Violation of Art. 8;Violation of Art. 6-1;Just satisfaction reserved

ORG The applicant , a NORP citizen born in DATE , lives in GPE . She was brought up by her father and attended a special school for the mentally abnormal until DATE . Her child P was born on DATE ; she had a second child on DATE and a third on DATE . She was divorced from the father of P on CARDINAL DATE .

ORG DATE before the birth of P , a social worker ’s case conference , at which the applicant was not present or represented , was held at the hospital to consider the expected child ’s interests . The conference had been arranged because ORG of the local authority ( " the ORG " ) was aware of marital difficulties between the applicant and her husband and of possible resultant accommodation problems and was concerned as to her capacity to look after the child . It was concluded that , although she would not deliberately neglect the baby , she might prove incapable of comprehending the baby ’s needs in view of her own intelligence ; intensive support from health visitors and ORG welfare officers was proposed .

ORG After the birth , the applicant and P returned to the matrimonial home . On DATE , a health visitor was called there after the applicant had suffered violence from her husband ; she went , with P , to live with her father .

According to the Government , the applicant returned to the matrimonial home in DATE after a disagreement with her father but went back to his home on DATE as her husband was co - habiting with another woman . The applicant denies that she left her father ’s home during this period , but a social enquiry report prepared in connection with her wardship application ( see paragraph CARDINAL below ) indicates that since she and P could not stay with the husband , who was living with another woman , a place was found for them at a mother and baby home .

On DATE , the social workers concerned decided that the applicant might be able to cope with P if given continuous support by a responsible adult . Since the applicant ’s relationship with her father appeared to be stabilising , ORG for the area where he lived agreed to take over supervision of the family . However , this support was not given as a result of the prolonged illness of the social worker responsible .

ORG On DATE , the applicant returned briefly to her husband but in DATE she formed a relationship with A , with whom she lived for DATE . On DATE , P suffered a non - accidental injury for which , DATE , the applicant admitted responsibility . On DATE , she appeared before a GPE court , pleaded guilty to a charge of assaulting the child and was placed on probation .

ORG Following a report of the last - mentioned incident , the ORG sought and , on DATE , obtained a place of safety order ( see paragraph CARDINAL below ) in respect of P. As a result of the order , the child was admitted to hospital , where the injuries were found to be minor . DATE , following a social workers’ case conference , it was decided that since the applicant had no suitable accommodation P should be discharged from hospital to a foster family whose home was near that of the applicant ’s father , thus permitting her easy and regular access to the child . The ORG envisaged a rapid restoration of P to the applicant ’s care . DATE and DATE , during which time she changed addresses CARDINAL times and led an unsettled lifestyle , the applicant paid CARDINAL visits to the child , but somewhat erratically and without keeping to various arranged appointments .

At a visit on DATE , the applicant ’s father was told by the social worker responsible of the circumstances leading to P ’s placement with the foster parents . He indicated that he was not then prepared to have the applicant back and that he was satisfied that P , who was happy and well cared for , should remain with the foster parents . At that time , he considered that this was the best place for the child , with whom he would not be able to cope because of his job .

ORG Until DATE , P was subject to a series of interim care orders ( see paragraph CARDINAL below ) , obtained by the ORG on DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE .

Following a case conference held on DATE and attended by the social workers responsible for P , it was decided that since the applicant ’s lifestyle and limited contact with the child were impeding the initial plan for their immediate rehabilitation , P should be moved to long - term foster parents living less close to the applicant ’s home . According to the social welfare report , " it was decided that , in [ P ’s ] own interests the child ’s whereabouts should not be so readily available to [ the applicant ] , [ since ] she did not seem to be interested in [ P ] and [ P ’s ] longer term welfare needs seemed most likely to be met by placement with long - term foster parents " . Neither the applicant ( whose whereabouts at the time were probably unknown to the ORG ) nor her father was directly involved in the procedure in which this decision was taken and they were unaware that the case conference was being held . The move was effected on DATE and the foster parents later applied to adopt P.

ORG DATE after the case conference the applicant ’s father expressed the wish to care for P. After extensive efforts , he succeeded in finding the applicant in DATE . She moved back to live with him and he indicated his interest in P ’s future and his preparedness to help the applicant to settle down . According to the social welfare report , " in order to promote possible future rehabilitation , arrangements were made for regular DATE meetings ... between [ P ] and [ P ’s ] natural family " . The first of such visits , between the applicant , her father and P , took place at DATE nursery on DATE and was followed by others on DATE and DATE . However , the visits ceased as a result of a strike by social workers from DATE to DATE , which made visits at the nursery under the supervision of a professional social worker impossible . The Government maintain that the applicant had agreed in advance with the ORG that visits should be so supervised , but she denies this .

ORG The ORG sought and , on DATE , obtained from the local juvenile court a care order ( see paragraph CARDINAL below ) in respect of P. The applicant did not appeal against this decision ( see paragraph CARDINAL below ) . Since the above - mentioned strike was then in progress , it is uncertain how the ORG proposed that the order should be implemented , other than by merely leaving P with the foster parents . In view of the strike no access was possible for the applicant , but the juvenile court had in any event no jurisdiction to decide the question of access , which remained a matter within the discretion of the ORG ( see paragraphs DATE below ) .

ORG In DATE , the applicant was diagnosed as suffering from schizophrenia and treated at a local hospital . She was discharged with her second child , who was born on DATE , but continued to attend as an out - patient until DATE when she was considered to be no longer suffering from the illness .

After the end of the social workers’ strike on DATE , the applicant requested DATE access to P , but this was refused by the ORG as impractical and not in the child ’s best interests . Following a case conference concerning P ’s brother held on DATE , it was agreed that representatives of the ORG should visit the applicant ’s father ’s home to assess the possibility of P returning to live there with the applicant . On DATE , she and her father visited ORG had recommended that such visits should continue on a DATE basis and the second took place on DATE ; on that occasion the applicant ’s father became aggressive and refused to permit the visit to his home envisaged at the DATE case conference .

Following a further case conference held on DATE to review P ’s progress since coming into care , it was decided that the child was doing well with foster parents and that it was impossible to consider any proposal for rehabilitation whilst the applicant ’s father refused to allow the social workers to visit his home . The applicant was not informed in advance of this conference or offered the opportunity to attend it .

ORG On DATE , the juvenile court rejected an application by the applicant for the care order to be discharged ( see paragraph CARDINAL below ) , but recommended an increase in the frequency of her visits to P. Following a case review on DATE , at which the social workers responsible and P ’s foster parents but not the applicant or her father were present , it was decided that the visits should henceforth be at DATE intervals ; the applicant was neither informed in advance of the review nor offered the opportunity to attend it . The last of such visits took place on DATE .

ORG On DATE , the social workers responsible held a statutory review of the case ( see paragraph CARDINAL below ) , which was also attended by professional agencies apart from the social services . The applicant and her father were not present or represented and there is nothing to suggest that they were aware of this meeting until after it took place . Without any prior consultation with the applicant , the meeting decided to terminate her access to P forthwith . According to a social - worker report of CARDINAL DATE , this decision was based upon the fact that prior to the social workers’ dispute there were only vestigial signs of a relationship between the applicant and P , which had not justified an intensive programme of rehabilitation , and that these signs had disappeared when visits resumed in DATE . In addition , there was evidence of strong bonding between P and the long - term foster parents ; they were strong parental figures and the applicant ’s contact with P therefore caused the child confusion . The social enquiry report states :

" When access arrangements were made prior to the decision of CARDINAL DATE P would arrive at DATE Nursery with his foster parents always looking paler than usual , and was quiet , and clinging to the foster mother on arrival . The foster parents would stay in the room until P settled , and occupied with a toy or game , then they would leave the room . [ The applicant ’s father ] would leave the room for TIME so that P and [ the applicant ] could be observed together . The social worker usually would attempt to get P involved in some activity endeavouring to involve [ the applicant ] , as she had difficulty in holding P ’s attention . The social worker did on occasion leave the room so that P and [ the applicant ] could be alone but there was little or no evidence of a meaningful relationship developing . When [ the applicant ’s father ] was in the room he did get a positive response from P. He was able to engage in play activities with P and during these periods P would come to life ... A health visitor from the local clinic would see P after each of these visits to see if [ the child ] was at all distressed by the occasions . It was noticed that P became very clinging to [ the ] foster mother on DATE after each visit . P would wake up in TIME after the visit . On the last occasion of access [ the child ] soiled [ its ] pants on the way home from LOC . This was the first time this had occurred for DATE . "

On DATE , the ORG wrote to the applicant informing her that future access to P would not be permitted , giving as the reason that P had been showing signs of disturbance following visits by her which had proved unsettling .

ORG On DATE , the juvenile court rejected a further application by the applicant to discharge the care order . She lodged an appeal with ORG but this was not ultimately pursued : counsel had advised that ORG , like the juvenile court , had no jurisdiction over the question of access alone but could only consider the wider issue of whether the care order should be revoked ( see paragraph CARDINAL below ) .

ORG Counsel advised that the proper course to have the access question examined was for the applicant to apply for P to be made a ward of court ( see paragraphs DATE and CARDINAL below ) , whereupon ORG would make such order as it thought fit in P ’s best interests . On DATE , the applicant accordingly issued an originating summons in ORG of ORG , pending the hearing of which P became a ward of court . The summons was dismissed - and the wardship thus terminated - on DATE , in the light of the decision in ORG , which had just been heard in the same ORG of ORG . The latter case was then pending in ORG , which gave its decision therein on DATE ( see paragraph CARDINAL below ) .

ORG Following the last - mentioned decision , the applicant obtained , on DATE , a limited legal aid certificate to permit her to seek counsel ’s opinion on the question whether or not there was a judicial remedy available to her to challenge the ORG ’s decision to refuse her access to P. On DATE , counsel advised , after a review of the authorities , that , applying the criteria set out by Lord Greene in ORG , Ltd. v. ORG ( see paragraph CARDINAL below ) , " the answer would be in favour of ORG " . Counsel stated that " [ since that ORG had ] decided that access was not in the interests of [ P ] , ORG would say that they had come to a conclusion so unreasonable that no reasonable ORG could ever have come to it . In these circumstances in my view there is not a scintilla of hope that [ the applicant ] would succeed in obtaining a judicial review " . As a result of this opinion , the applicant ’s legal aid certificate was not extended .

ORG In DATE , P ’s father consented , at the request of the long - term foster parents , to the child ’s adoption by them .

The applicant refused to consent and the foster parents applied to ORG for an order that the refusal be set aside as unreasonable ( see paragraph CARDINAL below ) . After hearing evidence , the judge found as a fact that the applicant had at all times made genuine efforts to re - establish her relationship with P ; further , that when regular access to P was resumed in DATE , the ORG and the applicant " understood and were agreed that rehabilitation between mother and child was to be pursued ... [ the applicant being advised that ] this rehabilitation was clearly bound to be a long and slow process " . Whilst the judge accepted the possible correctness of the view of an educational psychiatrist witness that P ’s welfare was best served by remaining with the prospective adopters , he held , on DATE , that the applicant ’s refusal to consent was not unreasonable .

ORG An appeal by the foster parents against this decision was heard on DATE . ORG granted their request that the application to dispense with the applicant ’s consent to adoption be re - heard : it considered that ORG judge had given inadequate weight to the question whether P ’s welfare did not dictate that a reasonable mother would conclude that adoption , and only adoption , would provide the child with the requisite security .

ORG The matter was re - tried on CARDINAL and DATE , when the judge dispensed with the applicant ’s consent and granted an adoption order in respect of P. The judge approached the case from the point of view that if the applicant should have access to P , then no adoption order should be made ; having reviewed the history of access , the judge concluded that no access should now be granted since it had not been enjoyed by the applicant for such a considerable period and the welfare of P was the first and paramount consideration . The DATE care order in respect of P automatically terminated on his adoption .

ORG In the law of GPE and GPE , there are a number of different and partially co - ordinated procedures for dealing with the welfare of children . Whilst the oldest of these is the wardship jurisdiction of ORG , it has for DATE co - existed with , but not been ousted by , various statutory provisions whereby a child who is at risk may be put into the care of a local authority .

Although the terms are not wholly accurate , the legislation is commonly divided into CARDINAL categories : the first provides for " compulsory care " , by establishing machinery whereby a local authority can obtain a court order committing a child to its care ; the second concerns " voluntary care " , the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts . At any given time , there are CARDINAL children in public care in GPE and GPE , of whom CARDINAL are not living with their parents or a relative .

The statutory provisions have been amended on several occasions and many of them were repealed and replaced by LAW ( " LAW " ) , a consolidating measure the greater part of which came into force on DATE . In the following summary of the law in force at the time of the present case , the original enactments are cited first and any corresponding provision of the DATE Act in force at the relevant time is indicated in square brackets .

By way of general background information , the summary covers all CARDINAL of the procedures referred to above ( namely those relating to compulsory care , voluntary care and wardship ) , but in the present case it was the machinery for compulsory care and the wardship jurisdiction of ORG which were directly relevant .

ORG The principal statute concerning compulsory care is ORG " LAW " ) , as amended by LAW DATE and then partly replaced by LAW ; it enables a local authority to obtain , as a temporary measure , a " place of safety order " and , as longer - term measures , a variety of other orders .

ORG Under section CARDINAL ) of the CARDINAL Act , any person , including a local authority , may apply to a justice of the peace for authority to detain a child and take him to a place of safety ; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe , inter alia , that the child ’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill - treated , or that he is exposed to moral danger .

A " place of safety order " so granted lasts for a maximum of DATE and can not be extended . The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it .

If the local authority wishes to retain the child in protective surroundings after the DATE period , it has either to make the child a ward of court ( see paragraphs DATE below ) , or to institute care proceedings under LAW ( see paragraphs CARDINAL below ) , or to apply to a justice or a GPE court for an interim order under section PERSON ) ( see paragraph CARDINAL below ) ; if an application of the last kind is refused , the child ’s immediate release " may be ordered " .

ORG Under sections CARDINAL and CARDINAL ) of the DATE Act , a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is , subject to certain exceptions , under a duty to institute care proceedings by bringing the child before a juvenile court .

ORG In care proceedings instituted by a local authority , the parties are the local authority and the child , but not the latter ’s parents . The child is entitled , subject to his means , to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer . If the child is of sufficient competence , he may decide that he wishes to be separately represented .

A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority . As a matter of practice , the court will also allow such parent to cross - examine witnesses on behalf of the local authority and to have separate legal representation .

ORG If the court before which the child is brought is satisfied that one of the grounds specified in LAW exists and that the child is in need of care or control which he is unlikely to receive unless an order is made , it may make , inter alia , a supervision order , a care order or an interim order . The specified grounds include those on which a place of safety order may be made ( see paragraph CARDINAL above ) .

ORG A supervision order is an order placing the child under the structured supervision of the local authority ; subject thereto , he may continue to live with his parents .

ORG A care order is an order committing the child to the care of the local authority . The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order ( section CARDINAL of the DATE Act [ ORG ) of the DATE Act ] ) , except that it can not cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it can not agree to the child ’s adoption .

ORG An interim order is a care order limited to a specified period not exceeding DATE ; it may be renewed on application ( section QUANTITY of the DATE Act ) . It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made ( section CARDINAL(CARDINAL ) ) or , alternatively , during the currency of a place of safety order ( see paragraph CARDINAL above ) . The powers and duties of the local authority under an interim order are the same as under a full care order ( see paragraph CARDINAL above ) .

ORG A full care order normally terminates when the child in question attains the age of DATE ( section CARDINAL(CARDINAL)(b ) of the DATE Act ) .

In addition , under sections CARDINAL ) and CARDINAL ) , the juvenile court may , on application by the child or his parent on the child ’s ( but not his own ) behalf and if it considers it appropriate , discharge the care order and may , on discharging it , make a supervision order in respect of the child . Such applications may be made DATE or , with the juvenile court ’s permission , more frequently ( section ORG ) ) . The paramount consideration in deciding whether to discharge the order is the interests of the child .

ORG Under sections CARDINAL(CARDINAL ) and ORG of the DATE Act , the child in respect of whom the care order was made , or his parent on the child ’s ( but not his own ) behalf , may appeal to ORG against the making of a care order , against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge . ORG will review the decision by way of re - hearing the case . From ORG a further appeal may , with leave , be made to ORG by way of case stated ; thereafter an appeal lies to ORG and , in rare cases , to ORG .

The local authority has no general right to appeal against a juvenile court ’s refusal to make a care order , except on a point of law to ORG .

ORG The principal statute concerning voluntary care is LAW DATE ( " LAW " ) , as amended by LAW DATE and then replaced by LAW . This legislation in effect enables a parent to place his child into the care of a local authority ; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently .

ORG LAW the DATE LAW ] imposes on the local authority a duty to receive into its care a child under DATE where it appears , inter alia , that his parents or guardian are for the time being or permanently prevented by illness , incapacity or other circumstances from providing for his proper accommodation , maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child ’s welfare . Whilst the authority must , save as otherwise provided in the LAW , keep the child in its care so long as his welfare requires it and he has not attained the age of DATE , it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child ’s welfare .

Section CARDINAL of the CARDINAL Act [ CARDINAL of the DATE Act ] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care . However , if the child has been in care throughout DATE , no person may take him away unless he has given CARDINAL days’ notice of his intention to do so or has the authority ’s consent ( section CARDINAL(CARDINALA ) [ CARDINAL ) ] ) .

Moreover , if a parent requests the return of the child , the authority is not compelled to comply regardless of his welfare ( ORG v. ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) . If it then considers the transfer of care to the parent to be inconsistent with that welfare , it may either pass a parental rights resolution ( see paragraph CARDINAL below ) or apply to make the child a ward of court ( see paragraphs CARDINAL - CARDINAL below ) .

ORG If it appears to a local authority in relation to any child who is in its care under LAW [ CARDINAL of the DATE Act ] that , inter alia , a parent of his is unfit to have the care of the child on account , notably , of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent , the local authority may resolve that there vest in it the parental rights and duties with respect to that child ( section CARDINAL(CARDINAL ) [ CARDINAL ) ] ) . The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property , including " a right of access " but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders ( section CARDINAL(CARDINAL ) of the DATE Act [ CARDINAL(CARDINAL ) of LAW ] and section CARDINAL(CARDINAL ) of LAW DATE ) .

Before passing a parental rights resolution , the local authority must consider a report from its ORG on the desirability of assuming parental rights , which report should contain all the material necessary for the proper exercise of the authority ’s discretion . In deciding the matter , the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account .

ORG If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known , he must be served with notice of it , indicating his right to object by counter - notice within DATE ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ) [ CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ] ) . If such objection is made , the resolution lapses on the expiry of DATE from service of the counter - notice ( section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) ] ) . However , within that period , the local authority may " complain " to a juvenile court , in which event the resolution will not lapse until the complaint is determined ; on hearing the complaint , the court may order that the resolution is not to lapse , provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child ’s interest ( section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) and ( CARDINAL ) ] ) .

ORG A parental rights resolution continues in force until the child attains the age of DATE , unless it is previously rescinded by the local authority or terminated by a juvenile court ( section CARDINAL of LAW [ CARDINAL of the DATE Act ] ) .

The parent concerned , even if he did not originally object to the parental rights resolution , may apply to a juvenile court for its discharge . The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child ’s interests ( section CARDINAL(CARDINAL)(b ) [ CARDINAL(CARDINAL)(b ) ] ) . An application based on the original foundation for the resolution can , however , be entertained only if lodged within DATE of its adoption ( section CARDINAL of the Magistrates’ Court Act DATE ) .

ORG Under section CARDINAL of the CARDINAL Act [ CARDINAL of the DATE Act ] , an appeal ( by the parent or the local authority ) lies to ORG of ORG from the making by a juvenile court of an order confirming ( under section CARDINAL(CARDINAL ) [ CARDINAL(CARDINAL ) ] ) or discharging ( under section CARDINAL(CARDINAL)(b ) [ CARDINAL ) ] ) a parental rights resolution , or from a juvenile court ’s refusal to make such an order . A further appeal lies to ORG and , with leave , to ORG .

ORG of ORG has an inherent jurisdiction , independent of statutory provisions and deriving from the prerogative power of the ORG acting in its capacity as parens patriae , to make a child a ward of court .

ORG The effect of wardship is that custody , in a broad sense , of the child is vested in the court itself ; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever , notably as regards the care and control of and access to the child and his education , religion or property . In making such orders , the court is required to treat the child ’s welfare as the " first and paramount consideration " ( Guardianship of Minors Act DATE , section CARDINAL ) . Unless terminated earlier by order of the court , the wardship continues until the child attains his majority .

Where there are exceptional circumstances making it impracticable or undesirable for the ward to be , or continue to be , under the care of his parents , the court may make an order committing him to the care of the local authority ( LAW DATE , section CARDINAL(CARDINAL ) ) , subject to the power of the court to give directions ( Matrimonial Causes Act DATE , section CARDINAL(CARDINAL)(a ) ) . In such circumstances , custody of the child remains with the court and it is for the court , and not the local authority , to take major decisions regarding the ward ’s future ; it retains , inter alia , jurisdiction to make orders for access to the child .

Wardship proceedings may be instituted by anyone who can show an appropriate interest in the child ’s welfare . An application for a wardship order has to be made by originating summons . The child becomes a ward immediately the summons is issued but the wardship automatically lapses after DATE unless within that time an appointment is made for the hearing of the summons . This appointment is normally held before a registrar who , subject to an appeal to a judge , may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings .

A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child . From the judge ’s order , an appeal lies to ORG and thence , with leave , to ORG .

The child may be represented in wardship proceedings by a guardian ad litem appointed by the court ; this is usually the Official Solicitor , who is a full - time public employee entirely independent of the executive .

Under the Rules of ORG , it is possible to seek an order expediting the proceedings , notably if a party thereto is dilatory .

ORG The functions of a local authority in child - care matters are exercised and decisions are taken either by its ORG or by a sub - committee or an officer to whom powers have been delegated . At the time relevant to the present case , the practice varied from authority to authority , there being no precise requirements or guidance even of a non - statutory kind , and much depended on the nature or gravity of the decision to be taken . Whether the child is in its care by virtue of the DATE [ DATE ] or LAW , the local authority must give first consideration to the need to safeguard and promote the child ’s welfare throughout his childhood , and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them , having regard to his age and understanding ( section CARDINAL of LAW DATE [ CARDINAL ) of the DATE Act ] ) .

Authorities’ decisions in this area are , in fact , often based on the outcome of case reviews or case conferences . The authority is under a statutory duty to review the case of each child in its care at DATE intervals ( section CARDINAL(CARDINAL ) of the DATE Act ) and , as a matter of practice , the child ’s position will in addition be regularly examined at case conferences . Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority ’s ORG , as well as by such other persons as health visitors , doctors and police officers .

ORG A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof , although he has no legal right to do so . His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority .

In the absence of legal proceedings , the parent can not compel the local authority to produce or permit inspection of TIME of its relevant meetings or reports produced thereat , although the authority has a discretion to allow such inspection . In proceedings for judicial review ( but not in juvenile court proceedings ) , the court may order the pre - trial disclosure of such documents , but only after leave to institute the proceedings has been obtained ( see paragraph CARDINAL below ) ; however , this would be a rare occurrence , the general rule being that the documents are privileged and not open to inspection .

ORG A parent whose child is in the care of a local authority is not automatically deprived of access to him . The continuation of access is , however , a matter within the discretionary power of the authority ( per Lord PERSON in ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) . Thus , under LANGUAGE law , the question whether and to what extent a parent is to have access to his child who is in public care was , at the relevant time , within the competence of the local authority to decide , without any application to a court .

Both the DATE [ CARDINAL ] Act and the DATE Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable : the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time .

ORG The statutory remedies described in paragraphs CARDINAL and CARDINAL above , whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution , are directed to the order or resolution as such , there being , at the relevant time , no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child .

A decision of a local authority concerning access can , however , be challenged by way of an application for judicial review . Anyone who wishes to make such an application must first seek , normally within DATE of the decision , the leave of the court . The circumstances where judicial review will lie may be briefly summarised as follows :

( a ) the authority acted illegally , ultra vires or in bad faith ;

( b ) the authority failed to take into account relevant considerations , took account of irrelevant considerations or came to a decision to which no reasonable authority could have come ( Associated Provincial Picture Houses , Ltd. v. ORG [ DATE ] CARDINAL ORG Bench Reports CARDINAL ) ;

( c ) the authority failed to observe statutory procedural rules or to act fairly ( see notably R v. ORG , ex parte C and R v. GPE , ex parte B , ORG , DATE ) .

The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision - making process itself , and the court will not act as a " court of appeal " from the body involved . Thus , where on a successful application for judicial review the court quashes an authority ’s decision , it will normally remit the matter to the authority for reconsideration ; it may , however , also direct the authority to reach a conclusion in accordance with the court ’s findings ( Rules of ORG , Order CARDINAL , rule ORG ) ) .

ORG In certain circumstances , the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former ’s care . The general rule is that the prerogative power of the Crown is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation . In the leading case of ORG , ORG examined the relationship between the wardship jurisdiction and the authorities’ statutory powers . Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions , notably on such matters as access to the child : the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise ( except on judicial review principles ; see paragraph CARDINAL above ) the exercise of discretion within the field committed to them by statute . Sometimes , however , the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court .

The foregoing limits on ORG powers apply only where the wardship proceedings concern a child who is already in public care . If he is not , ORG can examine fully such questions as access and make such order as it considers to be in his best interests .

ORG The inability of parents to approach the courts , save as explained above , where decisions are made by a local authority affecting access to their children led ORG , in ORG Social Security Adjudications Act CARDINAL , to modify the law on this point .

Under the new provisions - which came into force on DATE , that is after the events giving rise to the present case - , a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent . The latter then has a right to apply to a juvenile court for an access order , requiring the local authority to allow access subject to such conditions as the court may specify . Where an access order has been made , there is a right to apply for variation . An appeal against the juvenile court ’s decision lies to ORG . Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration .

This new remedy applies only to decisions refusing or terminating access ; in all other cases , the nature and extent of access remain within the local authority ’s discretion .

ORG In DATE , the Government published a Code of Practice on Access to Children in Care . This document stresses the importance of involving the child ’s natural parents in the local authority ’s decision - making process in this area and of informing them fully and promptly as to the substance of decisions concerning access .

ORG A court can not make an adoption order in respect of a child unless , inter alia , it is satisfied that each parent freely and unconditionally agrees ( LAW DATE , section CARDINAL ) . However , such agreement may be dispensed with upon a number of grounds specified in that section , notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties . In reaching any decision relating to the adoption of a child , a court must have regard to all the circumstances , first consideration being given to the need to safeguard and promote his welfare throughout his childhood ( Children Act DATE , section CARDINAL ) .

ORG Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of ORG . On an application for leave , the court ’s function is to consider whether the proposed adoption application is one that might reasonably succeed , the merits of the matter being examined subsequently , once leave has been granted and after compliance with the requirements concerning notices and reports .


The applicants , PERSON born in GPE in DATE and T. born in GPE in DATE are NORP citizens currently resident in Hull . They are represented before the ORG by Mr D. Foster , a solicitor practising in GPE .

The applicant sisters are NORP . Their parents , PERSON and PERSON , were active in the NORP community in GPE and PERSON was a ORG minister for DATE . In DATE , the second applicant , PERSON married her cousin , also a NORP and son of a minister in DATE . She went to live in GPE and from DATE worked as a teacher in ORG in GPE . The first applicant , PERSON had married a fellow NORP in DATE and moved to live in ORG .

On DATE , after the attacks in GPE on DATE , there was an attack on the NORP church in GPE . Machine guns were fired into the church and many worshippers were killed and injured . CARDINAL of the policeman on duty at the church was killed . PERSON was among the severely injured . Mr and PERSON , and their son PERSON fled to GPE to obtain medical treatment for PERSON Their son PERSON was already in GPE . All were granted asylum . The applicants’ sister PERSON was also granted asylum on DATE .

On DATE , the first applicant travelled to GPE with her children on a visitors visa to see her mother who continued to be unwell .

On DATE , PERSON died .

On DATE the second applicant came to GPE with her family to attend the funeral .

On DATE , DATE after her arrival , the first applicant applied for asylum , along with her husband and daughter , invoking Articles CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE of the Convention . She stated that there had been a bomb threat on their church in ORG during DATE when the police had deactivated an explosive device , while in DATE her husband and his brother had been attacked by extremists . In the latter incident , although there was shooting , CARDINAL was hurt and the assailants absconded with her husband ’s motorbike . She and her husband had also received threatening telephone calls .

By letter dated DATE , the Secretary of ORG gave reasons for refusal , considering that the applicant had never been physically attacked or ill - treated on the basis of her beliefs and had not been present during the bomb threat at the church where the police had successfully intervened . He noted that NORP were a recognised minority group under LAW , that the Government were taking measures to curb acts of sectarian violence and that they were willing and able to take action to protect NORP churches and communities .

By decision of DATE , the Adjudicator refused her appeal , finding that the authorities offered protection to churches , inter alia convicting CARDINAL men for an attack on a NORP church . He also noted that the applicant had not herself been personally or directly threatened with violence and that she had lived some distance from GPE , having no direct connection with the incident there . He noted that the assault on her husband in DATE had been reported as robbery without any mention of religious motivation for the attack . He found no problem arising under LAW as there was no bar on NORP as shown by the fact that her father had been a minister for DATE . He concluded that she had not shown that she was risk .

On DATE , ORG ( ORG ) , refused the first applicant permission to appeal noting a recent precedent from ORG in GPE ( R ( GPE ) v. a Special Adjudicator [ CARDINAL ] PERSON CARDINAL ) and finding in line with that authority that the situation of NORP in GPE who , for example , had their own representatives in ORG was not so flagrantly bad as to allow exceptionally a case to proceed under LAW where there were no grounds under LAW .

On DATE , the second applicant applied for asylum , together with her children and husband . She invoked ORG , DATE , DATE , DATE and CARDINAL of the Convention , claiming that she feared that if she returned to GPE she would be subjected to attack by NORP extremists because she was a NORP . She referred to having received nuisance telephone calls during TIME after the incident on ORG .

By letter dated DATE , the Secretary of ORG refused asylum , noting inter alia that NORP were a recognised minority group under LAW , that the Government were taking measures to curb acts of sectarian violence and that they were willing and able to take action to protect NORP churches and communities . He also did not consider that the applicant was at risk because of the incident at GPE as she lived in GPE and since the incident had suffered nothing more serious than nuisance telephone calls . He found no ground for a breach of LAW as she had not shown any risk of a flagrant denial of her rights .

By decision of DATE , the Adjudicator refused the applicant ’s appeal , noting that the applicant had not applied for asylum at the time of the DATE attack but had remained in GPE for DATE . While she claimed to have received unpleasant telephone calls , she had been able to deal with them by switching off the phone . He found no indication that there would be insufficient protection offered to her by the authorities who had placed guards on the churches and on the school where she worked .

On DATE , the ORG refused permission for an appeal , noting that the second applicant had not raised her Article CARDINAL complaint before the Adjudicator even though she was represented by specialist advocates and finding no error in the Adjudicator ’s decision .

In the case of NORP ( on the application of GPE ) v. PERSON ( [ CARDINAL ] PERSON CARDINAL ) , the claimant entered GPE from GPE and applied for asylum , claiming to have a well - founded fear of persecution as a result of his religious beliefs . The Secretary of ORG dismissed his claim and held that he had not qualified for permission to remain in the country by reason of any LAW . The claimant ’s appeal was dismissed , the Special Adjudicator finding that he did not have a well - founded fear of persecution and that , while LAW could be engaged in such a situation , the Secretary of ORG had acted lawfully and proportionately and in pursuance of the legitimate aim of immigration control in refusing leave to remain .

ORG dismissed the claimant ’s further appeal , holding that where the Convention was invoked on the sole ground of the treatment to which an alien was likely to be subjected by the receiving ORG and that treatment was not sufficiently serious to engage LAW , the court was not required to recognise that any other LAW was , or might be , engaged .

ORG dismissed the claimant ’s further appeal . However , differing from ORG , the ORG held that where in relation to the removal of an individual from GPE the anticipated treatment did not meet the minimum requirements of LAW , other ORG of the LAW might be engaged . While it was hard to conceive that a person could successfully resist expulsion in reliance on DATE without being entitled either to asylum on the ground of a well - founded fear of being persecuted for reasons of religious or personal opinion or to resist expulsion in reliance on LAW , such a possibility could not be ruled out . It would be necessary for a claimant to establish at least a real risk of a flagrant violation of the very essence of the right before the other ORG could become engaged . ORG found that , in the instant appeal , the claimant ’s case had not come within the possible parameters of a flagrant , gross or fundamental breach of LAW such as to amount to a denial or nullification of the rights conferred by LAW .


CASE OF VEREINIGUNG DEMOKRATISCHER SOLDATEN ÖSTERREICHS AND GUBI v. AUSTRIA

Violation of Art. 10;Violation of Art. 13 (first applicant);No violation of Art. 13 (second applicant);Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

ORG The first applicant , a GPE - based association , published a DATE magazine aimed at the soldiers serving in the NORP army and entitled der Igel ( " The Hedgehog " ) . It contained information and articles - often of a critical nature - on military life .

ORG On DATE the association requested the Federal Minister for Defence ( PERSON für GPE ) to have der PERSON distributed in the barracks in the same way as the only other CARDINAL military magazines published by private associations , ORG and PERSON . The army had adopted the practice of sending these magazines out , alternately and at its own expense , with the official information bulletin distributed to all conscripts ( ORG ) .

The minister did not reply to this request . When questioned by members of parliament , he stated in a letter of CARDINAL DATE that he would not authorise the distribution of PERSON in barracks . In his view , section CARDINAL para . CARDINAL of LAW ( PERSON , see paragraph CARDINAL below ) conferred on all armed forces personnel the right to receive without any restriction , through sources accessible to the public , information on political events . However , on military LOC the only publications that could be supplied were those which identified at least to some extent with the constitutional duties of the army , did not damage its reputation and did not lend column space to political parties . Even critical magazines such as the journal LOC of the trade union youth organisation would not be banned if they respected these conditions . PERSON , on the other hand , did not comply with them . The minister derived authority for his decision in this matter from LAW ( Bundesverfassungsgesetz ) and sections CARDINAL para . CARDINAL and CARDINAL of LAW , LAW ) and LAW para . CARDINAL of ORG ( Allgemeine Dienstvorschriften für das PERSON , see paragraphs CARDINAL below ) .

ORG The second applicant , a member of the VDSÖ , began his national service on DATE at the LOC barracks in GPE . On DATE , on the occasion of his taking the oath , he made a protest directed against the President of the Republic . Over DATE , he lodged several complaints , published with CARDINAL of his fellow conscripts an open letter criticising the number of fatigue duties to which he was assigned and circulated a petition in support of a conscientious objector .

On CARDINAL , CARDINAL and DATE he was personally informed of the content of the military law applicable to his situation .

ORG On DATE , while distributing issue no . CARDINAL of der Igel in the barracks , he was ordered by an officer to cease .

In its editorial , the issue in question mentioned , as being one of the aims of the ORG , co - operation between conscripts and the cadres on the basis of their joint interests and of mutual respect . Some articles adopted a critical stance ; they dealt with , among other things , military training , the proceedings resulting from a complaint lodged by PERSON and the principles governing national service . The other articles discussed various contributions that had appeared in the press , the congress of the trade union youth movement , the aims and the activities of the ORG and the complaint of a conscript whose pay had been reduced following alleged loss of equipment .

ORG On DATE another officer informed Mr Gubi of the content of the circulars of DATE and DATE and of the regulations of the PERSON barracks , as amended on DATE , which prohibited any distribution or despatching within the barracks of publications without the authorisation of the commanding officer ( see paragraph CARDINAL below ) .

ORG On DATE Mr PERSON complained about this ban and about the order of CARDINAL DATE ( see paragraph CARDINAL above ) to ORG ( Beschwerdekommission in militärischen ORG ) at ORG .

On DATE ORG ( ORG ) at the ministry rejected the applicant ’s complaint , in accordance with ORG recommendation . In its view , the contested order was validly based on a DATE circular of ORG ( ORG ) , containing instructions regarding the distribution of printed matter , which were themselves based on LAW ( NORP über die allgemeinen Rechte der Staatsbürger ) , LAW of ORG and LAW ( see paragraphs CARDINAL and CARDINAL below ) . The first of those provisions affords the same protection to the property of public - law legal persons as that guaranteed to the property of private individuals ; accordingly , the PERSON barracks were to be regarded as the property of ORG , whose rights were exercised by the commanding officer .

The freedom of expression secured under LAW was subject to " statutory limits " ( gesetzliche GPE ) such as those which stemmed from the duty of discretion and obedience laid down in sections CARDINAL and CARDINAL of LAW and derived from the very nature of this special relationship of subordination ( besonderes PERSON ) . The contested measures had therefore in no way interfered with the freedom in question .

Mr Gubi then applied to ORG ) . On DATE it declined to entertain his appeal on the ground that it did not raise genuine constitutional issues and had insufficient prospects of success .

ORG DATE , however , ORG quashed the decision of CARDINAL DATE whereby the commanding officer of battalion no . CARDINAL had confirmed the CARDINAL days’ custody imposed on the applicant as a disciplinary penalty for having distributed der ORG in the barracks . It found that the provisions which Mr PERSON was accused of infringing , the DATE and DATE circulars ( see paragraph CARDINAL below ) , were not binding on him but on the military authorities . This was not the case in regard to the relevant provisions of the Schwarzenberg barracks regulations , but these rules had been introduced on DATE and were therefore not yet in force at the material time .

LAW DATE on the general rights of citizens protects property .

ORG Article CARDINAL provides as follows :

" Subject to statutory limits , everyone has the right to express freely his opinion orally , in writing , in the printed word or through graphic expression . The Press may not be censored or restricted by a system of licences ... "

ORG Article CARDINAL of LAW describes the general duties of the NORP armed forces .

ORG At the material time the rights and obligations of military personnel were governed by sections DATE LAW . According to this statute , soldiers are under a duty to support the army in the performance of its tasks and to refrain from doing anything which could damage its reputation ( section CARDINAL para . CARDINAL ) . They have the right to submit requests and complaints and to file appeals ( section CARDINAL para . CARDINAL ) . They enjoy the same political rights as civilians ( section CARDINAL para . CARDINAL ) . However , the army must not be involved in any political activity and may not be used for political ends ( section CARDINAL para . CARDINAL ) . Consequently , such activities while on duty and on military LOC are prohibited , with the exception of those which consist in obtaining information as an individual on political events through sources accessible to the public ( section CARDINAL para . CARDINAL ) .

The General Army Regulations , issued by ORG , set out the obligations attaching to national service . They provide , inter alia , that servicemen must always be ready to fulfil their duties in the best possible way and must refrain from doing anything which could damage the reputation of the army and undermine the confidence of the population in the defence of the country ( Regulation CARDINAL para . CARDINAL ) . Servicemen have a special relationship of subordination in regard to GPE . That relationship requires of them , in addition to the defence of the democratic institutions , discipline , comradeship , obedience , vigilance , courage and discretion ( Regulation CARDINAL para . CARDINAL ) . Under Regulation CARDINAL para . CARDINAL barracks’ commanders are bound to take all the measures necessary to maintain order and military security in the LOC in question ; to this end they are under a duty to issue rules ( PERSON ) governing inter alia access to the barracks ( Regulation CARDINAL para . CARDINAL ) .

ORG By a circular of ORG of DATE the army general staff ( ORG ) instructed commanding officers to take preventive measures in respect of publications denigrating the army ( negatives wehrpolitisches PERSON ) . They were , among other things , to ban their distribution and posting up in military areas .

A circular from the general staff of ORG ) of CARDINAL DATE instructed the same officers to insert in the barracks rules a prohibition on the distribution or posting up without the commanding officer ’s authorisation of any non - official publication . The PERSON barracks rules were amended accordingly on DATE .

ORG The Constitutional Court examines , on an application ( Beschwerde ) , whether an administrative measure ( Bescheid ) has infringed a right guaranteed to the applicant by the LAW , or whether it has applied a decree ( Verordnung ) that is contrary to the law , an LAW contrary to the LAW or an international treaty incompatible with NORP law ( Article CARDINAL para . CARDINAL of LAW ) .


The applicant is a company based in GPE . It is represented before the Court by PERSON ORG , a lawyer practising in GPE .

A.

The applicant is the owner of an apartment in GPE , which it had let to a company , ORG

In a writ served on the tenant on DATE , the applicant company summoned the tenant to appear before ORG with a view to recovering possession of its apartment on the ground of rent arrears .

At the hearing of DATE , Ms. PERSON appeared before the Magistrate and declared that she was the user of the apartment and the de facto tenant . She thus opposed the termination of the contract and requested a delay in order to pay up the arrears . The Magistrate granted her a delay of DATE .

Ms. PERSON having failed to fulfil this obligation , 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 must be vacated by DATE .

On DATE the applicant company served notice on the tenant requiring her to vacate the premises .

On DATE the applicant company served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .

Police assistance was granted twice , and twice revoked on the grounds of the tenant 's low income and her committal to find alternative LOC , and this despite the complaints which the applicant company addressed to the competent committee of tenants and landlords set up by PERSON no . CARDINAL , on DATE and DATE . The bailiff 's attempts to recover possession , on DATE , DATE and DATE were unsuccessful .

The eviction was enforced by the bailiff on DATE with the assistance of the police .

B. Relevant domestic law

The relevant domestic law is described in the ORG GPE judgment of DATE , to be published in the ORG 's official reports , § § DATE .


The first applicant , PERSON , is the sister of the second applicant , Mr PERSON . They were both born in DATE and live in GPE . The third and fourth applicants , PERSON and PERSON PERSON , are sisters . They were born in DATE and DATE respectively and live in Erftstadt and GPE . The fifth applicant , PERSON , was born in DATE and lives in GPE LAW .

In DATE , people in the NORP GPE of GPE who owned CARDINAL hectares of land were expropriated under the land reform ( PERSON ) . The land became part of a pool of ORG - owned land ( PERSON ) from which parcels of land averaging CARDINAL hectares in area were redistributed to farmers who had little or no land of their own .

The applicants are the heirs of the new owners ( then called “ new farmers ” – Neubauern ) of the land redistributed under the land reform ( Bodenreformgrundstücke ) and situated in the former GPE ( GPE ) .

The DATE Land Reform Decrees ( Bodenreformverordnungen – see paragraphs CARDINAL below ) constituted the statutory basis of this land reform . They provided that the disposal of land acquired under the land reform was subject to restrictions ( Verfügungsbeschränkungen ) . The certificates of allotment ( GPE ) stated that the land could pass to the new owner 's heirs .

The decrees stipulated that certain portions of the land had to be used for agricultural purposes in order to provide sufficient food for the population .

The Change of Possession Decrees of DATE , CARDINAL DATE and DATE ( Besitzwechselverordnungen – see paragraphs CARDINAL - CARDINAL below ) dealt with cases where the land was returned to the pool of ORG - owned land or assigned to third parties , with the proviso that the latter undertook to use it for agricultural purposes .

After DATE of FAC on DATE , negotiations started between the two GPE and the CARDINAL former occupying powers ( GPE , GPE , GPE and GPE ) and led to the reunification of GPE , which took effect on DATE .

As part of those negotiations , and in order to ensure a transition from a socialist economy to a market economy , the GPE parliament passed the Law of DATE on the rights of owners of land redistributed under the land reform ( ORG über die ORG der PERSON aus der DATE see paragraph CARDINAL below ) , also known as LAW ( after the President of ORG ( NORP ) at the time ) , which came into force on DATE .

The Modrow Law lifted all restrictions on the disposal of land acquired under the land reform , whereupon those in possession of the land became owners in the true sense of the word .

On DATE the first free elections took place in the GPE .

On DATE the Modrow Law became an integral part of the law of GPE ( FRG ) .

On DATE the ORG legislature enacted the second LAW ( Vermögensrechtsänderungsgesetz ) on the liquidation ( GPE of the land reform in the Länder of the former GPE . It came into force on DATE .

When passing that LAW , the legislature inserted subsections ( CARDINAL ) to ( CARDINAL ) into section CARDINAL of LAW to LAW ( Einführungsgesetz in ORG see paragraphs CARDINAL below ) on the basis of the principles set out at the time in the GPE by ORG and LAW .

The first CARDINAL applicants had inherited land in GPE in DATE . They had been registered in the land register as the owners of that land since DATE .

On DATE they attempted to sell it .

On DATE ORG ( ORG für DATE ORG ) of ORG opposed the sale , following which a right of pre - emption in favour of the tax authorities was registered in the land register .

On DATE the department in question applied to ORG ( ORG ) for an order requiring the applicants to reassign their property to ORG without compensation .

In a judgment of CARDINAL DATE , ORG ordered the applicants to reassign their property in accordance with section CARDINAL(CARDINAL ) , paragraph CARDINAL , and ORG ) , CARDINAL , of LAW to LAW ( see paragraphs CARDINAL below ) . It held that they had had no right to inherit land that had been acquired under the land reform because neither of them had been carrying on an activity in the agriculture , forestry or food - industry sectors on DATE or during DATE .

The applicants appealed .

In a judgment of CARDINAL DATE , ORG ( Landgericht ) dismissed their appeal on the ground that , on inheriting the property , the applicants had not acquired title to it for the purposes of LAW ) , because in DATE land acquired under the land reform had already been subject to substantial restrictions in the GPE . LAW and LAW of DATE prohibited the sale of such land and provided that any decision regarding a change of possession was a matter for the ORG . That position had not been altered by ORG of DATE .

On DATE the applicants appealed to ORG on the grounds that they were the legitimate heirs to and owners of the land . In their submission , ORG Decrees restricting the use of land acquired under the land reform had been passed after their mother had acquired the land and were therefore inapplicable in their case .

On DATE ORG ( Bundesverfassungsgericht ) , sitting as a bench of CARDINAL judges , dismissed their appeal .

ORG held , as it had previously held in its judgment of CARDINAL DATE on the same issue ( see paragraph DATE below ) , that the statutory provisions in question did not breach the applicants ' right of property , or the principle that laws could not apply retrospectively , or the principle of equality .

The third and fourth applicants had inherited land in GPE in DATE . They had been registered in the land register as the owners of that land since DATE .

They had leased their land to an agricultural company called ORG for DATE , from DATE to DATE .

On DATE ORG requested that the land be transferred into its name on the ground that it had “ superior title ” ( bessere Berechtigung ) to it under section CARDINAL ) , paragraph CARDINAL , and ORG ) , paragraphs CARDINAL and CARDINAL , of LAW to LAW ( see paragraphs CARDINAL below ) .

In a judgment of CARDINAL DATE , ORG ordered the applicants to transfer their property to ORG on the ground that on DATE they had neither been members of an agricultural cooperative ( Landwirtschaftliche Produktionsgenossenschaft ) in the GPE nor applied for membership of CARDINAL .

The applicants appealed on the ground , inter alia , that , since the leading judgment of ORG of CARDINAL DATE ( see paragraph CARDINAL below ) , it had been established that title to land acquired under the land reform could pass to the owner 's heirs .

In a judgment of CARDINAL DATE , ORG ( Oberlandesgericht ) dismissed the appeal , holding that the statutory provisions in question were compatible with LAW . It found , inter alia , that the NORP legislature had thus sought to remedy the loopholes in LAW , which contained no transitional provisions for cases where changes of ownership had not been recorded in the land register .

NORP The applicants appealed to ORG , alleging a breach of their property and inheritance rights , of the rule that laws could not apply retrospectively , and of the principle of equality . They submitted that there had been no constitutional justification for interfering with their right of property without compensation and that the interference had been neither proportionate nor necessary .

Furthermore , they were no longer in a position to satisfy the requisite criteria , for example by becoming members of a GPE agricultural cooperative .

In a leading decision of DATE , ORG , ruling as a panel of CARDINAL judges , dismissed the applicants ' appeal on the ground that there had not been a breach of their fundamental rights .

The relevant extract of that decision reads as follows :

“ CARDINAL . The decisions that are the subject of this appeal are contrary neither to LAW nor to the principles of protection from retrospective laws , which in that provision has an autonomous meaning ...

( a ) The rules under LAW ) , paragraph CARDINAL , first sentence , taken together with section ORG ) , paragraph CARDINAL , no . CARDINAL , letter ( c ) , and paragraph CARDINAL of LAW to LAW , which were applied by the civil courts , are compatible with the right of property enshrined in LAW .

( aa ) According to the undisputed and not manifestly unconstitutional finding of ORG , title to land acquired under the land reform in the NORP Occupied Zone and GPE could pass to the owner 's heirs . That is how , under inheritance law , the appellants acquired title to the land in question . Although their rights were initially subject to the restrictions set out in LAW , no . CARDINAL , of Decree no . CARDINAL of DATE on the land reform in ORG ... and the various Change of Possession Decrees , those restrictions were subsequently lifted when PERSON came into force . It can therefore be assumed , as it was by ORG , that from then on title to property acquired under the land reform conferred full ownership and as such fell within the scope of LAW , including in those cases where it had passed to the heirs [ NORP ] , that is , in cases where the owner originally registered in the land register had died before DATE .

( bb ) Section CARDINAL(CARDINAL ) , paragraph CARDINAL , first sentence , taken together with section ORG ) , paragraph CARDINAL , no . CARDINAL , letter ( c ) , and paragraph CARDINAL of LAW to LAW has the effect of depriving the owners of land acquired under the land reform of their title to the land . That does not mean , however , that the land is expropriated within the meaning of LAW of LAW Expropriation is the taking by the ORG of an individual 's property . It fully or partially deprives individuals of their personal and actual legal title guaranteed by LAW , in order to achieve specific public aims ... LAW ) to ( CARDINAL ) of LAW to LAW is designed to remedy ex post facto the repeal without transitional provisions [ ersatzlose Aufhebung ] of the change of possession provisions [ GPE ] implemented by LAW DATE and to clarify the position regarding title to land acquired under the land reform ... The provisions of section CARDINAL ) , paragraph CARDINAL , first sentence , taken in conjunction with section ORG ) , paragraph CARDINAL , no .. CARDINAL , letter ( c ) , and paragraph CARDINAL being indirectly challenged here are part of this idea of regularisation [ ist Teil dieses Regelungskonzepts ] and thus amount to rules establishing the substance and limits of ownership ( of land ) , within the meaning of LAW , second sentence , of LAW .

( cc ) In order to accomplish the task required of it under the said provision , the legislature has to take account of both the legal position of the owner and the requirements of the system of socially fair ownership under LAW . It also has to strike a fair balance [ gerechter PERSON ] and proportionate relationship [ ausgewogenes PERSON ] between the legitimate interests of the persons concerned . Unilateral favourable or unfavourable treatment of some rather than others would not be in keeping with the constitutional foundations of a socially just system of private property ...

In exercising its legislative power under LAW , second sentence , of LAW , the legislature can also , in certain circumstances , nullify existing legal positions protected by a property safeguard when undertaking a general reform of a particular legal area ... Moreover , fundamental changes in the economic and social situation can broaden its margin of manoeuvre when creating new legislation . The legislature can also , in enacting provisions on the basis of LAW , second sentence , of LAW , take account of the difficulties caused by the transition from the socialist legal order and its property regime , including the legal positions subsequently acquired , to the legal system of GPE and to the fact that such a transition can not be implemented TIME . This will have implications for the interpretation of a particular law . Individual provisions imposing a burden can not be examined in isolation regardless of their legislative context , or without regard to the fact that the desired legal position can only be put in place step by step ...

( dd ) Judged in the light of those criteria , the rules under LAW ) , paragraph CARDINAL , first sentence , taken together with section ORG ) , paragraph CARDINAL , no . CARDINAL , letter ( c ) , and paragraph CARDINAL of LAW to LAW are compatible with LAW .

( aaa ) The provisions complained of pursue a legitimate aim .

According to the legal reasoning of ORG , which was adopted by ORG in the original proceedings , section CARDINAL ) , paragraph CARDINAL , first sentence , taken together with section ORG ) , paragraph CARDINAL , no . CARDINAL , letter ( c ) , and paragraph CARDINAL of LAW to LAW remedies a hidden legislative loophole in LAW DATE regarding the inheritance of title to property acquired under the land reform , which is at the heart of the instant case . In theory , this finding binds ORG . Like the establishment and assessment of the facts relevant to the decision , the interpretation and application of the law of another ORG are matters for the jurisdiction of the ordinary courts . Only under certain conditions does ORG have corrective power in that regard . Those conditions would only be met here if the assessment of the law of the German GPE relating to a hidden loophole in the PERSON of DATE , which forms the basis of ORG judgment , had breached LAW ... in so far as it prohibits arbitrariness ... This is not the case , however .

In the light of the relevant statutory provisions , ORG established that the deliberations in ORG [ ORG ] on DATE were designed to prepare GPE statutory agricultural regime for adjustment to a social market - economy orientated agriculture . It noted in that connection that priority had been given to amending LAW . At the same time , however , the restrictions on the disposal of land acquired under the land reform were also to be lifted and inheritance rights guaranteed in the future . In doing so , ORG apparently did not realise that the repeal ( deemed necessary for that purpose ) of ORG Decrees without any transitional provisions for those transfers and returns that had not been implemented also extended to cases where title to property acquired under the land reform had passed to the owner 's heirs . ORG found that simply transferring title to land used for agricultural purposes to the heirs of beneficiaries who had died , even where the heirs in question did not live in GPE or did not work in the agricultural sector ... did not contribute to the adjustment of a State agricultural system to a market one .

That reasoning is understandable [ nachvollziehbar ] and does not in any way support the assumption that the assessment of ORG and therefore of ORG was based on considerations that were irrelevant to the facts of the case and thus breached the prohibition on arbitrariness contained in LAW . It is not for ORG to decide whether the drafting history of LAW DATE and legal development in the territory that subsequently acceded to GPE up until reunification indicate that it was the legislature 's intention to repeal – without any transitional provisions , including for cases where land acquired under the land reform had passed to the owner 's heirs – the restrictions on the disposal of title to land acquired under the land reform and ORG Decrees .

( bbb ) Nor is the manner in which the legislative loophole identified by ORG was remedied by the provisions in question open to criticism from the point of view of compatibility with LAW . It leads , against the background of the former decrees of GPE on changes of possession , to an appropriate system of ownership reflecting the factual situation and one that is , moreover , acceptable to the interested parties and clarifies the position for the future .

Article CARDINAL § CARDINAL of the Change of Possession Decree of DATE , in the version set out in the Decree of DATE , provided that , on the request of an heir to land acquired under the land reform , the district council was to transfer the rights and obligations relating to the use of the land to the heir or to a member of his family designated by him , with the proviso that the heir or the member of his family concerned use the land for agricultural purposes as a member of a ORG or as a labourer . Where there were several heirs , they had to inform the district council promptly to which heir or other member of their family the rights and obligations associated with farming the land should be transferred . If the conditions for transfer were not satisfied , the land would return to the pool of ORG - owned property , in accordance with LAW of the decree .

NORP By enacting section CARDINAL(CARDINAL ) , paragraph CARDINAL , first sentence , taken together with section CARDINAL(CARDINAL ) of LAW to LAW , the parliament of reunified GPE transposed these legal principles wholesale . The parties have therefore been placed in the situation that they would have been in if ORG Decrees had been properly applied and implemented by the authorities of GPE prior to the entry into force of LAW DATE or if , before reunification , the legislature of GPE had enacted transitional provisions akin to the rules previously governing changes of possession . The provisions complained of , as ORG rightly held , moreover , did not destroy the legitimate confidence [ schutzwürdiges Vertrauen ] of the heirs of owners of land acquired under the land reform .

It was not generally possible to have confidence in the continued application of the laws of GPE at the time of the change of regime [ PERSON ] , given the possible reunification of the two GPE . Such confidence would have been justified only if there were special reasons for believing that the law of GPE would exceptionally remain in force ... The expectation that property ownership acquired prior to the entry into force of LAW in the territory that had acceded to ORG would in principle be recognised could not be as extensively protected as the expectation that the rights acquired by virtue of LAW would be maintained . In any event , the only factor to be taken into consideration for the protection of this expectation is the factual and legal position the NORP federal legislature found to obtain in GPE when it ceased to exist as a ORG and which , in the course of reunification , was so to speak transposed as a legal element into the sphere of application of LAW ...

Consequently , the heirs of the owners of land acquired under the land reform could no longer legitimately expect to maintain the title they had acquired by virtue of the failure to implement the Change of Possession Decrees enacted at the time of GPE . Nor did the transition , in terms of both the general and the constitutional law , of GPE to a legal order protecting private property offer particular grounds for expecting that , where land acquired under the land reform passed to the owner 's heirs , title to the land – described in the law in question as full ownership DATE would be maintained . Once transition had been achieved , only ownership of private property knowingly and intentionally conferred on an individual was to be protected . This was not the case regarding the ownership of land that had been acquired under the land reform and subsequently inherited from the owners , since , as observed by ORG , there was a hidden legislative loophole in LAW DATE . It therefore has to be assumed that the legislature of GPE would itself have enacted analogous provisions to those by which the land became ORG - owned property again if it had been aware of the factual and legal position regarding cases where there were no heirs satisfying the conditions by which the rights and obligations governing use of the land could be transferred to them .

In these circumstances , the legislature of reunified GPE was justified in compensating , comprehensively , for provisions that had been overlooked at the material time . The fact that it did not remedy this loophole when LAW was signed does not justify a legitimate expectation that the legal position created by LAW DATE would be maintained . Having regard to the multiplicity and complexity of the tasks that had to be undertaken in connection with reunification , the authors of LAW were not in a position to enact in a single stroke of the pen , as it were , and in a definitively satisfactory manner , all the rules necessary to ensure the smooth adjustment of the law of GPE to that of GPE ... Thus all persons subject to the jurisdiction of the courts had to expect that legal positions initially transferred as they stood would be modified and clarified by the reunified NORP legislature once it had ascertained the scope of the laws enacted by GPE .

The same also applies to ownership of land acquired under the land reform , which the legislature of GPE had transformed into full ownership when privatising the agricultural system . ”

The fifth applicant had inherited land in GPE in DATE .

DATE , she had been a member of an agricultural cooperative in the GPE . From DATE , she had worked as a cleaner at ORG ( ORG für PERSON ) in the GPE . After the dissolution of the GPE , she had been a member of ORG until DATE .

Prior to NORP reunification , the town of GPE an der PERSON had opened a leisure centre called the ORG on the applicant 's land . After reunification , the town had leased the leisure centre to a managing company . The applicant had accordingly been paid MONEY ( DEM ) in rent paid to the town in error .

From DATE , the applicant had been registered in the land register as the owner of the land . On DATE she signed a lease with the managing company of the leisure park for an annual rent of ORG CARDINAL .

On DATE ORG requested that the land be transferred into its name on the ground that it had superior title to it under LAW ) , paragraph CARDINAL , and ORG ) , CARDINAL , of LAW to LAW ( see paragraphs CARDINAL below ) .

In a judgment of DATE , the GPE LAW ordered the applicant to transfer her land on the ground that , on DATE , she had not been carrying on an activity in the agriculture , forestry or food - industry sectors . It also ordered her to pay ORG plus interest at the DATE rate of PERCENT from DATE .

This judgment was upheld on DATE by ORG , which held , among other things , that the mere fact that the applicant had technically always been a member of an agricultural cooperative , even after starting her job at ORG , did not suffice to give her valid title to the land in question . Moreover , referring to the decisions of ORG of DATE and DATE , ORG held that section CARDINAL(CARDINAL ) did not infringe the right of property or the principle that laws could not apply retrospectively even if the “ new farmer ” had paid a certain sum on being allotted his or her land under the land reform .

In a decision of DATE , ORG allowed an appeal on points of law by the applicant regarding the amount she had been ordered to pay and dismissed the remainder of the appeal .

In a judgment of CARDINAL DATE , ORG remitted the case to ORG regarding the first point , on the ground that the applicant had been justified in keeping the compensation for loss of enjoyment ( PERSON ) that she had received from the town of GPE an der PERSON prior to DATE .

In a judgment of DATE , ORG ordered the applicant to repay an aggregate amount of DEM CARDINAL,CARDINAL .

The applicant lodged a constitutional appeal with ORG , relying on a breach of her rights of property and inheritance , of the principle that laws could not apply retrospectively , and of the principle of equality . In her submission , there had been no constitutional justification for interfering with her right of property without paying her compensation , and the interference had been neither proportionate nor necessary .

In a leading decision of DATE , ORG dismissed the applicant 's appeal on the ground that there had not been a breach of her fundamental rights ( see paragraph DATE below ) .

The Land Reform Decrees of DATE constituted the statutory basis of the land reform and imposed restrictions on the disposal of land acquired under the land reform . They provided , among other things , that land acquired under the land reform could not be divided up , sold , leased or seized and that part of the harvest had to be handed over to the ORG .

In certain exceptional cases , the land could be divided up and leased , however , if the local administrative authorities agreed . The certificates of allotment described the land as “ private property capable of passing to the owner 's heirs ” .

The decrees stipulated that certain portions of the land had to be used for agricultural purposes in order to provide sufficient food for the population .

The Change of Possession Decrees of DATE , CARDINAL DATE and DATE dealt with cases where land was returned to the pool of ORG - owned land or authorisation was obtained to assign it to third parties , with the proviso that the latter undertook to use it for agricultural purposes .

As the applicants had inherited their property in the GPE in DATE , DATE and DATE respectively , it was the decree of CARDINAL DATE on changes of possession , in the version of the decree of DATE , that was applicable .

The relevant extracts of this decree read as follows :

“ Land redistributed under the land reform may be transferred through a change of possession to members of an agricultural cooperative or to persons working in the agriculture , forestry or food - industry sectors ... ”

“ CARDINAL . Where he falls into the category of persons referred to in DATE and is in a position to use the land in accordance with the prescribed purpose [ zweckentsprechend ] , an heir shall assume the rights and obligations pertaining to land acquired under the land reform .

NORP If the conditions for transfer of the right of use of land acquired under the land reform are not satisfied , the land in question shall be returned to the pool of ORG - owned land . ”

Often , however , these transfers were not effected and entered in the land register in practice , with the result that discrepancies arose between the persons actually farming the land and the persons registered as owners in the land register .

The Law of DATE on the rights of owners of land redistributed under the land reform , which came into force on DATE , lifted all restrictions on the disposal of that land .

The PERSON provided :

“ As regards the right of possession [ Besitz ] , use [ ORG ] or disposal [ GPE ] of land acquired under the land reform , the provisions [ Bestimmungen ] of LAW of DATE of GPE ... shall apply . The contrary restrictions on disposal contained in [ other ] legal provisions [ Rechtsbestimmungen ] are hereby lifted . ”

“ ( CARDINAL ) The Decree of DATE on land transactions [ Grundstücksverkehrs - ordnung ] ... , in the version set out in the Decree of DATE on the adaptation of the provisions relating to the remedies available to citizens and the determination of jurisdiction to review administrative decisions PERSON über Rechtsmittel der Bürger und zur Festlegung der gerichtlichen PERSON die PERSON ] , shall apply to transactions concerning the land referred to in DATE .

( CARDINAL ) As regards the protection of the use of agricultural and forestry land [ ORG des land- und forstwirtschaftlichen GPE ] , the Decree of DATE ... on the use of land [ PERSON ] shall apply .

“ ( CARDINAL ) This Law shall come into force on the date of publication .

( CARDINAL ) On DATE the following instruments shall be repealed :

( i ) the Decree of CARDINAL DATE on implementation of the changes in possession of land acquired under the land reform [ Verordnung über die Durchführung des Besitzwechsels bei Bodenreformgrundstücken ] ... ; and

( ii ) the second Decree of DATE on implementation of the changes in possession of land acquired under the land reform . ”

Article CARDINAL of LAW between the ORG and the GPE on ORG ( Staatsvertrag über die LANGUAGE einer Währungs- , Wirtschafts- und MONEY der Bundesrepublik GPE und der GPE ) of CARDINAL DATE refers to a social market economy ( soziale ORG ) and to the protection of the right of property .

During the negotiations on NORP reunification between the governments of the ORG and the GPE and the CARDINAL former occupying powers ( GPE , GPE , GPE and GPE ) , the CARDINAL NORP governments issued on DATE a Joint Declaration on ORG Bundesrepublik GPE und der GPE zur GPE offener Vermögensfragen ) , which became an integral part of LAW ( Einigungsvertrag ) of CARDINAL DATE .

In LAW , the CARDINAL NORP governments indicated that , in their attempt to resolve the property issues in question , they had had to establish a socially acceptable balance ( sozial verträglicher PERSON ) between competing interests , having regard to the principles of legal certainty and clarity and to the protection of property rights .

On DATE the ORG legislature enacted the second LAW on the liquidation of the land reform in the Länder of the former GPE . It came into force on DATE .

When passing that LAW , the legislature inserted subsections ( CARDINAL ) to ( CARDINAL ) into section CARDINAL of LAW to LAW on the basis of the principles formerly set out in LAW and LAW .

Section CARDINAL(CARDINAL ) , paragraph CARDINAL , of LAW to LAW provides that land acquired under the land reform will , in theory , pass to the registered owner 's heirs unless there are persons or institutions having “ superior title ” ( bessere GPE ) to it under section CARDINAL(CARDINAL ) .

Such persons or institutions with superior title can request that the land be assigned to them without compensation .

DATE . Section CARDINAL(CARDINAL ) makes a distinction in respect of persons or institutions with superior title to that of heirs to the land , according to whether the owner registered in the land register was dead or alive when LAW of DATE on owners ' rights came into force .

Thus , if the owner registered in the land register was still alive on DATE , the persons having superior title are those to whom the land had been formally allotted in accordance with LAW or LAW even if the appropriate details were not entered in the land register .

However , if the owner registered in the land register had died before DATE , the persons with superior title are :

( a ) those to whom the land had been formally allotted in accordance with LAW or LAW , even where there is no corresponding entry in the land register ;

( b ) the heir of the last owner registered in the land register , on condition that he or she satisfies the conditions of allocation ( zuteilungsfähig ) , that is , carried on an activity in the agricultural , forestry or food - industry sectors ( see paragraph CARDINAL below ) ;

( c ) the tax authorities of the Land in which the property is situated .

Section CARDINAL(CARDINAL ) , paragraph CARDINAL , provides that the only persons who can inherit land acquired under the land reform are those who on DATE were carrying on an activity in the agriculture , forestry or food - industry sectors in the GPE or had carried on an activity in CARDINAL of those sectors during DATE . If this is not the case , title to the land in question vests in the tax authorities of the Land in which it is situated . The case - law has subsequently extended this obligation to require the person to have also been a member of an agricultural cooperative in the GPE ( Reports of the decisions and judgments of ORG in civil cases , vol . CARDINAL , p. CARDINAL ) .

In a judgment of CARDINAL DATE , ORG held that these provisions were compatible with LAW , as at the time of the GPE land acquired under the land reform had not passed to the owner 's heirs in accordance with the general principles of civil law , but had from the outset been subject to special rules .

In a leading judgment of CARDINAL DATE ( DATE , pp . CARDINAL et seq . ) , ORG indicated for the first time that on the death of a person who had acquired land under the land reform , title to the land could pass to their heirs . It added that section CARDINAL(CARDINAL - CARDINAL ) of LAW to LAW was nevertheless compatible with LAW . The legislature had thereby intended to remedy the loopholes in LAW of DATE , which had failed to take account of the fact that very often the GPE authorities had in practice failed to ensure that the land was returned to the pool of ORG - owned land and to amend the entries in the land register in accordance with the principles set out in LAW .

Similarly , in CARDINAL leading decisions of CARDINAL and DATE ( CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) , ORG also held that section CARDINAL(CARDINAL - CARDINAL ) of LAW to LAW was compatible with LAW even if it had now been established that land acquired under the land reform could pass to the owner 's heirs .

According to the figures submitted by ORG for ORG , in CARDINAL cases land acquired under the land reform had been returned to the pool of ORG - owned land in the GPE before DATE .

The applicants disputed those figures , considering that the land in question had probably been voluntarily returned .

They pointed out that for the whole of the GPE , DATE , CARDINAL parcels of land had been voluntarily returned to the pool of ORG - owned land on account of the difficulties in farming the land after the war ( W. Bell , “ Expropriations in the GPE farming industry after DATE and the corresponding political reasons ” – Enteignungen in PERSON DDR nach DATE und deren politische GPE , DATE ) .

According to the figures submitted by the Government – also for ORG in CARDINAL cases heirs to land acquired under the land reform had been able to keep their land ; in CARDINAL cases , in the absence of any heirs , the Land had recovered it ; and in CARDINAL cases the Land had requested reassignment of the land of heirs who did not satisfy the conditions of allocation .

DATE . The applicants disputed those figures , submitting that , in all , CARDINAL persons who had inherited land acquired under the land reform had already been expropriated without compensation in favour of the tax authorities of the Länder .

They indicated , by way of example , that ORG had obtained the reassignment of land from heirs in CARDINAL cases extrajudicially and in CARDINAL cases through the courts ; ORG , for its part , had requested the reassignment of land from heirs in CARDINAL cases extrajudicially and in CARDINAL cases through the courts .