McMichael v. United Kingdom

Both applicants were living together as a couple and later got married. They both suffer from a history of mental illness. Mrs. McMichael gave birth to a son, A. She had a history of severe and recurrent mental illness and, on advice that the child would be at risk if he were to go home with her, the local authority obtained an order to keep him in the hospital for seven days. A. was placed with foster parents with whom he remains. Mrs. McMichael was eventually discharged from the hospital and arrangements were made for her to have access visits to her son. During an initial hearing, it was decided that the child should remain in care and made no provision for the McMichaels’ access. The hearing considered various documents, including social reports, which were not produced to the applicants nor were they informed of their substance. Eventually, the local authority sought to free the son for adoption and the Sheriff Court, holding that the applicants were unreasonably withholding their consent to it, granted the necessary order. The hearing considered various documents, including a report by the local authority, which were not produced to the applicants nor were they informed of their substance. The applicants, now married, gave evidence however the referral to the children’s hearing was confirmed. An appeal against this decision was dismissed and the foster parents were allowed to adopt the child.

The applicants complained to the Court that their inability to see confidential reports and documents submitted before the children’s hearings were in contravention of Article 6 (right to a fair hearing and to have access to information and confidential papers) and Article 8 (right to found a family) of the European Convention on Human Rights (ECHR).

The Court took note that the “sensitive domain of family law” may mean that there are good reasons to opt for an adjudicatory body that does not have the composition and procedure of a classic court of law. Nevertheless, the Court found the rights of the applicants were violated when they were denied the right to a fair adversarial trail and the opportunity to have knowledge of and comment on the observations filed by the other party. This lack of disclosure of vital documents (such as social reports) affected the outcome of the child’s hearing but also the applicants’ ability to assess the prospects of making an appeal. The applicants were consequently denied a “fair hearing” within the meaning of Article 6 § 1 of the ECHR.

The Court found it appropriate to examine of the same set of facts under Article 8, finding that the decision-making process determining the custody and access arrangements in regard to A. did not afford the requisite protection of the applicants’ interests under Article 8.

"80. As explained by the Government, the function of determining what measures of care would be in the best interest of the child has been conferred on the children’s hearing rather than the ordinary courts because the legislature believed that this function is likely to be exercised more successfully by an adjudicatory body of three specially trained persons with substantial experience of children, following a procedure which is less formal and confrontational than that of the ordinary courts. The Court accepts that in this sensitive domain of family law there may be good reasons for opting for an adjudicatory body that does not have the composition or procedures of a court of law of the classic kind (see, mutatis mutandis, the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 23, para. 53). Nevertheless, notwithstanding the special characteristics of the adjudication to be made, as a matter of general principle the right to a fair - adversarial - trial "means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party" (see the Ruiz-Mateos v. Spain judgment of 23 June 1993, Series A no. 262, p. 25, para. 63). In the context of the present case, the lack of disclosure of such vital documents as social reports is capable of affecting the ability of participating parents not only to influence the outcome of the children’s hearing in question but also to assess their prospects of making an appeal to the Sheriff Court."

"91. As to the Government's second submission, the Court would point to the difference in the nature of the interests protected by Articles 6 para. 1 and 8 (art. 6-1, art. 8). Thus, Article 6 para. 1 (art. 6-1) affords a procedural safeguard, namely the "right to a court" in the determination of one's "civil rights and obligations" (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, para. 36); whereas not only does the procedural requirement inherent in Article 8 (art. 8) cover administrative procedures as well as judicial proceedings, but it is ancillary to the wider purpose of ensuring proper respect for, inter alia, family life (see, for example, the B. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-B, pp. 72-74 and 75, paras. 63-65 and 68). The difference between the purpose pursued by the respective safeguards afforded by Articles 6 para. 1 and 8 (art. 6-1, art. 8) may, in the light of the particular circumstances, justify the examination of the same set of facts under both Articles (art. 6, art. 8) (compare, for example, the above-mentioned Golder judgment, pp. 20-22, paras. 41-45, and the O. v. the United Kingdom judgment of 8 July 1987, Series A no. 120-A, pp. 28-29, paras. 65-67).

As regards the instant case, the facts complained of had repercussions not only on the conduct of judicial proceedings to which the second applicant was a party, but also on "a fundamental element of [the] family life" of the two applicants (see paragraph 86 above). In the present case the Court judges it appropriate to examine the facts also under Article 8 (art. 8)."