GASKIN v. THE UNITED KINGDOM

CourtCommission (European Commission of Human Rights)
ECLIECLI:CE:ECHR:1987:1113REP001045483
Respondent StateUnited Kingdom
Application Number10454/83
CounselMAKIN & CO. ; Solicitors ; Liverpool
Applied Rules8;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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