant domestic case - law on reasonableness , including the decision in Re C that a reasonable parent pays regard to the welfare of his or her child ( see paragraph CARDINAL below ) . He concluded that the trial judge had appropriately applied this case - law , and observed :

“ [ The trial judge ] took quite a strong line in coming to and expressing his conclusions , but in my view these were properly inside the bounds within which his determination must be allowed to prevail . There was considerable evidence before him of the risks that H might relapse and of the unhappy consequences which that would have for N if she were living with her . It was a matter of judgment whether these circumstances were such that the hypothetical reasonable parents would give their agreement to adoption . The majority of ORG were of the opinion that it was a finely balanced judgment , but that the judge ’s decision should nevertheless stand , and in that I think that they were right . ”

ORG of GPE found that any reasonable parent would be entitled to place great weight on the views of Professor PERSON and were entitled to see what efforts were made to find the right sort of placement for N before giving their consent . In taking the view that the applicants could frustrate an adoption by behaving so badly that no - one would agree to post - adoption contact , the trial judge had placed undue weight on an irrelevant consideration when deciding that the parents were unreasonably withholding their consent . The evidence was very clear that contact would only be in the best interests of the child if the applicants behaved well and did not use it to undermine the placement . The applicants had not sought to use their contact to undermine N ’s placement . Nor , despite the view which he had formed of the desirability of post adoption contact , did the trial judge consider whether the court could , at that stage , promote this , for example by preserving the GPE position after a freeing order .

ORG also observed :

“ It is not enough for the court to decide in a vacuum whether ‘ adoption’ is in the best interests of the child . It must decide what sort of adoption will best serve her interests . If the court takes the view that some form of open adoption will be best , then it will have to take that into account in deciding whether it will accord with its most important consideration , the welfare of the child , to make an order freeing the child for adoption before there is any evidence available of the efforts made to secure the right sort of adoptive placement and to prepare both families for it . The court may , of course , take the view that the need to free the child for adoption is so pressing that this should be done even if it is not yet known whether an open adoption will be possible . But the need to free the child for adoption is different from the need for the child to be adopted . It may be premature to free a child for adoption even though it would not be premature to make an adoption order . ”

She further considered that adoption practice in GPE laboured under CARDINAL misconceptions . The first was that that the search for prospective adopters should not begin until the child has been freed . The second was that it was not possible to run proceedings , whether for adoption or for freeing , in such a way that the parents and prospective adopters were able to hear and to challenge one another ’s evidence . The third was that it was not possible to consider the issue of post adoption contact until the adoption application itself . A judge hearing a freeing application could not make an order about contact after the adoption but that did not mean that the issue of post adoption contact was not relevant to whether or not the child should be freed for adoption .

In considering LAW she stated :

“ There is , so far as the parties to this case are aware , no NORP jurisprudence questioning the principle of freeing for adoption , or indeed compulsory adoption generally . GPE is unusual amongst members of ORG in permitting the total severance of family ties without parental consent . ( Professor PERSON thought that only GPE and perhaps one other NORP country allowed this . ) It is , of course , the most draconian interference with family life possible . That is not to say that it can never be justified in the interests of the child . ORG has said that where the interests of the child and the interests of the adults conflict , the interests of the child must prevail : eg PERSON v The GPE [ DATE ] CARDINAL FLR CARDINAL , para CARDINAL . But it can be expected that ORG would scrutinise the relevance and sufficiency of the reasons given for such a drastic interference with the same intensity with which it has scrutinised severance decisions in other care cases : see , in particular , P , C and S v GPE [ DATE ] CARDINAL FLR CARDINAL , para . CARDINAL . The margin of appreciation accorded to the national authorities is correspondingly reduced . In a freeing application , the question must be whether it is necessary and proportionate to sever the links with the family of birth if a new family has not yet been identified . ”

The Trust matched N with suitable prospective adopters in DATE . By letter dated DATE , the Trust informed the applicants that ORG prospective adoptive parents had lodged an application for an adoption order in ORG . On DATE , the applicants wrote to the High Court opposing the granting of the order .

On DATE , by direction of ORG , the applicants were joined as respondents in proceedings but their participation was confined to the issues of post - adoption contact and whether the proceedings should be stayed . On DATE , ORG also directed that the proceedings should not be stayed pending the outcome of the present application before this ORG . In the written reasons for its judgment , given on DATE , ORG considered that there were advantages in both biological parents and prospective adopters being involved in further proceedings as to whether there should be post - adoption contact , which the courts in GPE were to consider “ with fresh eyes ” after ORG dissenting judgment .

On DATE , an agreement was reached between the parties concerning post - adoption contact . The post - adoption contact arrangement provided for N to see her birth family CARDINAL times per year , accompanied throughout by her adoptive parents .

The matter was then adjourned for the hearing of the adoption application . Since the applicants had only been joined to the proceedings for the purposes of their application for a stay and to be heard in connection with their application for post - adoption contact , they were not permitted to participate further in the proceedings . An adoption order was made on DATE .

The second applicant maintains that , with the exception of CARDINAL relapse in DATE , she has remained sober since DATE . She has received counselling and regularly attends ORG meetings . The Government maintained that she had suffered CARDINAL relapses in DATE . Counselling was also provided after T , H ’s DATE daughter , was taken into foster care on DATE ( see paragraph CARDINAL below ) and when the domestic authorities were so concerned about H ’s mental health that she was offered either inpatient treatment or intensive support from their mental health team .

The applicants and O have contact with N CARDINAL times a year . T , P and HH are permitted to see N once DATE , though the Government have indicated that , when N intimated that she was upset as to the lack of frequency of contact with T , arrangements were reviewed in order to increase contact .

T was returned to the applicant ’s care in DATE , after DATE in foster care . The Government maintain that she spoke to social workers about her need to leave the applicants in DATE and , after she attempted suicide , she was removed to foster care on DATE . After a further suicide attempt , T has been transferred to inpatient psychiatric care . The applicants believe that T ’s mental health difficulties are attributable to ORG adoption . The Government assert that the view of the professionals who are responsible for T ’s care is that the impact of ORG adoption on T has been partly due to the second applicant ’s continuous promotion of her own views on ORG adoption to T and other difficulties in T ’s upbringing .

O remains in the care of the applicants and there have never been any proceedings in respect of him . For DATE , the applicants also provided temporary foster care for the second applicant ’s CARDINAL nieces and her nephew . This arrangement was approved by a different Trust , ORG . The applicants maintain that this Trust was very complimentary of the care they provided . The Government maintain that the Trust responsible for the applicants’ own children did not approve of this temporary foster care and that care in fact ended due to problems in the family .

HH has had CARDINAL children . The second child , L , was made the subject of an interim joint residence order by ORG with care to be shared between the applicants and L ’s paternal grandmother . The applicants maintain that , in making that order , the court would have had regard to L ’s welfare and would have had to assess whether L was at risk by placement with the applicants . The Government maintain that ORG care was assumed by the paternal grandparents in DATE and that the applicants no longer wish to pursue a residence order application for L.

Article CARDINAL ) of the Children ( GPE ) Order DATE ( “ the DATE LAW ) , which provides that , where a court determines any question with respect to the upbringing of a child , the child ’s welfare shall be the court ’s paramount consideration . Article CARDINAL ) requires the court to have regard to the general principle that any delay is likely to prejudice the welfare of the child .

The compatibility of these provisions with LAW was considered in ORG v. ORG [ DATE ] ORG CARDINAL where ORG in GPE , found that , in a case where a newborn baby had been removed from his mother ’s care within DATE of his birth , the need to have the child ’s situation settled should not be allowed to predominate to the extent that the mother ’s rights under LAW were disregarded . The child ’s welfare was paramount but this did not mean that a court should exclude the parent ’s LAW from its consideration . This was applied in ORG v. SN [ DATE ] ORG CARDINAL to a “ freeing order ” ( see LAW below ) . In that case , the mother ’s child was taken from her care DATE after his birth . She underwent therapy for personality and mental health difficulties . ORG found that , had the Trust in that case been fully cognisant of the mother ’s rights under LAW , it should have given her a further opportunity to prove herself through therapy . Despite the progress she had made , at the time of the court ’s judgment her son had been settled with prospective adopters for DATE and thus it was in the child ’s best interest that he should be freed for adoption . In those circumstances , SN was withholding her consent unreasonably .

Article CARDINAL ) of the DATE Order provides that it shall be the duty of every authority , so far as it is consistent with its duty to safeguard and promote the welfare of children who are in need , to promote the upbringing of such children by their families . The equivalent provision for GPE and GPE , section CARDINAL of LAW DATE , has been interpreted in GPE and GPE as creating a strong supposition that it is in the interests of the child to be brought up by his natural parents ( Re W ( A Minor ) ( Residence Order ) [ DATE ] CARDINAL FLR CARDINAL ) . When a child is a baby the assumption is that it should remain with its mother ( Re W ( A ORG ) ( Residence Order ) [ DATE ] CARDINAL ORG CARDINAL .

LAW ) Order DATE ( “ the DATE LAW ) provides :

“ In deciding on any course of action in relation to the adoption of a child , a court or adoption agency shall regard the welfare of the child as the most important consideration and shall—

( a ) have regard to all the circumstances , full consideration being given to—

( i ) the need to be satisfied that adoption , or adoption by a particular person or persons , will be in the best interests of the child ; and

( ii ) the need to safeguard and promote the welfare of the child throughout his childhood ; and

( iii ) the importance of providing the child with a stable and harmonious home ; and

( b ) so far as practicable , first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them , having regard to his age and understanding .

Article CARDINAL of the DATE Order provides that where , on an application by an adoption agency , an authorised court is satisfied in the case of each parent or guardian of a child that his agreement to the making of an adoption order should be dispensed with on a ground specified in LAW ) of the LAW , the court shall make an order declaring the child free for adoption . The grounds in Article PERSON ) include when the parent or guardian is withholding his agreement unreasonably .

In determining whether the parent is withholding his agreement unreasonably , the court must apply an objective test . In Re W ( an infant ) [ DATE ] A.C. CARDINAL , it was held by ORG that although welfare of the child was the test per se , the fact that a reasonable parent does pay regard to the welfare of his child must enter into the question of reasonableness as a relevant factor .

In Re C ( A Minor ) ( Adoption : Parental Agreement : Contact ) [ DATE ] FLR CARDINAL it was held by ORG in GPE and GPE that reasonableness could be determined by the judge asking himself “ whether , having regard to the evidence and applying the current values of our society , the advantages of adoption for the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent or parents . ”

In Re P ( Adoption : Freeing Order ) [ DATE ] CARDINAL FLR CARDINAL it was held that , when deciding whether to make a freeing order when there is no guarantee of post - adoption contact , it was appropriate for a judge to decide : ( i ) to make no freeing order and decide whether to dispense with consent at the later stage of an application for an adoption order ; ( ii ) to make an order because adoption was more important than contact ; or ( iii ) to decide that contact was so important that , if post - adoption contact was not possible , long - term foster care was appropriate and thus that no freeing order should be made .

Guidance by ORG and GPE that prospective adopters be identified before the date of the final care hearing was endorsed by ORG in GPE in ORG and T ( freeing order application ) [ DATE ] NIFam CARDINAL .

Article CARDINAL(CARDINAL ) of the DATE Order provides that no application shall be made unless the child is in the care of an adoption agency and the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption . An adoption agency may be a ORG . By DATE ) read with LAW , such a “ freeing order ” acts to extinguish the parental responsibility of the parents . Rule CARDINALA.CARDINAL(CARDINAL ) of LAW ( GPE ) DATE ( “ the DATE Rules ” ) requires that the respondents to an application for a freeing order shall include , inter alia , each parent or guardian of the child .

LAW provides for an adoption order to be made by an authorised court on the application of the adopters . When such an application is made , Rule MONEY ) of the DATE Rules specifies that the respondents shall include each parent or guardian of the child , unless the child is free for adoption . Rule CARDINAL provides that where the child is not free for adoption and the applicant intends to request the court to dispense with the agreement of a parent or guardian of the child , such a request shall be included in the application . The grounds for dispensing with agreement are those contained in Article PERSON ) of the DATE Order . By Rules CARDINALACARDINAL and CARDINAL ) , of the CARDINAL Rules , as respondents the parents are served with notice of any hearing and can attend and be heard on whether the adoption order should be made .

By Article CARDINAL(CARDINAL ) of the DATE Order , the making of an adoption order operates to extinguish the parental responsibility which any person has for the child immediately before the making of the order .

Article PERSON ) and ( CARDINAL ) require a child to live with his or her prospective adopters before an adoption order is made .

DATE . ORG CARDINAL replaced freeing orders in GPE and GPE with placement orders . A placement order can only be made with the consent of the parent or guardian , unless the court considers that consent should be dispensed with ( section CARDINAL ) . In contrast to LAW , a placement order can be made without the need to satisfy the court that it is likely the child will be placed for adoption . There is no requirement that prospective adopters be identified before a placement order is made ( see Re T ( children : placement order ) [ DATE ] EWCA Civ CARDINAL ; ORG ( children ) ( adoption : parental consent ) [ DATE ] EWCA Civ CARDINAL ) .

Placement orders do not terminate parental responsibility until an adoption order is made ( section CARDINAL(CARDINAL ) ) but , if a placement order is made , the biological parents may not oppose the making of an adoption order without the leave of the court . Leave is only given if there has been a change in circumstances since the placement order was made ( section CARDINAL(CARDINAL ) ) .

Similar provisions apply in GPE under LAW ( GPE ) Act DATE .

LAW , GPE , DATE , where relevant , provides as follows :

“ CARDINAL Subject to paragraphs CARDINAL to CARDINAL of this article , an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn :

a the consent of the mother and the father ; or if there is neither father nor mother to consent , the consent of any person or body who is entitled to consent in their place ;

b the consent of the child considered by law as having sufficient understanding ; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be DATE ;

c the consent of the spouse or registered partner of the adopter .

CARDINAL The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent , in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin . The consent must have been given freely , in the required legal form , and expressed or evidenced in writing .

CARDINAL The competent authority shall not dispense with the consent or overrule the refusal to consent of any person or body mentioned in paragraph CARDINAL save on exceptional grounds determined by law . However , the consent of a child who suffers from a disability preventing the expression of a valid consent may be dispensed with .

CARDINAL If the father or mother is not a holder of parental responsibility in respect of the child , or at least of the right to consent to an adoption , the law may provide that it shall not be necessary to obtain his or her consent ... ”


The applicant is an NORP national , born in DATE and living in GPE . She is represented before the Court by Mr PERSON , a lawyer practising in GPE .

PERSON was the owner of an apartment in GPE , which he had let to GPE

In a writ served on the tenant on DATE , PERSON communicated his intention to terminate the lease and summoned the tenant to appear before ORG . By a decision of DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant became the owner of the apartment .

On DATE , she made a statutory declaration that she urgently required the premises as accommodation for herself .

On DATE , she served notice on the tenant requiring him to vacate the premises .

On DATE , she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On DATE , the applicant recovered possession of the apartment .


Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 2;Violation of Art. 2 (effective investigation);Violation of Art. 13;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Not necessary to examine Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Mr Eşref Yaşa , a NORP citizen , was born in DATE and currently lives in ORG . His uncle , ORG , was born in DATE and also lived in GPE . He was killed on DATE .

The applicant lodged an application with the ORG “ on his own behalf and on behalf of his deceased uncle ” ( see paragraph CARDINAL below ) , in which he complained that they had been victims of armed attacks because they sold the newspaper PERSON . The attacks were part of a campaign orchestrated against that and other pro - NORP newspapers with the connivance or even the direct participation of ORG agents .

Some of the events that led to the application being made are disputed .

At the material time the applicant rented a newspaper kiosk , known as GPE , in the town of ORG . In DATE he began to receive death threats from the police because he sold certain newspapers , in particular the pro - NORP paper PERSON .

In TIME of CARDINAL DATE the applicant ’s kiosk was set on fire and destroyed . The applicant estimated the damage at MONEY .

DATE before that incident , the applicant had been visited by QUANTITY police officers , one of whom was PERSON of ORG . The applicant did not know the other officer ’s name . They had threatened to burn down his kiosk because of the newspapers he sold .

After the applicant ’s kiosk had been burnt down , other newsagents had decided to stage a DATE protest strike and refused to sell anything .

At TIME on DATE shots had been fired at the applicant while he was in NORP Street in the LOC of ORG . He had been riding his bicycle from home to the kiosk with his son PERSON on the back , when he noticed CARDINAL suspicious - looking men , CARDINAL tall and the other of average height , aged DATE . Fearing their intentions were hostile , the applicant had attempted to steer his bicycle away but had been struck by a taxi . He and his son had fallen to the ground . At that moment one of the CARDINAL men had started to shoot at him . In self - defence , the applicant had drawn a pistol from his waist and fired QUANTITY shots back , none of which had hit the QUANTITY men . The applicant , however , had been hit by CARDINAL bullets fired by the assailant . CARDINAL had grazed his back and one his right leg . One had entered his right arm and one his left wrist . CARDINAL bullet had lodged between the forefinger and middle finger of his left hand and one had gone through his right buttock into his abdomen .

The applicant was taken by taxi to ORG . He had asked the driver to deliver his pistol to one of his relatives . The driver had given it instead to another taxi driver who knew the applicant ’s kiosk . He had put the pistol in a scrap - box tin under the counter of the kiosk .

The operation to remove the bullets from the applicant ’s body , which was performed in the intensive care unit of ORG , was held up for TIME by the police . His relatives were later subjected to insults and received death threats at the hospital .

The applicant spent DATE in hospital . He still had health problems as a result of the attack . He suffered pain in his left arm and several fingers of his left hand and there was continuing discomfort from the scars . In addition , he had stomach pains caused by an infection contracted following the operation .

While in hospital the applicant had made a statement to the police in which he claimed that his assailants were police officers . At no stage had the public prosecutor ’s office asked him to make a statement about the attack .

After coming out of hospital he was prosecuted for carrying an unlicensed firearm . On DATE he was convicted and sentenced to DATE imprisonment , later converted by the court to a fine of MONEY , to be paid in instalments DATE . His appeal against the conviction and sentence was dismissed .

At TIME on DATE the applicant ’s uncle , ORG , who had been running the applicant ’s kiosk since DATE , was shot in the head and killed by an unknown assailant while walking along FAC in GPE . ORG DATE son , PERSON , was the only witness to the shooting . On DATE , the applicant was arrested , assaulted and threatened with death by the police , who told him that they had carried out the shooting and that he had been the intended target .

On DATE the applicant ’s younger brother , PERSON , aged DATE , who had been looking after the kiosk following the attacks on the applicant and his uncle , was killed by an unknown assailant near his home . Another of the applicant ’s brothers , PERSON , aged DATE , was seriously injured during the attack .

Following that attack the applicant was forced to sell his business because there was no one left in his family to manage the kiosk .

NORP The applicant alleged that he and his uncle had been shot because of their involvement in the distribution of the newspaper PERSON . The incidents had been part of a campaign of persecution and attacks against people engaged in the publication and distribution of that and other pro - NORP newspapers . To support that claim , the applicant referred to the following incidents .

Publication of the Özgür Gündem had ceased in DATE as a result of a wave of prosecutions brought against it by the ORG . Since first appearing in DATE , the newspaper had been the subject of several prosecutions , confiscation orders and temporary closure orders . While the newspaper had never been officially banned from sale , there had been periods when confiscation and closure orders had affected its publication and distribution . ORG , the successor to ORG , was forced to close in DATE and ORG , which replaced it , ceased publication in DATE .

The applicant has supplied lists detailing cases of attacks on , illtreatment or detention of and threats against staff and distributors of the PERSON and similar newspapers in DATE , DATE and DATE . He maintained that those incidents clearly established that there was a pattern of targeting persons working for the PERSON .

NORP The applicant stated that CARDINAL journalists , including PERSON DATE , working for the Özgür Gündem had been killed , while others had been injured in attacks . Numerous other journalists had been detained and , in some instances , subjected to ill - treatment .

There had been numerous prosecutions of the owners , editors and journalists of the PERSON on the basis , inter alia , of the provision under LAW prohibiting propaganda against the indivisible unity of the ORG . In addition , PERSON , CARDINAL of the principal financiers of ORG , was murdered ( see paragraph CARDINAL below ) .

The applicant stated that several newspaper kiosks were attacked for selling the Özgür Gündem . In addition , on DATE the headquarters of ORG in GPE and its office in GPE were bombed . CARDINAL person was killed and CARDINAL injured .

There had also been numerous incidents in which persons and vehicles involved in the distribution of the Özgür Gündem had been attacked . The applicant stated that CARDINAL vendors or distributors have been killed , including ORG ( see paragraph CARDINAL above ) and FAC ( see paragraph CARDINAL above ) . Several others had been beaten or severely injured , while many more had been threatened with violence if they did not stop selling or distributing the newspaper .

To support his assertions the applicant referred to various publications containing information and expressing concerns about infringements of freedom of expression in GPE , including , “ What happened to the press in DATE ” , published by ORG , extracts from DATE Info - Türk ( E.CARDINAL - CARDINAL , E.CARDINAL - CARDINAL , CARDINAL ) , ORG for GPE DATE and “ L’intimidation – rapport sur les meurtres de journalistes et les pressions sur la presse turque ” by Reporters sans frontières ( DATE ) .

The Government confirmed that the applicant had been shot and his uncle killed on DATE and DATE respectively . In their memorial they referred to the investigations of the public prosecutors , which commenced on DATE as the attacks ( see paragraphs CARDINAL and CARDINAL below ) . Those investigations , which were being conducted in accordance with the applicable provisions of LAW ( see paragraph CARDINAL below ) , were still pending .

The Government maintained that there was no evidence to support the applicant ’s contention that members of the security forces were responsible for the attacks on the applicant and his uncle . In addition , they denied all allegations of ill - treatment by the ORG authorities . They said that the applicant had never officially complained to the relevant authorities that his attackers were agents of the ORG . Moreover , there was no evidence to support the applicant ’s allegation that a police officer had told him that it was in fact he who had been the target of his uncle ’s killers .

The Government refuted any allegation that there had been official intimidation of persons in any way connected with the sale of newspapers . They said that such newspapers were sold in CARDINAL of kiosks and were freely available throughout GPE . The Government acknowledged that on certain occasions particular editions of those newspapers had been confiscated ( see paragraph CARDINAL above ) . However , the measures , which were neither arbitrary nor repressive , were always made on the basis of judicial decisions .

Noting that the allegations were of a width and character that would not be easily amenable to clarification from oral testimony , the ORG decided , after consulting the parties , to examine the allegations on the basis of the written materials submitted by the parties . The findings of the ORG can be summarised as follows .

The Commission observed that the facts at the heart of the application were not disputed . The applicant was shot at and seriously injured in an attack by CARDINAL men on DATE . His uncle , ORG , was shot and killed by a gunman on DATE .

The Commission found that there was no evidence before it that proved beyond reasonable doubt that agents of the security forces or police were involved in the shooting of either the applicant or his uncle . It also found that the applicant ’s complaints concerning police obstruction at the hospital and ill - treatment in custody following his uncle ’s funeral had not been substantiated . However , having regard to “ appeals made for protection and protests made by Mr PERSON , [ a ] journalist and [ the ] owner of ORG , at ministerial level and to the considerable number of attacks on persons connected with that newspaper ” , the ORG found that the ORG had or ought to have been aware that those involved in its publication and distribution feared that they were falling victim to a concerted campaign tolerated , if not approved , by ORG agents ( see paragraph ORG report ) .

According to a police report dated DATE the shooting took place at TIME in NORP Street . CARDINAL empty cartridges and two bullet shells were taken for forensic examination , and a plan of the scene was drawn up . On DATE of the shooting the police recovered the applicant ’s pistol from his kiosk . They arrested LOC at the kiosk and CARDINAL taxi drivers , CARDINAL being the driver to whom the applicant had entrusted the pistol and the other being the driver who had taken it to the kiosk ( see paragraph CARDINAL above ) . The police had then taken detailed statements from them .

In response to an enquiry of DATE from the security police , the hospital doctor recorded the following injuries to the applicant : CARDINAL bullet entry to the left gluteal region , CARDINAL bullet entry and exit to the middle left forearm , CARDINAL bullet scratch to the left index finger , CARDINAL bullet entry and exit on the middle front upper right arm between the elbow and axillary region and a bullet track slightly below the skin tissue , surfacing under the arm .

On DATE , in the presence of his lawyer , the applicant had given a statement to the police in which he had described the attack . He stated that the assailants had intended to murder him because he ran a newspaper kiosk that mainly sold left - wing newspapers . He explained that , as there had been previous attacks on newsagents selling such papers , he had bought the pistol and had been carrying it with him for DATE before the attack ( see paragraph CARDINAL above ) .

A summary incident report dated DATE on the shooting , entitled “ crime record no . CARDINAL/C-CARDINAL ” , referred to the applicant as an injured suspect and stated that the other ( unidentified ) suspects were at large .

On DATE and DATE the ORG public prosecutor had requested the relevant security branch to investigate the attack on the applicant and to apprehend the suspects . On DATE the public prosecutor had also requested that ORG be kept informed of the progress of the inquiries DATE until the end of the statutory prescription period , namely DATE .

An expert ballistics report from the ORG regional criminal police laboratory dated DATE indicated that the cartridges found by the police at the scene of the shooting showed traces and marks identical to those in the shooting of CARDINAL other people in GPE on DATE and CARDINAL DATE respectively .

A preliminary investigation file no . DATE had been opened into the killing of FAC . According to an autopsy report dated DATE , CARDINAL bullet entry wounds had been found on ORG body , CARDINAL of which were fatal .

Following the shooting , the police had prepared a sketch of the scene of the incident and had taken statements on DATE from CARDINAL witnesses . According to PERSON , after hearing the shots , he had seen someone , whom he was unable to identify , running behind the people gathering in the street . PERSON , who ran a stall in the street , had heard but not seen the shooting . On reaching the scene , he had helped ORG , who was lying on the ground , get into a taxi so that he could be taken to hospital .

The record made by the police on questioning ORG son had indicated that although the boy had seen the assailant he had not recognised him . He said that the assailant – aged DATE and QUANTITY tall – had continued to fire at his father even though the latter had fallen to the ground after the first shot . The attacker had then made his escape .

An expert ballistics report dated DATE indicated that the bullet shells retrieved from the scene were too deformed for useful examination .

No other information concerning any investigative measures taken in relation to those incidents was included with the documents from the investigation file provided to the ORG . However , appended to the Government ’s written observations before the ORG was a letter which the public prosecutor attached to ORG had sent on DATE to the Minister of ORG in which he said :

“ [ The ] allegation ... is wholly untrue . There are no gunmen working for the ORG in south - east GPE . In [ that ] region there are armed conflicts between armed organisations and conflicts arising out of the settling of scores within such organisations . The allegation that these incidents are attributable to the ORG and gunmen acting on its behalf is outrageous ... ”

Before the ORG , the applicant has produced a copy of a recent report by ORG within the Prime Minister ’s office . That confidential report ( “ the GPE report ” ) was initially intended to be only for the Prime Minister , who had commissioned it on DATE . After receiving the report in DATE , it would appear that the Prime Minister then made it available to the public , although CARDINAL pages from the body of the report and its appendices were withheld . The report continued to be the centre of attention in GPE while the ORG was considering the case .

The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report . It was intended for information purposes and purported to do no more than describe certain events that had occurred mainly in south - east GPE which tended to confirm the existence of a tripartite relation involving unlawful dealings between political figures , government institutions and clandestine groups .

The report analyses a series of events , such as murders carried out under orders , the killings of well - known figures or supporters of the NORP and deliberate acts by a group of “ informants ” supposedly serving the ORG and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that had been formed as a result , particularly in the drug - trafficking sphere . The passages from the report that concern certain matters affecting radical periodicals distributed in the region are reproduced below .

“ ... In his confession to ORG , ... PERSON ... had stated that PERSON ( page CARDINAL ) would say from time to time that he had planned and procured the murder of PERSON and other partisans from the mafia and the ORG who had been killed in the same way ... The murder of ... PERSON had also been planned and carried out by PERSON ( page CARDINAL ) .

Summary information on the antecedents of PERSON , who was of NORP origin , are set out below ( page CARDINAL ) .

As of DATE he was CARDINAL of the financiers of the newspaper PERSON . ... Although it was obvious who PERSON was and what he did , the ORG was unable to cope with him . Because legal remedies were inadequate the PERSON was blown up with plastic explosives and when PERSON started to set up a new undertaking , when he was expected to submit to the ORG , ORG decided that he should be killed and that decision was carried out ( page CARDINAL ) .

All the relevant ORG bodies were aware of these activities and operations . ... When the characteristics of the individuals killed in the operations in question are examined , the difference between those NORP supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms . ... The sole disagreement we have with what was done relates to the form of the procedure and its results . It has been established that there was regret at the murder of PERSON , even among those who approved of all the incidents . It is said that PERSON was not involved in any armed action , that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake . ( Information about these people is to be found in Appendix CARDINAL ) . Other journalists have also been murdered ( page CARDINAL ) . ”

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .

Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or members of the security forces as well as to the public ORG offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor ’s office an offence of which he has become aware in the course of his duty shall be liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by the Law of DATE on the prosecution of civil servants , which restricts the public prosecutor ’s jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local ORG ( for the district or province , depending on the suspect ’s status ) to conduct the preliminary investigation and , consequently , decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the ORG . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of the state of emergency region , the DATE PERSON ( see paragraph DATE above ) also applies to members of the security forces who come under the governor ’s authority .

If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections LAW no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person ’s life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender ’s superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities shall be subject to judicial review …

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG ’s strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people ’s lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Legislative Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL above ) , provides :

“ No criminal , financial or legal liability may be asserted against … the governor of the state of emergency region or provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by LAW , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss ( Articles CARDINAL–CARDINAL ) and non - pecuniary loss ( LAW ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant ’s guilt ( LAW .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative ” act or deed , the civil courts ORG may allow a claim for damages to be made against the official concerned , without prejudice to the victim ’s right to bring an action against the authority on the basis of its joint liability as the official ’s employer ( LAW ) .


Preliminary objection allowed (out of time)

PERSON is a security firm whose headquarters are in GPE .

On DATE PERSON , a former employee , brought proceedings against it in the GPE magistrate ’s court ( pretore ) for unfair dismissal .

At the first hearing , on DATE , the magistrate raised of his own motion the question whether certain legislative provisions were compatible with the constitutional principle of equality between men and women in the field of employment . On DATE he stayed the proceedings pending the decision of ORG ( Article CARDINAL of the Code of Civil Procedure ) .

The Constitutional Court gave judgment on DATE ; the text of its judgment was filed at the registry on DATE .

The plaintiff resumed the proceedings on CARDINAL DATE and they ended on CARDINAL May with a friendly settlement .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

The facts of the case , as submitted by the parties and as they appear from the documents on the file , may be summarised as follows .

The applicant moved to GPE in DATE . She returned to live in GPE in DATE , bringing with her a ORG , which was cleared through customs on DATE . The car was brought into GPE tax free , because the applicant completed a declaration to the effect that she had lived abroad for DATE and that , during this time , she had spent DATE in GPE .

On DATE , the applicant was questioned by the police on suspicion of aggravated tax fraud . On DATE , customs officials temporarily confiscated her car as security . On DATE , ORG , in connection with the criminal proceedings , ordered that it be kept until further notice .

On DATE , ORG ( tullikamari , tullkammaren ) reassessed the circumstances and levied a duty on the car , ordering the applicant to pay customs duty , car tax , value - added tax , and a surcharge on these amounts , to a total of ORG CARDINAL ( ORG CARDINAL ) . It noted that the applicant had not been in possession of the car abroad for the required period of DATE . Also , she had not limited her stays in GPE to DATE allowed during DATE before the move , but had stayed in GPE for a total of DATE . She had informed the customs authorities that she had spent DATE in GPE . The customs office noted that practice regarding DATE allowed was flexible . However , by law , attention had to be paid to the length of and reason for the stays . Holidays and stays in order to prepare for the move were acceptable , but the applicant had also stayed in GPE for her work for DATE at a time , which could not be regarded as an acceptable reason .

On DATE , ORG ( lääninoikeus , länsrätten ) , on an appeal by the applicant , upheld the decision , but reduced the amount payable

On DATE , again on an appeal by the applicant , ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) quashed the previous decisions . It noted that the applicant had lived in GPE from DATE until her move to GPE on DATE and that there had been an acceptable reason for her stays in GPE .

Meanwhile , the public prosecutor had brought charges against the applicant for aggravated tax fraud .

On DATE , ORG ( käräjäoikeus , tingsrätten ) discontinued the confiscation measure and the car was subsequently returned to the applicant .

On DATE , due to ORG decision , ORG rejected the charge for aggravated tax fraud .

On DATE the applicant instituted proceedings against the ORG . Relying on LAW and LAW and alleging that the customs office ’s decision , and as a consequence the confiscation , had been erroneous since they were based on a wrong interpretation of the law , she claimed compensation for various items such as loss of the use of the car , repair costs , depreciation , expenses and so on to a total of some FIM CARDINAL ( EUR CARDINAL,CARDINAL ) .

On DATE , ORG , under LAW , section CARDINAL , of LAW , ordered the ORG to pay the applicant a total of ORG CARDINAL ( EUR CARDINAL ) on the ground that the customs office had failed to observe due thoroughness in examining a case which involved such a large amount of money and was consequently of great importance to the applicant .

On DATE , ORG ( hovioikeus , hovrätten ) quashed ORG decision , exonerating the ORG from any liability . Contrary to ORG , it held that the actions of the customs authorities had met the reasonable requirements set and therefore the ORG was not responsible under LAW for the damage alleged . As to LAW , it found that the applicant had introduced her claims after the statute of limitations had expired and thus too late .

On DATE , ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal .

LAW , section CARDINAL , of LAW ( vahingonkorvauslaki ; skadeståndslagen , Act no . CARDINAL ) provides that a public corporation is vicariously liable for damages for injury or damage caused through an error or negligence in the exercise of public authority . The same liability also applies to other corporations performing a public task under LAW , a LAW or an authorisation given in an LAW . However , the liability of the corporation arises only if the performance of the activity or task , in view of its nature and purpose , has not met the reasonable requirements set .

LAW ( Suomen perustuslaki , ORG grundlag ; Act no . CARDINAL/CARDINAL ) provides that the property of everyone is protected . Provisions on the expropriation of property , for public needs and in consideration of full compensation , are laid down by an Act . DATE ) provides that everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public task has the right to request that the civil servant or other person in charge of a public task be sentenced to a punishment and that the public organisation , official or other person in charge of a public task be held liable for damages , as provided in more detail by an LAW .

In a ORG precedent ( no . CARDINAL:CARDINAL ) it was held that LAW , section CARDINAL(CARDINAL ) , of LAW does not give rise to liability for damages on the sole ground that a decision based on a judicial assessment is subsequently overturned as erroneous following reassessment by an appellate body . In order for a judicial assessment to be considered so wrong as to give rise to liability for damages , regard must be had to various factors , in particular to the nature of the legal provisions , the application of which is the subject of the case . The clarity and unambiguous nature of the provisions is to be assessed , as are the complexity of the case and whether the case leaves room for discretion .

Section CARDINAL of LAW ( tulliverolaki , tullskattelagen ; Act no . CARDINAL/CARDINAL in force at the relevant time ) provided that the private property of a person immigrating to GPE was exempt from duty on the condition that the immigrant had , immediately before the immigration , stayed abroad for DATE continuously . In addition it was required , inter alia , that an imported vehicle had been in the ownership , or in the possession leading to ownership , of the immigrant or his or her spouse or in the immigrant ’s use abroad for DATE prior to the immigration . Exemption from duty was granted when the immigrant had , prior to the immigration , stayed temporarily in GPE in order to look for work or a dwelling or for a reason which , considering his or her circumstances , was deemed compelling , or because of an ordinary holiday or comparable short stay . When applying this provision , the authorities paid attention to both the duration of the immigrant ’s stays and their reason . Although the provision did not explicitly provide for a maximum duration of temporary stays , the authorities took account of the so - called “ DATE rule ” applied in cases of income taxation . Although the wording of the provision did not permit actual work - related visits , short working visits were permitted in practice and were not as such deemed to interrupt the stay abroad .

Section CARDINAL of LAW ( tullilaki , tullagen ; Act no . CARDINAL/CARDINAL ) provides that if customs duties have not been paid or have been paid only in part because the declarant has entirely or in part failed to comply with the obligation to declare goods , or has intentionally or unintentionally provided a defective , misleading or false customs declaration or other information or documents for customs taxation , or if too much duty has been repaid for a similar reason , the relevant customs office shall charge the duty not paid or the duty repaid in excess for the aforementioned reasons ( post - clearance duty ) .

LAW , section DATE , of LAW ( ulosottolaki ; utsökningslagen ; Act no . CARDINAL/CARDINAL in force at the material time ) provided that when a judgment was reversed , the applicant had to cover all damage caused by the implementation of , inter alia , a confiscation . LAW , section DATE , provided that any request for compensation for costs and damage caused by a reversed implementation must be brought within DATE of the date on which the judgment on the matter to which the implementation related gained legal force and the implementation was completed or reversed .


The applicant is an NORP national , living in GPE ( GPE ) . She is the maternal grandmother of the child PERSON , who was born out of wedlock on DATE .

The applicant is represented before the ORG by PERSON , a lawyer practising in PERSON .

On DATE , the ORG ) petitioned the ORG ( LOC ) that the custody of the applicant 's grandchild , PERSON , be withdrawn from the applicant 's daughter and transferred to ORG . The authority submitted that PERSON ' mother did not care for her child , but left it entirely to her son 's grandmother , the applicant , to care for and raise him .

On DATE , the ORG heard the applicant on the question raised by the ORG . She did not object to the withdrawal of her daughter 's parental rights , confirming that her daughter failed to take care of PERSON . The applicant explained that she , herself , would like to continue to take care of her grandchild .

On DATE , the ORG approved of ORG petition pursuant to sections CARDINAL and CARDINALa of LAW ( Allgemeines Bürgerliches Gesetzbuch ) on the ground that PERSON ' well - being was endangered by his mother 's conduct . On DATE , ORG served its decision on , inter alia , the applicant . PERSON was placed with foster - parents on DATE .

On DATE , the applicant requested the ORG to transfer custody of PERSON to her . She alleged shortcomings in the care by the foster - parents and requested that a child - psychologist 's expert opinion be prepared to prove that PERSON ' well - being was better ensured by her than by foster - parents .

In its decision of DATE , the ORG rejected both requests . It relied on ORG report according to which PERSON had adapted well to his foster - parents who took care of his well - being , and that there had been big improvements in his development . The applicant and PERSON ' mother were entitled to visit him . ORG observed that the transfer of custody of PERSON to ORG was res judicata and could only be amended in the case of new relevant developments . However , the applicant had failed to prove that the foster - parents ' care negatively affected her grandchild 's well - being .

On DATE , ORG ( Landgericht ) declared the applicant 's appeal inadmissible to the extent that it concerned ORG decision of DATE , on the ground that this decision had become final . It dismissed the remainder as she had failed to submit any new relevant circumstances .

In these and the following proceedings , the applicant was represented by counsel .

On DATE , the applicant applied anew to the ORG for the custody of her grandchild to be transferred to her . She submitted that in the course of her visits she had gained the impression that PERSON was not well at the foster - parent 's place , although she could not specify reasons therefor . She once again asked for an expert opinion to be prepared in order to prove that both PERSON ' psychological and physical condition had deteriorated since he had been living with his foster - parents .

In its decision of DATE , the ORG dismissed the applicant 's request on the ground that the care and custody of the grandchild could only be changed if this were in the child 's interest . ORG observed , first , that the foster - parents had been frequently checked as a result of the applicant 's continuous complaints , but that there had never been any basis found for the applicant 's charges . According to information provided by a psychologist , PERSON was well established with his foster - parents . The ORG further noted that the child 's physical development did not demonstrate any anomaly or sign of under - nourishment . Therefore , it did not consider it necessary to obtain a medical expert opinion . The ORG also noted that PERSON ' mother , who lives in a little house together with the applicant and her infant daughter , did not connect to PERSON at all when he had visited her .

On DATE , ORG dismissed the applicant 's appeal on the ground that , in the absence of any new relevant information , the applicant 's request was barred because of the binding effect of the judicial ruling of DATE . As regards the procedural complaints that ORG did not obtain a medical and child - psychologist 's expert opinion , ORG referred both to ORG report of DATE and the report of ORG psychologist of DATE , as well as the statements made by PERSON ' foster - parents . From all CARDINAL sources , it followed that PERSON had developed well at his foster - parents ' place . For this reason , ORG held that the absence of an expert opinion did not constitute a procedural defect . The ORG finally observed that , even if the situation at the foster - parents ' place had not been satisfactory , this would not have led to the transfer of custody to PERSON ' mother or grandmother , but only to a change of foster - parents .

As regards the alleged lack of information about the results of ORG investigation , ORG recalled that the right to be heard , pursuant to LAW , was not violated if the parties concerned had had an opportunity to comment in appeal proceedings . ORG observed that the applicant did indeed make use of this possibility .

On DATE , ORG ( Oberster Gerichtshof ) dismissed the applicant 's special appeal on points of law ( außerordentlicher Revisionsrekurs ) . ORG noted that the circumstances had not changed since the final judgment of DATE .