GASKIN v. THE UNITED KINGDOM
ECLI | ECLI:CE:ECHR:1987:1113REP001045483 |
Respondent State | United Kingdom |
Date | 23 January 1986 |
Application Number | 10454/83 |
Court | Commission (European Commission of Human Rights) |
Counsel | MAKIN & CO. ; Solicitors ; Liverpool |
Applied Rules | 8;10 |
Application No. 10454/83
GRAHAM GASKIN
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 13 November 1987)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-18) ....................... 1
The application (paras. 2-4) ...................... 1
The proceedings (paras. 5-13) ..................... 1
The present Report (paras. 14-18) ................. 3
II. ESTABLISHMENT OF THE FACTS (paras. 19-42) ......... 4
III. SUBMISSIONS OF THE PARTIES (paras. 43-82) ......... 9
1. The applicant (paras. 43-63) ...................... 9
2. The Government (paras. 64-82) ..................... 12
IV. OPINION OF THE COMMISSION (paras. 83-110) ........... 18
A. Points at issue (para. 83) ........................ 18
B. Is the refusal of access to the file an
interference with the applicant's rights under
Article 8 para. 1 of the Convention?
(paras. 84-91) .................................... 18
C. Is the interference justified under Article 8
para. 2 of the Convention? (paras. 91-97) ......... 19
a) In accordance with the law (paras. 92-96) ..... 20
b) Legitimate aim (para. 97) ..................... 21
c) Necessity in a democratic society
(paras. 98-103) ............................... 21
D. Conclusion (para. 104) ............................ 23
E. Does the refusal of access to the file violate
Article 10 of the Convention? (paras. 105-108) .... 23
F. Conclusion (para. 109) ............................ 24
G. Recapitulation (para. 110) ........................ 24
Partly dissenting opinion of MM. G. Jörundsson,
A.S. Gözübüyük, A. Weitzel, H. Danelius and
Sir Basil Hall ............................................ 25
Partly dissenting opinion of Mr. H.G. Schermers ........... 27
Appendix I History of the proceedings ................ 28
Appendix II Decision on the admissibility
of the application ........................ 30
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before it.
The application
2. The applicant is a British citizen born in 1959 now living in
Denmark. He has been represented before the Commission by Messrs. E.
Rex Makin & Co., Solicitors of Liverpool. The respondent Government
were represented by Mr. M. Eaton and subsequently by Mr. M. Wood, both
of the Foreign and Commonwealth Office, London, as their Agent.
3. In 1959, aged six months, the applicant was taken into care by
the Liverpool City Council ("the local authority") following his
mother's death. He remained in the local authority's care until his
majority in 1977.
4. The applicant seeks access to the file maintained on him
during his period of care by the local authority. He contends that he
was badly treated in care and originally wished to take legal
proceedings in this connection. Now, however, he wants access to the
file in order to be able to address the difficulties and personal
problems which his unsettled background, and his lack of knowledge of
his past, has created. He contends that the refusal of access to the
whole file is contrary to his right to respect for his private and
family life protected by Article 8 of the Convention and his right to
receive information, protected by Article 10 of the Convention.
The proceedings
5. The application was introduced on 17 February 1983 and was
registered on 13 June 1983.
6. On 4 July 1984 the Commission decided in accordance with Rule
42 para. 2 (b) of its Rules of Procedure to give notice of the
application to the respondent Government and to invite them to submit
before 2 November 1984 their observations in writing on the
admissibility and merits of the application. The respondent
Government's observations were submitted, after an extension of
the time-limit until 19 December 1984, on 17 December 1984, and
observations in reply were submitted by the applicant's
representatives on 22 April 1985.
7. On 8 July 1985 the Commission decided to invite the parties to
make submissions on the admissibility and merits of the application at
a hearing pursuant to Rule 42 (3)(b) of the Rules of Procedure. At
the hearing, which was held on 23 January 1986, the parties were
represented as follows:
For the Government:
Mr. M. R. Eaton Foreign and Commonwealth Office Agent
Mr. N. Bratza Barrister Counsel
Miss P. Barrett ) Adviser
) Department of Health
Mr. E. R. Moutrie ) and Adviser
) Social Security
Mr. R. Langham ) Adviser
Mr. M. Swallow Liverpool City Council, Solicitor Adviser
For the applicant:
Mr. E. Rex Makin Solicitor Counsel
Mr. Robin Makin Solicitor's articled clerk Adviser
8. On 23 January 1986 the Commission declared admissible the
applicant's complaint concerning the continuing refusal of the local
authority to give him access to the file. The remainder of the
application was declared inadmissible.
9. The parties were informed of the Commission's decision by
telephone on 24 January 1986 and by letter on 12 February 1986. They
were further informed that the Commission had decided to invite the
respondent Government pursuant to Rule 45 of the Rules of Procedure to
provide certain information concerning the nature of the file and the
restriction of access to it. The time limit for the submission of
this information was to run from the dispatch of the text of the
Commission's decision on the admissibility of the application. These
questions were communicated to the respondent Government on 25 March
1986 when the Commission's decision on admissibility was dispatched to
the parties pursuant to Rule 43 (1) of the Rules of Procedure.
10. On 18 June 1986 the respondent Government provided the
information requested by the Commission, which was forwarded to the
applicant's representatives for their comments in reply. The
applicant's representatives' comments were submitted on 28 July 1986.
11. On 13 October 1986 the Commission resumed its examination of
the merits of the application and invited the parties to submit such
further observations on the merits of the application as they might
wish to make before 2 January 1987.
12. On 2 December 1986 the respondent Government informed the
Commission that they did not wish to lodge any further observations on
the merits. On 13 January 1987 the applicant's representatives
informed the Commission that they did not propose to lodge any further
observations on the merits.
13. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement.
In the light of the parties' reaction, the Commission now finds that
there is no basis upon which a settlement can be effected.
The present Report
14. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
G. SPERDUTI
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
15. The text of this Report was adopted by the Commission on
13 November 1987 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
16. The purpose of the present Report, pursuant to Article 31
para. 1 of the Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
17. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
18. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
19. The applicant is a British citizen born in 1959 who now lives
in Denmark. In December 1959 the applicant was taken into the care of
Liverpool City Council ("the local authority") under Section 1 of the
Children Act 1948 following the death of his mother. He remained in
the care of the local authority until he attained his majority in
1977. During the major part of this period the applicant was boarded
out with various foster parents, subject to the provisions of the
Boarding-Out of Children Regulations 1955. Under the terms of those
regulations the local authority was under a duty to keep certain
confidential records concerning the applicant and his care.
20. The applicant contends that he was extremely badly treated in
care, including treatment amounting to ill-treatment, and since his
majority has wished to obtain details of where he was kept and by whom
and in what conditions in order to be able to substantiate his
allegations and to help him to overcome his problems and learn about
his past.
21. On 9 October 1978 the applicant visited the offices of the
Social Services Department of the local authority and was informally
shown his case file. It appears that the applicant managed to leave
the building with the file, which he subsequently returned on
12 October 1978.
22. In 1979 the applicant sought to bring proceedings against the
local authority for damages for personal injuries which he contends
were caused by its negligent failure to carry out its duties towards
him. In connection with these proceedings the applicant made an
application under Section 31 of the Administration of Justice Act 1970
("the 1970 Act") for discovery of the local authority's case notes and
records made during his period in care. Section 31 of the 1970 Act
provides that the High Court may order such disclosure to a person who
is likely to be a party to legal proceedings for personal injuries or
death.
23. The applicant's originating summons requesting discovery of
the case file and records came before the Queen's Bench Division of
the High Court on 22 February 1980. It was...
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