Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant, Mr Ibrahim Joesoebov, was born in Georgia in 1972 and is currently living in the Netherlands. At the time of the introduction of the application he stated that he was an Azerbaijani national. He was represented before the Court by Mr M.A. Collet, a lawyer practising in Rotterdam. The Dutch Government (“the Government”) were represented by their Deputy Agent, Ms L. Egmond, of the Netherlands Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties and some of which are in dispute, may be summarised as follows.

On 17 June 2000, the applicant reported to the Netherlands authorities for the purposes of seeking asylum. During his interviews with the Netherlands immigration authorities in the course of which he objected to assistance by an Azeri-speaking interpreter and chose to be assisted by a Russianspeaking interpreter, he stated that he was an Azerbaijani national, that he was born in Georgia – then a part of the former Soviet Union – and that he was of Azerbaijani ethnic origin. The applicant’s parents and three adult siblings, who were all born in Georgia, were living in Baku.

On 5 July 2000, the applicant filed a formal asylum request and the immigration authorities conducted a first interview with him on the same day. On 21 August 2000 the applicant filed a written account of his reasons for seeking asylum. He submitted an addition to this written account on 6 October 2000. The immigration authorities conducted a second interview with the applicant on 11 October 2000. By letter of 24 October 2000, the applicant availed himself of the possibility to submit corrections and additions to the report of this second interview.

The applicant gave the following account in support of his asylum application. He had lived in Georgia until 1989 and in Russia from 1989 until April 1993. He had received military training from 1990 to 1993 in Russia. In May 1993, following the upheaval in Russia, the applicant went to live in Baku, where he served in the Ministry of National Security of the Republic of Azerbaijan in an anti-terrorism unit, which also specialised in combating organised crime. The applicant participated in a number of operations.

In June 1993 the applicant was involved in an incident in the context of a professional assignment which resulted in him being imprisoned. He was released after two weeks following a changeover in power.

The applicant resumed his work for the Ministry of National Security, in which he was, amongst other things, involved in arresting people and handing these over to the Ministry’s investigation department, and in an undercover anti-corruption operation. He left the Ministry in October 1999.

Over the years, the applicant had become increasingly disillusioned and frustrated with the political system and the way the department where he worked was being used to suppress democracy. That department was supposed to battle terrorism and foreign interventions, but in practice it was used to arrest innocent civilians who stood in the way of a corrupt Government. He twice tried to resign but this was not accepted. In May 1999 his boss told him people could only leave the service if they retired or died. After this, his life became unbearable. His colleagues no longer trusted him. He had never held his own passport. The Ministry of National Security had held – but never given to him – a service passport for him which had been used by others on his behalf during a short stay in Turkey in 1994. He was very scared as there was nothing more powerful than the Ministry of National Security so he could turn to no-one for protection. He feared the Ministry was looking for a reason to accuse him of something.

The applicant left Azerbaijan on 6 October 1999, because on that day he was informed by a friend employed by the Ministry of Foreign Affairs that he was wanted in connection with a failed attack on a rebel leader in 1993. The applicant claimed that he was being searched for by the authorities of Azerbaijan and also that he risked a lengthy term of imprisonment because he had left the Ministry of National Security and Azerbaijan without permission and was thus considered to be a deserter.

On 29 November 2000, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request and, after an ex officio examination, further held that there were no reasons to grant the applicant a residence permit for compelling reasons of a humanitarian nature.

On 30 January 2001 the applicant lodged an objection (bezwaar) against this decision. He filed additional grounds for his objection and further documents in substantiation of his account by letters 9 and 28 February 2001, 20 March 2001, 3 and 11 April 2001, 17 May 2001, 20 July 2001 and 19 April 2002.

On 23 April 2001, the applicant requested the Regional Court (rechtbank) of The Hague to order a stay of expulsion by way of a provisional measure (voorlopige voorziening) pending the proceedings on his objection. This request was granted on 29 May 2002 by the provisional measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Utrecht, who ordered that the applicant should not be expelled from the Netherlands until four weeks after the determination of his objection.

By letter of 26 June 2002 the applicant filed further additional grounds for his objection. On 25 November 2002, he was heard on his objection before an official board of inquiry (ambtelijke commissie).

On 2 December 2002 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie), the successor to the Deputy Minister of Justice since 22 July 2002, informed the applicant that his statements gave cause to suspect that Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Convention”) might be applicable to his case, and that for that reasons his case had been transferred to “Unit 1F”. Unit 1F is a team of specialists within the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst, “IND”) who examine cases in which Article 1F of the Refugee Convention may be applicable.

By letter of 4 December 2002, the applicant informed the IND that he considered the decision of 2 December 2002 as unlawful and unjust, and urged a speedy determination of his asylum claim.

On 13 January 2003 the applicant submitted translations of a number of documents further to substantiate his account. On 5 June 2003 the immigration authorities conducted an additional interview with the applicant which mainly concerned the nature of his work for the Azerbaijani Ministry of National Security, and he was given the possibility to submit corrections and additions to the report of this interview. By letter of 23 June 2003 the applicant stated he did not wish to do so.

On 19 September 2003 the Minister for Immigration and Integration rejected the applicant’s objection and maintained the negative decision of the asylum request by holding Article 1F of the 1951 Convention against the applicant on account of his work for the Azerbaijani Ministry of National Security, which decision was based on the prescribed and so-called “personal and knowing participation” test. In this decision, the Minister further decided not to grant the applicant ex officio a residence title on account of the duration of the still pending proceedings on his asylum request (tijdsverloop in de asielprocedure). The applicant’s objection against the latter aspect of the decision of 19 September 2003 was rejected by the Minister on 18 March 2004. On 23 March 2004 the applicant filed an appeal with the Regional Court of The Hague.

The applicant’s appeal against the decision of 19 September 2003 (concerning his asylum request), as supplemented by him on 12 and 21 November 2003, 17 February 2004, 3 and 30 March 2004 and 17 and 27 September 2004, was heard on 8 October 2004 before the Regional Court of The Hague, sitting in Arnhem.

In its judgment of 10 November 2004, the Regional Court found that the Minister had correctly held Article 1F of the 1951 Convention applicable to the applicant but quashed the impugned decision for lack of sufficient reasoning in that it did not appear from that decision whether the Minister had examined whether Article 3 of the Convention would lastingly (duurzaam) stand in the way of expulsion and, if so, whether a continuous withholding of a residence permit would not be disproportionate. Accordingly it quashed the decision of 19 September 2003 and ordered the Minister to take a fresh decision on the applicant’s objection.

On the same day, the Regional Court rejected in a separate judgment the applicant’s appeal of 23 March 2004.

On 14 September 2005, an additional hearing on his objection of 30 January 2001 was conducted with the applicant before an official board of inquiry, including the question whether his expulsion to Azerbaijan would be contrary to Article 3 of the Convention.

On 13 February 2006 the applicant was notified in person of the Minister’s intention to declare him an undesirable alien entailing the imposition of an exclusion order, and he was given the opportunity to respond to this. He did so in person on 13 February 2006, as well as by letters of 13 and 24 February 2006.

By decision of 10 March 2006, the Minister declared the applicant an undesirable alien and imposed the pertaining exclusion order. The Minister noted that the applicant had been denied asylum in application of Article 1F of the 1951 Convention and that, in its judgment of 10 November 2004, the Regional Court of The Hague had accepted that decision as correct. The Minister held that the application of Article 1F of the Refugee Convention against the applicant stood in the way of his being granted a residence permit since he was to be considered as a danger to public order and that his exclusion from the Netherlands was also in the interest of the Netherlands’ international relations. The Minister lastly found that there were insufficient grounds for assuming that the applicant, if removed to his country of origin, would be exposed to a real and foreseeable risk of being subjected to treatment prohibited by Article 3 of the Convention.

In a separate decision also taken on 10 March 2006, the Minister rejected the applicant’s objection of 30 January 2001. She maintained her decision to hold Article 1F of the 1951 Convention against the applicant. As regards Article 3 of the Convention, the Minister did not find it established that the applicant, if returned to his country of origin, would be exposed to a real risk of being subjected to treatment prohibited by the this provision.

The Minister noted that the applicant had not submitted any documents in support of his claim that he was searched for by the Azerbaijani authorities for having abandoned his work for the national security agency in 1999. The Minister further noted that the applicant had submitted two documents, issued by the authorities of Azerbaijan, allegedly showing that he was being searched for in Azerbaijan. One document was a protocol, drawn up by the police on 1 May 2002, relating to the opening of a criminal inquiry into the commission of the offence defined in section 256 of the Azerbaijani Criminal Code which concerns “illegal extraction of fish and other water animals”. The other document was a summons dated 29 August 2002, ordering the applicant to hand in on that same day his passport at police station no. 5, failing which he would be held liable under section 181 of the Azerbaijani Criminal Code which concerns “burglary” defined as obtaining through violence property not belonging to the perpetrator. The Minister considered that, apart from the odd and unexplained fact that both documents had been drawn up in 2002 whereas the applicant had already left Azerbaijan in 1999, these documents did not tally with the applicant’s asylum account to the effect that he risked treatment in breach of Article 3 on account of having left his work without permission or for his involvement in the failed attack on the rebel leader in 1993. In so far as the applicant further claimed that he risked such treatment because the Azerbaijani authorities assumed that he was keeping contacts with two of his former superiors who were residing abroad and who were planning to seize power in Azerbaijan, the Minister found that this had remained wholly unsubstantiated and was based on speculations by the applicant. The Minister further rejected as unsubstantiated and not plausible the applicant’s claim that his relatives were encountering problems from the side of the authorities of Azerbaijan in order to exert pressure on the applicant.

On 23 March 2006, the applicant filed an objection with the Minister against the decision to impose an exclusion order on him. On the same day, he filed an appeal with the Regional Court of The Hague against the rejection by the Minister of his objection of 30 January 2001.

By judgment of 16 May 2006 and after a hearing held on 4 May 2006, the provisional measures judge of the Regional Court of The Hague, sitting in Dordrecht, rejected as unfounded the applicant’s appeal of 23 March 2006 and his pertaining request for an interim measure. The judge noted that, in its ruling of 10 November 2004, the Regional Court had already accepted the Minister’s decision to hold Article 1F of the 1951 Convention against the applicant. The provisional measure judge further accepted the Minister’s finding that the applicant had not demonstrated that Article 3 would lastingly stand in the way of his expulsion. Referring to constant case law of the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State), the provisional measures judge lastly held, in respect of the applicant’s reliance on the right of respect for his private life within the meaning of Article 8 of the Convention, that – given the strict separation under the provisions of the Aliens Act 2000 (Vreemdelingenwet 2000) between an asylum based and a regular residence permit – that arguments based on Article 8 could not be entertained in asylum proceedings but should be made in proceedings on a request for a regular residence permit.

In a separate ruling handed down on the same day, the provisional measures judge of the Regional Court also rejected the applicant’s request for a provisional measure (stay of expulsion) for the duration of the proceedings on his objection against the decision to impose an exclusion order on him.

On 13 June 2006, the applicant filed an appeal with the Administrative Jurisdiction Division against the judgment of 16 May 2006 in which his appeal of 23 March 2006 had been rejected. On 30 June 2006, the Administrative Jurisdiction Division declared itself not competent to examine this appeal, pursuant to article 120 of the Aliens Act 2000. It noted that the proceedings concerned a decision which had been taken before the entry into force on 1 April 2001 of the Aliens Act 2000, replacing the Aliens Act 1965. Under the latter Act no further appeal lay against a ruling of the Regional Court in asylum proceedings.

On 14 April 2008, the applicant was placed in aliens’ detention for removal purposes (vreemdelingenbewaring). In a ruling given on 6 May 2008, in unsuccessful appeal proceedings taken by the applicant concerning his placement in aliens’ detention, the Regional Court of The Hague noted that the Azerbaijani authorities had refused to issue a laissez-passer to the applicant and held that the Netherlands authorities should be given the opportunity to try to obtain the issuance of a laissez-passer from the authorities of Georgia, given the fact that the applicant had been born there.

On 27 October 2008, the Minister rejected the applicant’s objection against the decision to impose an exclusion order on him. The applicant’s appeal against this decision, including arguments based on Article 3 of the Convention, was rejected on 4 August 2009 by the Regional Court of The Hague, sitting in Dordrecht. Although the applicant could have appealed this decision before the Administrative Jurisdiction Division, he did not do so.

Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 provides as follows:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”

The application was introduced on 9 November 2006 and registered on 21 December 2006.

On 23 June 2008, at the applicant’s request, the President of the Third Section decided under Rule 39 of the Rules of Court to indicate to the Netherlands Government not to expel the applicant pending the proceedings before the Court. The President further decided, under Rule 54 § 2 (b) of the Rules of Court, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

On the basis of the applicant’s stated nationality, the Government of Azerbaijan were invited, pursuant to Article 36 § 1 of the Convention, to inform the Court whether they wished to exercise their right to submit written comments. On 10 September 2008, the Azerbaijani Government informed the Court that they wished to avail themselves of that right. The applicant and the respondent Government were informed accordingly.

On 23 September 2008, the respondent Government informed the Court of the proceedings still pending on the applicant’s challenge of the decision to impose an exclusion order on him, and requested leave to submit their observations after a final decision in these proceedings had been given. On 2 October 2008, the President accepted this request and fixed a new time-limit for the submission of the observations by the Netherlands Government, namely within six weeks after the final decision in the proceedings referred to by the Government.

On 25 September 2009, the Netherlands Government requested a further extension until 24 November 2009 of the time-limit to file observations. They explained that, as the applicant had not availed himself of the possibility to file an appeal with the Administrative Jurisdiction Division against the ruling of 4 August 2009 of the Regional Court of The Hague, sitting in Dordrecht, the latter judgment had become final on 1 September 2009 implying that the Government should file their observations within six weeks from that date. On 13 October 2009, the President acceded to this request.

The Government’s observations were submitted 24 November 2009. The applicant’s observations in reply were submitted on 14 January 2010. In those observations in reply, the applicant denied that he was a citizen of Azerbaijan and claimed that he was stateless.

On 2 February 2010, the President invited the Government of Azerbaijan to inform the Court whether or not the applicant was a national of Azerbaijan and, provided they would acknowledge that citizenship, to file any written comments they wished to make on the issues arising in the case.

On 2 March 2010, the Government of Azerbaijan informed the Court that the applicant was not a national of the Republic of Azerbaijan but nevertheless submitted written comments.

On 26 March 2010, the Azerbaijani Government were informed that, as the applicant was not a citizen of Azerbaijan, they were not automatically entitled to intervene as a third party in the proceedings on the basis of Article 36 § 1 of the Convention but, given that their comments were mainly of a factual nature, that the President had interpreted their letter of 2 March 2010 as a request for leave to intervene within the meaning of Article 36 § 2 of the Convention and had granted this request.

On the same date, the respondent Government, the applicant and the Government of Azerbaijan were invited to submit further information of a factual nature, and the President further accepted the respondent Government’s request for leave to submit additional observations.

On 27 April 2010, the Azerbaijani Government submitted the requested factual information. The respondent Government and the applicant filed additional submissions on 7 May 2010.


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr Laurence Pay, is a British national who was born in 1951 and lives in Kirkham. He was represented before the Court by Liberty, a non-governmental organisation based in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, Foreign and Commonwealth Office.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant joined the Lancashire Probation Service (“LPS”) in 1983. He quickly became involved in the treatment of sex offenders and was well regarded by his employers and the courts in respect of this work.

In October 1999, probation officers were sent a form in which they were asked to declare whether or not they were freemasons. The applicant stated that he was not a freemason but listed a number of other organisations of which he was a member, including “The House of Roissy”. This organisation subsequently became “Roissy Workshops Ltd” (hereafter, “Roissy”), of which the applicant was a director.

On 25 July 2000 Lancashire Police received an anonymous fax, in which it was claimed inter alia that Roissy advertised its services on the internet as the builder and supplier of products connected with bondage, domination and sadomasochism (“BDSM”) and the organiser of BDSM events and performances. The fax included a photograph of the applicant, wearing a mask, with two semi-naked women.

On 27 July 2000 the fax was sent by a police officer to one of the applicant’s colleagues, who brought it to the attention of LPS senior management. LPS undertook an investigation, and found that Roissy was registered at the applicant’s address and that its website included links to a number of BDSM websites, including “Birmingham Bizarre” (“BB”), which advertised various events and included photographs of the applicant and others, semi-naked, performing acts which the accompanying text indicated had taken place at a local private members’ club and involved male domination over submissive women.

The applicant was immediately suspended on full pay, on the ground that LPS had reason to believe that the above activities might be incompatible with his role as a probation officer and bring LPS into disrepute. The applicant admitted that he was involved in the performance aspect of Roissy’s activities but claimed that he had never authorised photographs of himself of the type included in the fax to be published on the internet and that the owners of the BB website had now removed the photographs at his request. Although the LPS official carrying out the investigation considered that the photographs were in the nature of soft pornography and depicted acts which were degrading to women, the applicant disagreed. The investigating official concluded that the applicant was unwilling to accept that his involvement in activities of this nature was inappropriate. She made a report to the LPS Assistant Chief Probation Officer.

The Assistant Chief Probation Officer reviewed the report and concluded that while the Roissy website itself did not contain photographs of sexual activity it was linked to other websites which did. She considered that the activities shown on the BB website were indecent and exploitative. Although she took into account the rights contained in Articles 8 and 10 of the Convention, and the applicant’s 17 years of service, she formed the view that the applicant had acted in a way which was incompatible with his job working with sex offenders and vulnerable people. She considered that the information shown on the website could be “badly misinterpreted”.

On 19 September 2000 LPS commenced disciplinary proceedings against him. Following a hearing before the Panel of the Personnel Hearings Sub-Committee (“the Panel”) on 19 October 2000, the applicant was formally dismissed on 23 October 2000. The Panel, which accepted that the applicant’s activities were not contrary to criminal law, considered, however, that, given the nature of the acts shown in the internet photographs and referred to in the Roissy advertisements, the fact that this material was in the public domain was incompatible with his position as a probation officer, particularly an officer working with sex offenders. They held that the Probation Service had a responsibility to the public to maintain confidence in the integrity of its officers and that public knowledge of the applicant’s activities would damage the reputation of the Service.

The applicant’s appeal to a differently constituted Panel was dismissed on 8 January 2001. The Panel considered whether the applicant should be given alternative employment within the Probation Service, but took the view that such a proposal would be inappropriate given the conclusion that his activities had been found to be incompatible with the role of any probation officer.

On 5 February 2001 the applicant commenced proceedings in the Employment Tribunal (“ET”) to challenge his dismissal. In its judgment of 8 August 2002, following a hearing which concluded in July 2002, the ET made the following findings of fact:

“It was clear having listened to extensive evidence from the respondent’s witnesses, and which was probed in great depth on behalf of the applicant, that the investigating officers and the disciplinary and appeal panel had very grave concerns that the activities of the applicant were incompatible with his role as a probation officer. Throughout his interviews the applicant sought to justify his activities and did not accept that these activities could be incompatible with his role as a probation officer. On each interview he sought to justify himself and was not prepared to accept that the view of his employers was a reasonably held view. It was only at a very late stage that he even suggested that he would be willing to take steps to have references to the Birmingham Bizarre website removed.”

The ET continued:

“Great play was made on behalf of the applicant that the approach of the respondents, both with its investigating officers and the disciplinary panels, were prudish and narrow-minded. ... The [ET] heard from various witnesses of their concern as to the consequences if the applicant’s activities came more fully into the knowledge of the general public. There was a concern for the general reputation of the Probation Service but there was equally a concern as to the effect of these activities upon victims of crime and in particular victims of sex crime as well as on offenders who were receiving the help of the Probation Service”.

The ET concluded that the dismissal fell within the range of responses of a reasonable employer. It further concluded that Article 8 of the Convention was not engaged because the activities in question were in the public domain and did not therefore form part of Mr Pay’s private life. Article 10 was engaged, but not infringed. The ET recognised that an employee owed duties to his employer and that the conduct of the employee should not bring the work of the employer into disrepute. The work of the Probation Service was sensitive and it was important that employees did not bring into the public domain views or activities which could have an adverse impact. It was not therefore incompatible with Article 10 to place some limitation on a probation officer’s freedom of expression and it was reasonable of the LPS to have taken the view that the activities of the applicant, taken in the round, could be damaging to it and needed to be curbed.

The applicant appealed to the Employment Appeal Tribunal (“EAT”) which dismissed the appeal in a judgment dated 29 October 2003. The EAT found that Article 8 was not applicable and saw no error in the ET’s judgment to that effect. In considering the proportionality of the dismissal under Article 10, the EAT observed that the ET had found as a fact that throughout the disciplinary proceedings the applicant had not been prepared to accept that his employers’ view of his activities had been reasonable and had only offered at a very late stage to take steps to have references to the BB website removed. The EAT continued:

“That finding reflects a dispute which arose at the [ET]. It was contended before us that the Respondent had not demonstrated that it was a proportionate response for it to dismiss the Applicant when it could have considered his severing his connections to Roissy, and opportunities for alternative work. Taking those in turn, the finding of the [ET] is amply borne out by the evidence ...

It is plain that there had been discussion between the Respondent and the Applicant about his willingness to sever his connection with Roissy entirely; but that his case was that only certain electronic links between Roissy and the BB websites had been severed. He was at no time willing to alter his connection with Roissy. That is consistent with the finding that he sought to justify his activities.

As to the possibility of alternative deployment, the respondent considered that his activities were inconsistent with any Probation Officer’s duties. ... Given the finding that the Applicant was unwilling to give up his connection with Roissy, and the Respondent’s attitude to Roissy’s activities, the possibility of alternative work would not logically arise.”

The EAT concluded that ET had committed no error of law when it decided that the dismissal had been proportionate under Article 10. On the issue of delay the EAT commented:

“Something must be said about the delays in this case. The applicant’s cause of action arose when he was dismissed on 9 January 2001. He presented an Originating Application on 12 January 2001 and so a period of 19 months elapsed before the Tribunal gave its decision. The Notice of Appeal in its original form was lodged on 18 September 2002 and we are giving judgment over a year later. Without a convincing explanation, these delays would be unacceptable. However, neither party makes any criticism of the other, nor is there any criticism by them of the Employment Tribunal or of the EAT. In those circumstances it is inappropriate for us to add anything.”

On 12 March 2004 the applicant filed notice of an application to seek leave to appeal to the Court of Appeal. This application was filed outside the 14 day time-limit and was rejected on 23 April 2004. He made a renewed application, claiming that the delay had been caused by the fact that legal aid had not been granted until 6 March. On 26 May 2004 the Court of Appeal provisionally granted the applications for leave to appeal and an extension of time, but allowed the respondent LPS 14 days to oppose this order. Lord Justice Sedley observed:

“It seems to me that there is one issue which is capable of engaging the attention of this court. Accepting, as the EAT did, that, in order to be fair, a dismissal has to be Convention compliant ..., it seems to me arguable that, properly appraised, the factors before the Employment Tribunal did not make it proportionate to dismiss Mr Pay, given that the dismissal was held to have been not for incapacity but for some other substantial reason. The substantive reason was, in effect, the damage that would be done to the good name and standing of the Probation Service were it to become public that Mr Pay, working as he did with sex offenders and their victims, was involved in an activity involving bondage and sadomasochism.

The question is not unproblematical. Under Article 8, it is debateable whether this is a matter of private life since the activities were publicised on the internet, but it does seem to me arguable that, to the extent that Mr Pay’s own sexual proclivities were in issue, they related to his private life as much as to matters he had publicised.

What perhaps is more important is the proportionality of dismissal in a situation in which the dismissal was prompted not by considerations of personal unsuitability for the job, but by legitimate considerations of adverse publicity which would rebound on the Probation Service.”

Lord Justice Maurice Kay had greater misgivings about the appeal’s prospects of success but was prepared to grant leave on the above terms.

The respondent LPS opposed the applications. On 5 November 2004 an identically constituted Court of Appeal issued a supplementary judgment, without the benefit of oral argument, in which it held that in the light of the full Court of Appeal’s judgment in X v. Y (see below), it now appeared that the applicant’s appeal had no prospect of success and there could therefore be no useful purpose in granting the extension of time.

The applicant made a renewed oral application to the Court of Appeal, which was rejected on 7 March 2005. The Court of Appeal again refused to grant an extension, since the question of principle had been decided in X v. Y. In parallel with X v. Y, there had been a waiver or forfeiture of privacy, on different grounds but with the same legal effect. Article 8 was not, therefore, engaged. Although Article 10 was applicable, the LPS had been entitled to react as it did to the consequences for it of the applicant’s exercise of his right to free speech.

Under section 94(1) of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by his employer. By section 98(1), an employer must show a reason for a dismissal falling within a category set out in section 98(2), which includes “conduct” or “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”.

Section 98(4) deals with fairness:

“Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

The applicant in the above case worked as a part time development officer for a charity which aimed to promote, through voluntary work, the personal development of young offenders and those at risk of offending in the 16-25 age group. When the applicant had been working for the respondent charity for about three years, his employers discovered that six months previously he had been arrested and cautioned by the police for having committed a consensual sexual act with another man in a public toilet. The caution came to light as a result of normal police checks made by the local Probation Service before providing further funding to the respondent. Disciplinary proceedings were taken against the applicant. He was dismissed and subsequently complained to the ET.

The ET found that it had been fair and reasonable for the respondent to treat the applicant’s conduct as grounds for dismissal. He had committed a criminal offence and shown an inappropriate lack of self control and serious lack of judgment. Given the sector in which he was employed, his failure to tell his employer about the caution was a serious matter which had undermined the respondent’s trust and confidence in him.

The applicant appealed to the EAT, contending that his dismissal had breached his rights under Articles 8 and 14 of the Convention. The EAT held that Article 8 did not apply, as the conduct, a “transitory sexual encounter” between two strangers in a public toilet, was not covered by the right to respect for private life. Article 14 did not, therefore, apply, but even if it did, the applicant had not been dismissed on grounds of sexual orientation but instead because he had committed a criminal offence and failed to disclose it.

The applicant then appealed to the Court of Appeal. The Court of Appeal proposed a framework of questions to assist employment tribunals in dealing with Convention issues in unfair dismissal cases between private litigants, but held, on the facts of the case before it, that Article 8 was not engaged, since X was dismissed for conduct which was a criminal offence and which occurred in a place to which the public had access.

Until its repeal on 1 April 2001, the duties and functions of probation officers were regulated by the Probation Service Act 1993. Section 14 provided that:

“It is the duty of probation officers –

(a) to supervise the probationers and other persons placed under their supervision and to advise, assist and befriend them;

(b) with a view to assisting the court in determining the most suitable method of dealing with a person’s case, to enquire (in accordance with any direction of the Court) into, and make reports on, his circumstances or home surrounding;

(c) to advise, assist and befriend, in such cases and in such manner as may be prescribed, persons who have been released from custody; and

(d) to perform such other duties as may be prescribed.”

In its judgment in the present case, the EAT observed:

“The modern probation service is a law enforcement agency at the heart of the criminal justice system. It aims to see that offenders receive proper punishment for their offending by the way they are supervised in the community. It works for the effective rehabilitation so they are less likely to offend in the future. Its objectives include Home Office priorities which were to challenge offenders in their behaviour, to enforce community sentences rigorously and to reduce the risk of harm from dangerous offenders. Its responsibilities include the delivery of effective programmes for supervising offenders safely in the community and upholding the interests of the victims of crime.”


Violation of Art. 6-1 (second applicant);Violation of Art. 8;No violation of Art. 14+6-1;No violation of Art. 14+8;Non-pecuniary damage - financial award;Lack of jurisdiction (injunction to State)

The first applicant, Antony McMichael, and the second applicant, Margaret McMichael, live in Glasgow. They were born in 1938 and 1954 respectively and were married on 24 April 1990.

On 29 November 1987 the second applicant gave birth to a son, A. The first applicant, who was then known as Antony Dench, and the second applicant, were living together, although at that time each had their own home. At the time the second applicant expressly denied that the first applicant was A.’s father. The child’s father was not identified on the birth certificate.

The second applicant had a history of severe and recurrent mental illness, diagnosed as manic depressive psychosis. She had first been ill in or about 1973 and had thereafter been compulsorily admitted to psychiatric hospitals on a number of occasions. While she and A. were still in hospital after the birth, Dr R., the consultant psychiatrist who had treated her since 1985, found that she was suffering from a recurrence of her mental illness. He considered that if she were to go home with A., the child would be at risk. As a result, on 11 December 1987 the social work department of Strathclyde Regional Council ("the Council") - this being the local government body having statutory responsibilities relating to the welfare of children in Glasgow and the surrounding area - applied for and were granted an order known as a "place-of-safety order", in accordance with section 37 (2) of the Social Work (Scotland) Act 1968 ("the 1968 Act") (see paragraph 50 below for an explanation as to such orders). The effect of this order was to authorise the Council to keep A. in the hospital for a period not exceeding seven days. The second applicant was informed and advised to seek legal advice.

The Reporter to the Children’s Panel for Strathclyde Region, being of the view that A. might be in need of compulsory measures of care, arranged for a "children’s hearing" to be convened, in accordance with section 37 (4) of the 1968 Act (as to the functions of the Reporter and the nature of children’s hearings, see paragraphs 46, 47, 50 and 51 below). The ground of referral of the case to the children’s hearing was that "a lack of parental care [was] likely to cause [A.] unnecessary suffering or seriously to impair his health or development", this being one of the statutory grounds provided for under section 32 of the 1968 Act (see paragraph 48 below). In support of the ground of referral, the following statement of facts was given:

"(1) ...

(2) That the parent suffers from a major psychiatric illness.

(3) That the parent refuses to take medication to stabilise her condition when not an in-patient at psychiatric hospital.

(4) That the parent has required to be admitted to psychiatric hospital on emergency basis ... on 5 June 1986, 5 December 1986 and 31 December 1986.

(5) That due to her psychiatric condition the parent is unlikely to be able to care adequately for the child."

At the children’s hearing on 17 December 1987 the chairman explained to the second applicant the reasons stated by the Reporter for the referral of the case. She indicated that she did not accept the ground of referral and, in particular, disputed paragraphs 2, 3 and 5 of the statement of facts. The children’s hearing accordingly instructed the Reporter to apply to the Sheriff Court (the local court) for a finding as to whether the ground of referral was established, in accordance with section 42 of the 1968 Act (see paragraph 54 below).

The children’s hearing also issued a warrant under section 37 (4) of the 1968 Act for A.’s continued detention in a place of safety until 6 January 1988 (see paragraph 50 below). A subsequent warrant was granted by a further children’s hearing on 5 January 1988.

On 23 December 1987 A. was discharged from hospital and taken to foster parents at Greenock, twenty-four miles from Glasgow. He has remained with them since then. On the same day the second applicant discharged herself from hospital. Arrangements were made for her to be taken three times a week for access visits to A. at the foster home, under the supervision of the social work department.

The first applicant, who also has a history of mental illness, was not included at this stage in the access arrangements. The principal reason for this was that the second applicant continued to deny that he was A.’s father and he did not himself make any claim to be the father. Other reasons were his aggressive and threatening attitude and his refusal to give information about his background.

The second applicant complained about the placement in Greenock and inadequacy of access arrangements. At first she accepted the exclusion of the first applicant, but she and the first applicant subsequently complained about that also. She failed to appear for four of the access visits between 31 December 1987 and 18 January 1988.

On 21 January 1988 the Reporter’s application for a finding on the ground of referral was heard in the Glasgow Sheriff Court. The second applicant was present and represented by a solicitor. The first applicant also attended. The Reporter led oral evidence from medical, nursery and social work witnesses, including Dr R. The first and second applicants both gave evidence. There was no documentary evidence before the court other than the ground of referral and statement of facts (referred to above in paragraph 9). At the conclusion of the hearing the Sheriff found the ground of referral established. He remitted the case to the Reporter for him to arrange a children’s hearing to dispose of the case. The second applicant did not appeal to the Court of Session (the supreme civil court in Scotland).

On an application by the Reporter and after hearing submissions on behalf of the Reporter and the second applicant, the Sheriff also granted a warrant for A.’s continued detention in a place of safety for a further period not exceeding twenty-one days.

On 27 January 1988, the social work department held a meeting known as a "child care review", to consider the case. Both applicants were present. The consultant psychiatrist, Dr R., advised that the second applicant was seriously mentally ill but was unwilling to accept treatment. It was decided that access should be terminated, though this decision would be reviewed if the second applicant’s mental state improved. The first applicant had also requested access at the meeting, claiming for the first time that he was A.’s father. Access was refused since the second applicant continued to maintain that he was not the father. The social work department also took into account his aggressive and threatening attitude and his continuing refusal to provide information about himself.

On 4 February 1988 a children’s hearing was held to consider the need for compulsory measures of care for A. The second applicant attended, with the first applicant as her representative. The hearing had a number of documents before it, including a report of 28 January 1988 on the child compiled by the social work department, reviewing the history of the case and proposing that A. continue to reside in the foster home. In accordance with the relevant procedural rules (as contained in the Children’s Hearings (Scotland) Rules 1986 - "the 1986 Rules"; see paragraph 57 below), these documents were not produced to the applicants, but the chairman informed them of their substance.

The children’s hearing decided that A. did need compulsory measures of care. They therefore made a supervision requirement under section 44 (1) (a) of the 1968 Act, placing A. under the supervision of the Council subject to the condition that he reside with the foster parents in Greenock (as to supervision requirements, see paragraphs 58 to 60 below). The decision was based, inter alia, on the mental health of both applicants, their aggressive and hostile behaviour and the second applicant’s refusal to seek psychiatric help and treatment. This decision did not make any provision as to access. In such circumstances the presumption is that parents will be given reasonable access, subject to section 20 (1) of the 1968 Act which empowers a local authority to deny access where necessary for the child’s welfare.

On 6 February 1988 the second applicant was admitted to a psychiatric hospital, initially as a voluntary patient and, as from 10 February, on an involuntary basis. She returned home in June 1988.

The second applicant (while in psychiatric hospital) appealed to the Sheriff Court against the decision of the children’s hearing. All the documents that had been before the children’s hearing were lodged with the Sheriff Court. It would appear that, in accordance with the normal procedure (as to which, see paragraph 61 below), they were not made available to the second applicant. She attended the appeal hearing on 29 February 1988, accompanied by two nurses. She was obviously under heavy sedation and was unrepresented. Following discussion, the Sheriff enquired whether she would prefer to ask for a review by a children’s hearing of the supervision requirement, rather than pursue her appeal. The second applicant agreed. The appeal was accordingly held to have been abandoned.

A review was held by the social work department on 27 April 1988. Both applicants attended, the second applicant having been allowed home on leave from the psychiatric hospital. In view of the second applicant’s improved mental state, it was decided to grant her supervised access to A. By this time, the second applicant had agreed that the first applicant was A.’s father. On 18 February 1988 his name had been added to the birth certificate. This did not, however, give him parental rights (as to which, see paragraph 43 below). At the review, the Council decided not to grant him access until he gave them information about his background, which he had so far refused to do.

Visits by the second applicant to A. at the foster home, under the supervision of a social worker, began on 26 May 1988 and continued until September 1988.

On 24 August 1988, solicitors acting for the first applicant applied to the Scottish Legal Aid Board for legal aid for an action against the Council in the Court of Session to obtain custody of A. or, failing that, access to him. The Board refused legal aid on the basis that it was unreasonable that he should receive legal aid in the particular circumstances and that it had not been shown that there was a probable cause of action. Counsel then advised the first applicant that the proposed action was incompetent and that it would be appropriate to pursue the question of access by seeking a children’s hearing to review the supervision requirement.

On 20 September 1988 the social work department held a further child care review. Neither applicant attended but the second applicant was represented by a clergyman. The department had previously held meetings with the first applicant to obtain background information about him and, with his consent, made inquiries with his doctor and the police. It was decided to allow both applicants access of three supervised visits per week at a special centre and to give assistance to them in learning parenting skills. The position was to be reassessed after three months.

Access at the centre began on 4 October 1988.

On 13 October 1988 the children’s hearing held a review of the supervision requirement. The second applicant was present and the first applicant attended as her representative. The hearing had before it a report by the social work department dated 20 September 1988, updating information on A. The report also contained a statement that the second applicant was refusing to take the medication prescribed for her, an account of the proposed arrangements for access and a recommendation that the supervision requirement should continue pending assessment of the proposed access for the next three months. In accordance with the relevant procedural rules (see paragraph 57 below), this report was not disclosed to the applicants, though the chairman informed them of its substance. The applicants had submitted a statement maintaining that in their view the ground of referral was not justified, as they had never had an opportunity to show that they could care for A.

The children’s hearing decided to continue the supervision requirement and to approve the access proposals. The hearing considered that only time would show if A.’s return to the care of the applicants was a viable prospect and that the second applicant’s mental health should be closely monitored.

The second applicant did not appeal to the Sheriff Court.

Between 4 October and 19 December 1988, the applicants made approximately twenty-three access visits to A. The social workers did not consider the visits to be a success. In reports dated 22 November 1988 by a health visitor and 23 November by a medical officer, it was stated that the applicants frequently argued before A. and displayed aggression to the staff, with the result that they were excluded from two child care centres. They appeared to be unable to accept or follow advice on child care.

On 19 December 1988 a child care review was held, at which the applicants were present. The meeting noted that no obvious progress had been made in the applicants’ ability to care for A. It was decided to terminate access visits in view of concern about the long-term effects on A. if access were to continue without any real prospect of his returning to the care of his natural parents. It was also decided to investigate the option of freeing A. for adoption. The applicants appealed internally to the District Manager of Social Services, who confirmed the decision by letter of 28 December 1988 in which he recommended them to obtain legal advice.

Following a request by the second applicant, a children’s hearing carried out a review of the supervision requirement on 20 June 1989. The second applicant was present with the first applicant as her representative. The Reporter provided the hearing with a further report by the social work department, updating the information on A. It described the problems experienced during the access period, and reported that A. was happy and developing well in his foster home and that prospective adopters were being sought. Also presented to the hearing were the documents that had been before previous hearings.

The applicants asked for access to be re-established. The hearing considered that there might be a conflict of interest between the second applicant and A. They therefore adjourned the hearing to allow for the appointment of a "safeguarder", that is an independent person to represent the interests of the child (as to which, see paragraph 53 below).

The safeguarder, once appointed, interviewed the applicants, the social workers, the foster parents and the police. His report of 18 August 1989 stated, amongst other things, that A. was being adequately cared for by the foster parents and that it was desirable that the second applicant should obtain a doctor’s opinion on her present psychiatric condition.

The adjourned children’s hearing reconvened on 5 September 1989. The applicants were present, the second applicant being represented by a solicitor. In accordance with the relevant procedural rules (see paragraph 57 below), the safeguarder’s report and the other documents before the hearing were not disclosed to the applicants, but the chairman informed them of the substance. Also before the hearing were written submissions by the applicants stating their ability to care for A. and the unfairness of judging them on the basis of three months’ intensive access. The safeguarder attended the hearing and confirmed his view that A.’s best interests would be served by his remaining in care.

The hearing concluded that the supervision requirement should continue and that there was nothing in what they had heard to convince them that they should grant access. They did not take up a suggestion by the second applicant’s solicitor to grant a further adjournment in order to obtain an independent psychiatric report on the second applicant.

The second applicant appealed to the Sheriff Court on the grounds that:

(a) the applicants had not been informed of the substance of the documents produced at the hearing;

(b) the refusal of access was based on inadequate information, in particular the lack of up-to-date information as to the second applicant’s mental health; and

(c) the refusal to adjourn the hearing for the purpose of obtaining a psychiatric report on the second applicant’s current mental health was manifestly unreasonable.

In the event ground (a) was withdrawn. At the appeal hearing on 4 October 1989 the Sheriff decided that it would have been appropriate to obtain a psychiatric report. He therefore allowed the appeal and remitted the case to the children’s hearing.

In the meantime, a psychiatric report, dated 29 September 1989, had been produced at the request of the second applicant’s solicitors. This report stated that the second applicant suffered from a recurrent mental illness, which was however in remission and which, if it recurred, would respond satisfactorily to treatment as in the past. The psychiatrist considered that access should be re-established and that A. could eventually be returned to the applicants.

A children’s hearing was held on 12 December 1989 to reconsider the case, as directed by the Sheriff (see paragraph 27 above). The hearing was adjourned at the request of the solicitor representing the second applicant, in order to allow the psychiatrist to submit a fuller report.

A children’s hearing was held on 9 January 1990, but neither applicant attended or was represented. The hearing was told that the second applicant had been declared insane and admitted to a psychiatric hospital.

A further hearing was held on 18 January 1990. Neither applicant attended or was represented. The hearing concluded that the second applicant was not well enough to have access to A. and that they could not see any future for A. with her. A condition was added to the supervision requirement that there be no access by the second applicant. The second applicant did not appeal to the Sheriff Court.

On 1 February 1990 the Council lodged with the Sheriff Court a petition to free A. for adoption.

The applicants were married on 24 April 1990. The first applicant thereby obtained parental rights in respect of A. (as to which, see paragraphs 42 and 43 below).

The petition was heard between 18 June 1990 and 27 July 1990. The applicants, as parents, refused to give their consent to adoption. They were present at the hearing. The first applicant conducted his own case, whereas the second applicant was represented by a solicitor. The documentary evidence before the court had been disclosed to the applicants. Witnesses were heard. The applicants had the opportunity to cross-examine all witnesses led by the Council, as well as to lead their own evidence.

The Sheriff delivered his judgment on 14 October 1990, the second applicant having in the meantime been re-admitted to hospital on 12 August. He decided that the applicants were withholding their consent unreasonably and that, accordingly, their consent should be dispensed with. He therefore granted the order freeing A. for adoption. His judgment contained a detailed description of the second applicant’s history of mental illness and of the problems that had occurred during access visits. His findings included the following:

"Mrs McMichael is incapable of having permanent care of the child [A.] because of the severity and unpredictability of her illness. When she is actively ill it would be unsafe for the child to be in her care.

The natural parents have no understanding of what is meant by loving and caring for a child and have demonstrated an inability either to learn such skills, or to want to learn them.

It is in the interests of the child’s welfare that he be freed for adoption. The natural parents are both emotionally and intellectually incapable of giving the child a secure and stable environment. If he were in their care he would be liable to suffer emotional deprivation and, because of their inability physically to care for him, could be in situations of danger."

The Sheriff concluded:

"In my view, there is no escaping from the conclusion that both these parents are withholding their agreement unreasonably. They are withholding their agreement because they are not parents who have begun to demonstrate their capacity to have custody. Mrs McMichael suffers from a grave mental illness which may at any time, unless appropriate medical treatment is taken, incapacitate her from looking after, not only a child, but herself. Even when her illness is not to the degree at which hospitalisation is required, she has been demonstrated as incapable of the most elementary physical and emotional capacities in parenting. The one capacity she does have, I accept, is the desire to be a parent, to have the child, but the accomplishment of that ambition is, I fear, demonstrated to be beyond her. The incapacity of the father to behave normally as a parent to the child is established by the evidence of Mrs [K. (the health visitor)] and Mrs [M. (from the social work department)], whose testimonies support the findings in fact I have made relating to access visits ..."

In December 1990 the applicants appealed to the Court of Session against the Sheriff’s decision.

The applicants were granted legal aid. Counsel and solicitors’ advice was that an appeal had no prospects of success at all and should be abandoned. The applicants did not accept this advice and continued with the appeal, without legal assistance.

The appeal was dismissed by the Court of Session on 1 November 1991. The court held that the Sheriff was justified in concluding that, because of the mental health of the second applicant and the first and second applicants’ lack of understanding how to care properly for a child, it would have been contrary to the best interests of A. to return him to the applicants’ custody.

In the meantime, on 18 July 1991, a children’s hearing had decided that the supervision requirement should continue. A similar decision was made subsequently by another children’s hearing on 9 June 1992.

At a children’s hearing held on 4 May 1993 it was announced that the foster parents with whom A. had been living since 23 December 1987 intended to adopt him. The children’s hearing decided that the supervision requirement should continue, with a condition that A. should reside with the foster parents.

On 25 May 1993 the application by the foster parents to adopt A. was granted by the Sheriff. The effect of the adoption order was to vest in the adoptive parents all parental rights and duties relating to A.

On 21 September 1993 a children’s hearing decided that the supervision requirement should be terminated, as A. had been adopted and all reports on his welfare were favourable.

Under Scots law the nature of the rights enjoyed by parents in relation to their children is governed by the common law. In respect of girls under 12 and boys under 14, parents enjoy, inter alia,

(a) the right of tutory, which can be described as the right to administer the child’s property and to act legally on behalf of the child;

(b) the right of custody, which can be described as the right of the parent to have the child living with him or her, or otherwise to negotiate the child’s residence and to control the child’s day-to-day upbringing;

(c) the right to access.

The position as to the persons who may exercise parental rights is regulated by the Law Reform (Parent and Child) (Scotland) Act 1986 ("the 1986 Act"). In general the 1986 Act abolished the legal distinctions between children born in and out of wedlock. However, in relation to parental rights a distinction persists, as appears from section 2 (1) which provides:

"(a) a child’s mother shall have parental rights whether or not she is or has been married to the child’s father;

(b) a child’s father shall have parental rights only if he is married to the child’s mother or was married to her at the time of the child’s conception or subsequently."

Section 2 (1) is in turn subject to section 3, which enables any person claiming an interest to make an application to court for an order relating to parental rights (subsection (1)). The court, which is bound to regard the welfare of the child as the paramount consideration, may not make such an order unless satisfied that to do so would be in the interests of the child (subsection (2)). The natural father of a child born out of wedlock (who is not automatically entitled under section 2 (1)) may obtain parental rights (including tutory, custody or access) under this procedure by applying to either the Court of Session or the local Sheriff Court. Where the mother consents, the matter will be dealt with expeditiously.

The arrangements in Scotland for dealing with children who may need compulsory measures of care are set out in Part III of the 1968 Act, as supplemented by subordinate legislation and, in particular, the 1986 Rules governing conduct of children’s hearings.

Under section 20 of the 1968 Act the local authority (in the present case, Strathclyde Regional Council) has a general responsibility for promoting social welfare in its area. More specifically, it has the duty to inquire into and tell the Reporter of cases of children who may need compulsory measures of care, to provide reports on children for children’s hearings and to implement supervision requirements imposed by children’s hearings.

The Reporter is appointed under section 36 of the 1968 Act by the local authority. Though employed by the local authority, he is expected to exercise his judgment independently and is separate from the local authority’s social work department. He may not be removed from office without the consent of the Secretary of State. His duties include deciding whether a case should be referred to a children’s hearing and arranging such hearings when they are necessary.

Children’s hearings decide whether a child requires compulsory measures of care and, if so, which measures are appropriate. Pursuant to section 34 of the 1968 Act, a children’s hearing consists of a chairman and two other members drawn from the children’s panel. The Secretary of State appoints a children’s panel for each local authority area. The members hold office for such period as the Secretary of State specifies; they may be removed by him at any time, but only with the consent of the most senior judge in Scotland, the Lord President of the Court of Session (section 33 of and Schedule 3 to the 1968 Act, and section 7 (1) of the Tribunals and Enquiries Act 1992). In practice members are initially appointed for a period of two years and are then usually reappointed for a further period, normally of five years. They would be removed only in wholly exceptional circumstances.

Under domestic law a children’s hearing is regarded as a tribunal. It comes under the statutory system applicable to tribunals in Scotland (paragraph 61 of Schedule 1 to the Tribunals and Inquiries Act 1992). Its members are considered to enjoy judicial immunity from proceedings for wrongful detention and defamation, in the same way as judges of the lower courts.

The children’s hearing may only consider the case of a child where it has been referred to them by the Reporter and where certain "grounds of referral" are established, either by agreement with the child and his parent or by a decision of the Sheriff Court. The grounds, as set out in section 32 of the 1968 Act, include the following:

"(c) lack of parental care is likely to cause him unnecessary suffering or seriously to impair his health or development."

Thus, in the absence of agreement, a decision by a judge on the grounds of referral, after hearing appropriate evidence, is essential before the children’s hearing can consider the case.

The Sheriff, that is any judge of the local Sheriff Court, has the following main roles in the process:

(a) to grant a warrant for continued detention of a child in a place of safety, pending a hearing, in certain circumstances;

(b) to adjudicate on whether the grounds of referral to the children’s hearing are established, where the child or his parent does not accept them;

(c) to hear appeals against decisions of children’s hearings.

As an urgent measure to protect a child before he or she can be brought before a children’s hearing, a person may be authorised by a judge to take a child to "a place of safety", as defined in the 1968 Act, in cases where there is believed to be lack of parental care (sections 37 (2) and 94 (1) of the 1968 Act). Such detention may not in any case last more than seven days. The Reporter must be notified immediately. If he then considers that compulsory care may be needed, he must arrange a children’s hearing to consider the case (section 37 (4)). If the children’s hearing cannot dispose of the case, they may issue a warrant, renewable once, requiring detention for up to twenty-one days (section 37 (4) and (5)). Thereafter the Reporter may ask the Sheriff for a warrant for further detention for a period of up to twenty-one days (section 37 (5A)). The child and his or her parents have a right to be heard before any such warrant is issued by a children’s hearing or a Sheriff.

The Reporter is under a duty to notify the parents of a child of a children’s hearing giving at least seven days’ notice. He also must provide before the first hearing a statement of the grounds of referral. He must also request from the local authority a report on the child and his or her social background, and the local authority must supply it (section 39 (4) of the 1968 Act).

A parent has the right to attend at all stages of a children’s hearing. "Parent" excludes the father of a child born out of wedlock but includes a person who has been granted parental rights under section 3 of the 1986 Act (sections 4 (1) and 30 (2) of the 1968 Act). A parent may be represented by any person of his or her choice (Rule 11 of the 1986 Rules).

Where the chairman of the children’s hearing considers that there is a conflict of interest between child and parent, he has the power to appoint a person known as a safeguarder to represent the child (section 34A of the 1968 Act).

At the first children’s hearing it must be ascertained if the grounds of referral are accepted by the child or his or her parent. If both child and parent accept, the hearing may proceed. If not, the hearing must direct the Reporter to apply to the Sheriff Court for a decision as to whether the grounds are established. Such application must be made within seven days and heard within twenty-eight days of its being lodged. The parents may appear as parties and be represented. The hearing is conducted in chambers, that is in private, in the interest of the child. Following the hearing, the Sheriff may either discharge the referral or, where he is satisfied that the grounds are established, remit the case to the Reporter. The Reporter will then make arrangements for a further children’s hearing for consideration and determination of the case (section 42 (6) of the 1968 Act).

At this stage, after discussing the case with the child, the parent or parents, any safeguarder and any representative attending the hearing, the children’s hearing must consider what arrangements would be in the best interests of the child (section 43 of the 1968 Act). They may, amongst other things,

(1) decide that no further action is required and discharge the referral;

(2) adjourn the case pending further investigations;

(3) if they consider that the child is in need of compulsory measures of care, make a supervision requirement (as to which, see paragraph 58 below).

Before the conclusion of the hearing the chairman must inform the child, parent or parents, safeguarder (if any) and representatives (if attending the hearing) of the decision of the children’s hearing, the reasons for the decision, the right of the child or parent to appeal to the Sheriff against the decision and the right of the child and parent to receive a statement in writing of the reasons for the decision. Such a written statement must then be given if requested. Any parent, child or safeguarder who did not attend must be notified in writing of the decision, the right to receive a statement of reasons and the right to appeal (Rules 19 (4) and 20 of the 1986 Rules).

Children’s hearings are required to consider any relevant information made available to them (Rule 19 (2) (a) of the 1986 Rules). Apart from the statement of grounds of referral, this information (which would include any report, document or information submitted by the Reporter) is not usually supplied to the child or his parents. However, the chairman is required at the hearing to inform the child and his parents of the substance of such reports, documents or information if it appears to him that this is material to the manner in which the case should be disposed of and that its disclosure would not be detrimental to the interests of the child (Rule 19 (3) of the 1986 Rules).

Supervision requirements are the orders of the children’s hearing imposing compulsory measures of care. One kind of requirement that may be ordered is to submit to supervision in accordance with such conditions as the children’s hearing may impose, which may include a condition that the child reside in a particular place other than a residential establishment - for example, with foster parents (section 44 (1) (a) and (b) of the 1968 Act).

A supervision requirement makes the local authority responsible for the care of the child in accordance with the requirement and gives them the necessary powers to exercise this responsibility. It does not, however, formally vest in them any parental rights of custody and does not take away parental rights. Those rights are subject to the supervisory requirements and, so far as inconsistent with those requirements, they cannot be exercised.

Thus, the right of custody cannot be exercised where a supervision requirement has required a child to live in foster care. The Court of Session has indicated in the case of Aitken v. Aitken ([1978] Session Cases 297) that while such a supervision requirement subsists it would be possible for them to award a person custody of the child, but this award would have effect subject to the supervision requirement and the person could not exercise actual custody while the supervision requirement subsisted.

As regards access, the children’s hearing is entitled to attach conditions as to access when making or continuing a supervision requirement (see Kennedy v. A. [1986] Scots Law Times 358). In the absence of any express condition, the parents will be given reasonable access. However, a local authority has the competence to terminate access where that is appropriate in pursuance of their duty under section 20 of the 1968 Act (see paragraph 45 above). The Court of Session has made it clear, in the case of Dewar v. Strathclyde Regional Council ([1984] Session Cases 102), that the courts will not adjudicate on questions of access between the parents and the local authority. If a parent is dissatisfied with the decision of a local authority as to access, it is appropriate for him or her to apply to a children’s hearing to regulate the matter by attaching a condition as to access to the supervision requirement. An appeal to the courts will then lie against the decision of the children’s hearing.

A parent has the right to request a review of a supervision requirement every six months after the last review (section 48 (4) of the 1968 Act) and can use this right to obtain a ruling on access.

The 1968 Act prescribes that a child should not continue to be subject to a supervision requirement for any longer than is necessary for his or her interest. The requirement must be reviewed by a children’s hearing -

(a) at any time if the local authority consider that it should cease to have effect or be varied;

(b) within one year, otherwise it will cease automatically to have effect;

(c) at the request of the child or his or her parent, after the expiry of these periods -

(i) three months from imposition of the requirement;

(ii) three months from any variation of the requirement of review;

(iii) six months from any other review (section 48 (4) of the 1968 Act).

The Reporter must make the necessary arrangements for such revision hearings. On review the children’s hearing may terminate, continue or vary the requirement (sections 47 (1) and 48 of the 1968 Act).

(h) Appeal against a decision of a children’s hearing

Within three weeks of a decision of a children’s hearing a child or parent or both may appeal against it to the Sheriff (section 49 (1) of the 1968 Act). This applies to all decisions.

The Reporter has the duty to ensure that all reports and statements available to the children’s hearing along with reports of the proceedings of the children’s hearings and their reasons for their decisions are lodged with the clerk to the Sheriff Court. These documents are not made available to the parents as a matter of practice.

The appeal is heard in chambers, in the interest of the child. The Sheriff must first hear the appellant or his representative and any safeguarder appointed. Where an irregularity in the conduct of the case is alleged, unless the facts are admitted by the Reporter, the Sheriff must hear evidence tendered by or on behalf of the appellant and the Reporter as to the irregularity. The Sheriff will then proceed to question, if he thinks fit, the Reporter and the authors or compilers of any reports and statements before him. He can call for further reports and statements where he thinks that this may help him. The child and parents and safeguarder are normally entitled to be present throughout.

The Sheriff will allow the appeal if he finds that there was a flaw in the procedure adopted by the children’s hearing, or that the children’s hearing did not give proper consideration to some factor in the case. Where he decides the appeal has failed, he confirms the decision of the children’s hearing. Where he allows the appeal, he may act as follows:

(a) where the appeal is against a warrant for detention, he may recall the warrant;

(b) in any other case, he has the choice of remitting the case to the children’s hearing for reconsideration or else of discharging the child from any further proceedings arising from those grounds of referral (section 49 (5) of the 1968 Act).

Pending an appeal, the child or his parents may make an application to a children’s hearing for suspension of the supervision requirement in question. The Reporter must then arrange for a hearing, which may grant or refuse the application (section 49 (8) of the 1968 Act).

The legislation governing adoption procedure is the Adoption (Scotland) Act 1978 ("the 1978 Act").

Under the 1978 Act an order declaring the child free for adoption may be made by the Court of Session or Sheriff Court. The procedure of freeing for adoption makes it possible for the child to live with the prospective adopters in the period prior to adoption without the risk of his or her being reclaimed by the natural parents.

Before making the order the court must be satisfied as regards each parent or guardian of the child that either

(a) he or she freely, and with full understanding of what is involved, agrees generally and unconditionally to the making of an adoption order; or

(b) his or her agreement to making the adoption order should be dispensed with on a number of specified grounds, which include the ground that the parent or guardian is withholding agreement unreasonably (section 16 (2) of the 1978 Act).

For the purposes of the 1978 Act the natural father of a child born out of wedlock would not be a "parent" or "guardian" except where he has subsequently married the mother or has a parental-rights order in his favour.

The effect of an order freeing the child for adoption is to vest parental rights and duties in the adoption agency (that is, a local authority or an approved adoption society) and to extinguish existing parental rights. After freeing for adoption, the child will normally live for a time with the prospective adopters and then they will seek an adoption order.

An order of the Sheriff Court freeing a child for adoption is subject to appeal to the Court of Session. On such an appeal the Court of Session can decide on the whole merits of the action. The Court of Session will normally proceed on the basis of the Sheriff’s findings of fact but is not obliged to do so. It may, where appropriate, take evidence itself or remit the case to the Sheriff with instructions as to how he should proceed.


The applicants, H.P., born in 1941, E.M., born in 1932, R.B., born in 1936, G.P., born in 1945, and M.G., born in 1943, are all Austrian nationals. They are living in Spittal/Drau, Gladbach and Möllbrücke respectively. They are represented before the Court by Mr H. Walther, a lawyer practising in Klagenfurt.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants and their brother are all children of a Carinthian farmer who died on 3 September 1993 without having left a will. After the death of the applicants’ father, inheritance proceedings commenced on 10 December 1993 when their conditional declaration accepting the inheritance (bedingte Erbserklärung) was registered by the Spittal/Drau District Court.

On 30 December 1993, 17 May, 27 June, 18 October 1994, and 20 March 1995, inheritance negotiation hearings were held by the court commissioner in the competent notary’s office. As the applicants and their brother were unable to reach an agreement, on 13 July 1995 the proceedings were transferred to the District Court which held hearings on 18 September, 23 October, 20 November 1995 and 15 January 1996. On the latter date the court ruled that the applicants and their brother had already, on 30 December 1993, entered into a valid agreement concerning the estate and appointed the applicants’ brother as the principal heir (Anerbe). The latter appealed against this decision arguing that no agreement had been reached. On 14 February 1996 the Klagenfurt Regional Court granted his appeal and referred the case back to the District Court.

The District Court continued the proceedings and took several expert opinions on the question whether the applicants’ brother was able to be the principal heir. Upon the applicants’ requests, experts were appointed on 12 July, 9 September, 21 October 1996 and 28 May 1997. On 17 June 1997 the District Court determined that the applicants’ brother was the principal heir. On 24 July 1997 the Klagenfurt Regional Court granted the applicants’ appeal and referred the case back to the District Court.

On 6 August 1997 the District Court requested an expert opinion of the Carinthian Chamber of Agriculture and Forestry (Kammer für Land- und Forstwirtschaft) on the question whether the estate fulfilled the conditions of a hereditary farm (Erbhof) within the meaning of the Carinthian Hereditary Farms Act (Kärntner Erbhöfegesetz). On 18 August 1997 the District Court found that it was a hereditary farm.

Further hearings were held on 30 September and 5 November 1997. On the latter date the applicants and their brother agreed on a settlement regulating the inheritance (Erbübereinkommen). The file was transferred to the notary and, at the hearing of 14 April 1998, the applicants and their brother agreed on a family arrangement regulating the division of the whole estate (Erbteilungsübereinkommen).

On 6 May 1998 the District Court issued the certificate putting the statutory heir in possession of the estate (Einantwortungsurkunde). Thereupon, on 25 October 1999, the inheritance settlement was entered in the land register (Grundbuch).

Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.

"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.

(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.

(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."