András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant, Ms Marė Šedbarienė, is a Lithuanian national who was born in 1943 and lives in Tauragė.

On 10 April 2005 the applicant's son, M.Š., who was 20 years old at the time, was found dead in the grounds of a kindergarten. His body showed traces of violence. The same day, the authorities opened a pre-trial investigation on suspicion that a murder had been committed (Article 129 § 1 of the Criminal Code).

On 11 April 2005 the authorities issued the death certificate, which stated that the cause of death had been the loss of body temperature.

On 12 April 2005 the investigator requested the Mykolas Romeris University Forensic Medicine Institute (hereinafter the “MRU FMI”) to establish M.Š.'s cause of death.

On 19 May 2005 the MRU FMI's expert, D. Vitkus, in a report (no. M327/05 (03), “the first expert report”), found that M.Š.'s blood alcohol level content (BAC) and urine alcohol level content had been 2.8 and 4.9 respectively, which showed that, before his death, M.Š. had been highly intoxicated and could have died from alcohol poisoning. Given that there were no cracks in M.Š.'s skull and his inner organs had not been damaged, there was no ground to conclude that his death was the result of violence. The expert report also stated that, after sustaining the injuries, the applicant's son could have lived for a few hours and that the injuries which M.Š. had sustained would have amounted to a light health impairment for a living person.

The applicant and her lawyer contacted another expert, A. Garmus, asking if he would conduct a new expert examination. On 17 September 2005 that expert produced his report (no. A-KJ-38-51, “the second expert report”), stating that the cause of M.Š.'s death could have been (galėjo būti) a severe head injury, since M.Š. had sustained no fewer than fourteen blows to the head. The expert ruled out alcohol poisoning or loss of body temperature as possible causes of death.

On 31 August 2005 the prosecutors transferred the case to the Tauragė District Court, charging Donatas V. and Darius V. with having lightly impaired the health of the applicant's son, as well as offences of theft and robbery.

On 7 February 2006 the Tauragė District Court, on a request of the prosecutor and the applicant's counsel, commissioned the MRU FMI to conduct a new expert examination.

On 28 March 2006 the MRU FMI's experts, J. Rybalko and R. Sitienė, concluded their examination and presented their results in a report (no. EKM 42/06(01), “the third expert report”), stating that M.Š. had died from alcohol poisoning and that there was no causal link between his death and the injuries he had sustained. Furthermore, there was no evidence that M.Š. had died from a loss of body temperature.

In view of inconsistencies in the expert reports as to the cause of M.Š.'s death, at a hearing held on 18 May 2006 the applicant asked the Tauragė District Court to commission the experts who had already given their reports, as well as an expert on toxicology and a neurosurgeon, to conduct one more expert examination.

The court dismissed the applicant's request without giving any reasons.

On 22 May 2006 the Tauragė District Court convicted Donatas V. and Darius V. of slightly impairing the health of the applicant's son (Article 138 § 1 of the Criminal Code), theft (Article 178 § 1 of the Criminal Code) and robbery (Article 180 § 1 of the Criminal Code). In so finding, the court noted that, at midnight on 9 April 2005, Donatas V. and Darius V., being intoxicated and with the aim of stealing from the applicant's son, had attacked him, hitting him approximately nine times in the area of his head, face and hands. When M.Š. fell, Donatas V. and Darius V. took his jacket, wallet and two mobile telephones, and ran away.

Donatas V. and Darius V. were sentenced to three years' imprisonment.

The court also granted the applicant's claim for pecuniary damages in the amount of 360 Lithuanian litai (LTL, approximately 105 euros (EUR)).

The applicant appealed, claiming that the lower court had wrongly convicted Donatas V. and Darius V. of robbery, when they should have been convicted of manslaughter. The applicant argued, inter alia, that the trial court had restricted her right to submit evidence and make requests. Given that there were different hypotheses as to the reasons for her son's death, she requested a supplementary expert report. However, the trial court dismissed her motion. Moreover, the trial court did not grant her request to have the experts examined at the hearing. Lastly, the applicant submitted that the first-instance court had inaccurately examined the evidence and had therefore reached wrong legal conclusions.

In the meantime, the applicant's counsel approached A. Garmus with a request that, for a second time, he determine the cause of M.Š.'s death. A. Garmus consented and, on 5 July 2006, produced a new report (no. A-KI-42-52, “the fourth expert report”). The applicant's counsel presented that report to the appellate court. The report stipulated that M.Š. had died from multiple head injuries. The report ruled out alcohol poisoning as a possible cause of death, finding that the third expert report had been inconclusive and unfounded.

On 11 September 2006 the Klaipėda Regional Court examined the case on appeal and upheld the lower court's judgment. The appellate court upheld the trial court's decision not to order a new expert examination and not to summon the expert, J. Rybalko, to the hearing, since, under domestic law, an expert is to be summoned only if the court decides that his testimony is necessary to explain or to supplement a written report. The Klaipėda Regional Court also noted that the applicant's right to take part in the criminal proceedings had not been breached, given that she had had a lawyer who had attended the hearing and had been able to put questions to the accused, the witnesses and those experts who had been present before the trial court. Moreover, upon a request by the applicant, the expert, A. Garmus, had prepared his second expert report. The applicant thus actively participated in the proceedings and the principle of adversarial proceedings had not been breached.

On 13 March 2007 the Supreme Court examined the applicant's cassation appeal. Observing that the appellate court had joined the second expert report by A. Garmus to the case and yet had refused to analyse it without giving any grounds for such a refusal, the Supreme Court concluded that the appellate court had breached the applicant's right to put forward evidence and take part in the investigation.

The Supreme Court also noted that the applicant and her lawyer had asked the appellate court to summon the experts D. Vitkus, J. Rybalko and A. Garmus for questioning in open court, since they had had different views about the cause of M.Š.'s death. Nonetheless, the appellate court dismissed that request, again without explanation. The Supreme Court concluded that the appellate court had committed an essential breach of criminal procedure, restricting the applicant's rights, and had failed to deal with the case thoroughly and impartially and to adopt a fair decision. The case was remitted to the court of appeal for fresh examination.

On 5 July 2007 the Klaipėda Regional Court varied the trial court's judgment. The court noted that the experts had agreed on only one essential point, namely, that the loss of body temperature had not caused M.Š.'s death. However, they had come to different conclusions as regards the actual cause of death. For D. Vitkus, it was alcohol poisoning. For A. Garmus, the likely cause of death was a head injury. In view of diverging conclusions, it was necessary to elucidate which evidence was more reliable.

The appellate court observed that, under domestic law, it was free to assess the evidence, relying on its inner belief. Expert or specialist reports had evidentiary value because they had been drafted by a person having specialist knowledge. Whilst conceding that the judges did not have such specialised competence, the appellate court nevertheless noted that the presence of contradictory evidence was not an absolute ground for a new expert examination to be conducted.

This time, the Klaipėda Regional Court analysed the evidence which had not been examined at first instance. In particular, the appellate court studied the second expert report by A. Garmus. Experts D. Vitkus, J. Rybalko, A. Garmus and an expert in toxicology, P. Martinek, were summoned and questioned.

The appellate court noted that the experts D. Vitkus, J. Rybalko and P. Martinek, when questioned at the hearing, testified that M.Š.'s BAC had been 4.9, which was a lethal dose in medical theory. For the court, A. Garmus, when questioned, was not able to constructively contradict (konstruktyviai paprieštarauti) those expert conclusions and agreed that, had there been no sign of head injuries, the single cause of death could have been certified as alcohol poisoning.

Given the above, the appellate court concluded that A. Garmus's previous evaluation, dismissing alcohol poisoning as the cause of death, had to be rejected (visiškai paneigtas) as clearly unfounded and based on an unobjective, unilateral and tendentious evaluation of the evidence. In the opinion of the court, having examined all the material in the case file and having had recourse to all possibilities of obtaining supplementary evidence, no objective and reliable data had been established to contradict the other experts' conclusion that M.Š. had died of alcohol poisoning. At the same time, there was no reliable evidence to confirm, without a doubt, a supposition that M.Š. had died from head injuries. Consequently, when resolving the matter of the accountability of Donatas V. and Darius V., the applicant's argument that the true cause of M.Š.'s death had not been established and that therefore yet another expert report was necessary, was unfounded.

The appellate court partly amended the judgment of 22 May 2006, reducing the applicant's award for pecuniary damages to LTL 240 (approximately EUR 70).

On 22 January 2008 the Supreme Court upheld the lower court's reasoning and dismissed the applicant's cassation appeal. It observed that the appellate court had granted the request of the applicant's representative for the third expert report, had admitted in evidence the fourth expert report and examined it, had summoned and questioned the experts and had given reasons for the decision not to grant the applicant's request for yet another expert opinion. The Supreme Court concluded that the applicant's allegation that the lower courts had committed a breach of criminal procedure, because they had not collected enough evidence to establish the cause of her son's death, was unfounded.

Article 7 of the Code on Criminal Procedure provides that criminal proceedings are adversarial (laikantis rungimosi principo

On 16 January 2006 the Constitutional Court


The applicant is a Polish national, born in 1948. He is currently serving a prison sentence in Wronki prison.

In 1990 the applicant had an accident in which his right thigh and left foot were broken. Subsequently he underwent an orthopaedic operation.

On 31 May 1991 the Międzyrzecze District Court sentenced the applicant to ten years imprisonment. On 7 May 1993 the same court convicted the applicant of another offence and pronounced another prison sentence.

On 25 August 1993 the Poznań Regional Court granted the applicant a temporary suspension of the execution of his sentence and ordered his release so that he could undergo a further operation in a specialised orthopaedic hospital. The court observed that the applicant’s condition necessitated a further operation on his left foot, in particular in the light of a lack of progress in the treatment he had received. It appears that, while at liberty, the applicant did not report to a hospital. Subsequently he was rearrested and began to serve his sentence again.

On 25 March 1994 the applicant was convicted of another offence and again sentenced to imprisonment.

On 17 April 1996 the Poznań Regional Court dismissed the applicant’s request for release, considering that, according to a medical certificate, the recommended treatment could be provided by the prison medical services.

The applicant lodged two complaints with the Central Prison Administration in which he submitted that he was not afforded adequate medical treatment in Wronki prison. In its reply of 12 June 1996, the Poznań Custody Centre, to which the complaint had been forwarded for investigation, informed him that his medical records had been examined. It transpired therefrom that the applicant had been regularly receiving analgesics as he had been refusing to consent to an operation in the prison hospital. It was further stated that his complaints relating to the alleged lack of diligence on the part of the prison physicians, and in particular his allegations that the medical certificates issued by them falsified his actual condition and were thus in breach of the law, were unfounded.

On an unspecified later date the applicant complained to the Ombudsman about the allegedly inadequate medical care he received in prison.

In a reply dated 21 June 1996 the Ombudsman’s office informed the applicant that his complaint had been investigated. That Office had found that the applicant’s right to medical care was secured by the prison authorities and, in particular, that the recommended operation could be carried out in a prison hospital. The applicant was refusing consent to an operation in a prison hospital and had been seeking a temporary release on medical grounds. It was stressed that in the past the applicant had twice obtained a temporary release, but he had not undergone any treatment while at liberty.

On 3 July 1996 the Poznań Regional Penitentiary Court, sitting as a single judge, dismissed the applicant’s request for temporary release. The court stated that the applicant’s condition did not necessitate treatment in a public hospital, whereas he refused to consent to a treatment in a prison hospital. The applicant did not offer any guarantee that, if released, he would indeed undergo the required treatment as during his last temporary release in 1994 he had been heavily drinking and had committed a new offence. Since the prison medical services could provide the applicant with the recommended treatment, there were no grounds militating for his release.

The applicant lodged an appeal with the Poznań Regional Court, sitting in a panel of three judges, which was dismissed on 24 July 1996. The court had before it a medical certificate of 21 June 1996 which stated that the applicant had had his right leg broken and that, as a result of this accident, he had a so-called false joint in his foot. There were no medical indications that the applicant’s condition was incompatible with his detention and that he could not be treated by the prison medical services. The court considered that it was self-evident that the applicant’s continuous refusal to be treated by the prison medical services was in fact a ruse aimed at obtaining release. His assertions that the treatment in prison would not bring about any satisfactory results were to be regarded as lacking any reasonable basis. In the light of the applicant’s persistent refusal to co-operate with the medical services, the entire responsibility for his health was his.

The court further took into consideration the fact that, when released in 1991, the applicant had failed to report to a hospital for the recommended operation and had been drinking heavily, as shown by the fact that after he had been re-arrested, he had manifested symptoms of deprivation of alcohol, typical for alcohol addicts. Afterwards he had three times obtained temporary releases, on each occasion in order for him to follow the treatment of his orthopaedic ailment, and on each occasion he had failed to do so.

On 9 January 1997 the applicant refused to undergo a medical examination at the Orthopaedic Department of Warszawa-Mokotów prison hospital.

By a letter of 7 August 1996 the Central Prison Administration replied to the applicant’s complaint that his earlier complaint had not been adequately investigated by the Poznań Custody Center, and stated that his allegations were entirely unfounded.

On 13 August 1997 the Poznań Regional Penitentiary Court refused to release the applicant, having regard to a medical certificate, stating that the treatment of the applicant’s condition could be provided by the prison medical services.

On 24 September 1997 the Poznań Regional Penitentiary Court, having considered a medical certificate of 18 September 1997, refused to release the applicant and held that he could obtain the necessary medical treatment at the hospital of Warszawa-Mokotów prison.

By a letter of 17 November 1997 the Poznań Regional Prison Administration replied to a complaint by the applicant about the allegedly inadequate medical care extended to him. It stated that the applicant, following the 1990 accident, had pains in his left foot and right leg after long walks. He also had painful spots and a so-called false joint in his left foot. An operation, which would alleviate his problems, could be carried on in the prison hospital, but the applicant refused to give his consent. In the past the applicant had been twice granted temporary release, which was later revoked in view of the applicant’s failure to follow the recommended treatment. In view of his refusal of consent for treatment, the applicant was receiving analgesics to soothe his pain. It was further stated that the applicant’s allegations that a physician of the Wronki prison was deliberately issuing untruthful medical certificates was unsubstantiated, the more so as the head physician of the prison delivered medical certificates concerning the applicant’s condition which were consistent with those impugned by the applicant.

On 17 December 1997 the Poznań Regional Penitentiary Court refused to order the applicant’s release in view of the fact that he could obtain the necessary treatment at the hospital of Warszawa-Mokotów prison.

On 11 February 1998 the Poznań Regional Penitentiary Court refused to order the applicant’s release for the same reason.

On 29 July 1998 the Poznań Regional Penitentiary Court, taking into consideration the medical certificate of 16 July 1998, found no grounds on which to order the applicant’s release.


The applicant, Mr Claude Keslassy, is a French national, who was born in 1941 and lives in Paris. He was represented before the Court by Mr V. Delaporte, a member of the Conseil d’État and Court of Cassation Bar.

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

At the material time the applicant controlled nine private limited companies (société à responsabilité limitée – SARL), either through direct or indirect majority shareholdings, or through de iure managers appointed from members of his family or close contacts, or through the control of the premises from which the companies were operating.

By an order of 3 June 1997 a judge delegated by the President of the Paris Tribunal de Grande Instance authorised tax inspectors from the National Head Office for Tax Investigations, the Revenue Department and the National and International Tax Audit Department, assisted by tax controllers from those departments, to search and seize documents on eight sets of business and residential premises used by the applicant, his wife and the managers of the various companies concerned. Among the premises to be searched was the applicant’s home.

The order also specified the senior police officers (officiers de police judiciare) with territorial jurisdiction to assist with the authorised operations and to ensure compliance with the rights of the defence.

The order was issued pursuant to Article L 16 B of the Code of Tax Procedures following an application by the National Head Office for Tax Investigations. It stated that the aim of the searches was to seek evidence that the nine private limited companies controlled by the applicant had failed to “to calculate and pay income tax in the industrial and trading profits category, and/or corporation tax and value added tax (VAT), by engaging in purchases and sales for which no invoices had been issued and/or by issuing invoices or documents that did not correspond to genuine transactions and/or by knowingly omitting to make or to cause to be made accounting entries or by knowingly causing to be made inaccurate or false entries in the accounting records that are required to be kept by the General Tax Code...”.

Among the evidence that was cited by the judge in the order as giving rise to a presumption of fraud was a typewritten letter dated 10 March 1995 that had been sent to the Revenue Department in Paris and bore a hand-written signature and a note stating that it was from B., the manageress of C. company. In the letter B. said that she was unable to control the conduct of her brother, the applicant, who held 60% of the shares in the company, and that she had no access to the accounts. She also said that the company’s activity generated very substantial cash revenues and that the applicant was in the habit of siphoning off large sums of money from the company with which to purchase paintings.

The judge also noted that on 15 January 1997 officials from the Revenue Department had given a statement in which they said that on 31 October 1996 they had received a visit from a person who wished to remain anonymous who had affirmed that the applicant creamed off part of the income of the various companies in which he held a controlling stake of the share capital by appropriating to himself cash and cheques on which the name of the payee had been left blank. The informant had also stated that the money was used to enable the applicant to buy works of art and thus to build up a collection with a view to personal gain. Finally, the informant had added that the applicant held a customer account at Christie’s in London and gave his contacts business cards on which he presented himself as a seller of oriental paintings.

The judge also referred to previous proceedings that had been issued on a complaint by the authorities for tax fraud following an audit of the accounts of one of the companies concerned. The Paris Tribunal de Grande Instance had at the time held that the applicant was a de facto manager of the company concerned and found that it had failed to keep any accounts. Furthermore, in a judgment of 17 February 1988 the Paris Court of Appeal had found that the applicant and his wife had fraudulently failed to calculate and pay any income tax for the 1983 tax year. Lastly, in a judgment of 25 November 1994 the Paris Court of Appeal had found that the applicant was the de facto manager of another private limited company and had convicted him of working illegally.

In his warrant of 3 June 1997 the judge noted lastly:

“[The applicant] does not disclose any income...

The telephone number on the business card mentioned by the informant was allocated to [C. company] from July 1989 to July 1996...

That telephone number appeared in an advertisement that was placed with the 22/23 May 1995 edition of Le Monde...

The advertisement was for the purchase at premium prices of furniture, bronze sculptures, objects and oriental paintings and stated that commission would be paid to any intermediaries...

The inference from the advertisement is that substantial funds are available.

[The applicant] arranged for a bank account to be opened... by referring to a company registration number [numéro de SIRENE – an acronym for a computer system for the registration of undertakings and places of business, which enables all undertakings to be assigned a registration number] ... [which] does not appear on the list kept by the National Institute of Industrial Property...

He is also able to use the ... premises, receives post there and lives there with his partner, by whom he has a child...

Thus, the investigations made by the department have enabled the information obtained to be confirmed in so far as it concerns [the applicant’s] activities in the aforementioned companies.

The results of the investigation carried out largely match the information provided by the de iure manageress of C. company and the statements made by the person who attended the department’s offices on 31 October 1996...

Presumptions exist that the companies which [the applicant] controls ... reduced their business receipts by omitting to enter all its dealings in the accounts and have thus avoided calculating or paying income tax on industrial and business profits and/or corporation tax and value added tax (VAT), by knowingly omitting to make accounting entries or to cause accounting entries to be made or by knowingly causing inaccurate or false entries to be made in the accounting records that are required to be kept by the General Tax Code...

Thus the application is founded and it may be possible to obtain proof of the presumed fraudulent acts by making a search without prior warning.”

The applicant, his wife and sons, the managers of the companies and the companies themselves appealed to the Court of Cassation against the order (that being the sole remedy available to them). In particular, they argued that the letter written by B. was inadmissible in evidence and contested its origin (as only the signature was written by hand). They alleged that it could not constitute a witness statement within the meaning of Article 202 of the New Code of Civil Procedure, as it did not satisfy the formal requirements set out in that provision. They also contested the evidential value of the anonymous statement that had been referred to as, in their submission, the judge, who was only entitled to rely on previous offences or convictions for tax fraud as additional circumstantial evidence, had not identified and analysed any other information that corroborated it. They noted too that the judge had, improperly in their submission, omitted to specify the accounting years to which the presumptions of tax fraud applied. They said in conclusion that that evidence was insufficient to raise a presumption of tax fraud justifying a search of residential property and that the judge had failed to give sufficient reasons for his decision in view of his obligations under Article L 16 B of the Code of Tax Procedures.

On 23 February 1999 the Commercial, Financial and Economic Division of the Court of Cassation dismissed the appeal in a judgment in which it gave the following reasons:

“Firstly, the appellants sought in the first and fifth limbs of the ground of appeal to contest the value of the evidence relied on by the judge as proof that the application was well-founded. Their arguments do not constitute valid grounds for invalidating the order in which, by assessing the evidence that had been adduced by the authorities, the judge sought to establish whether presumptions existed that there had been unlawful conduct that warranted a search being made of all premises, including private premises, for proof thereof and the seizure of any relevant documents.

Secondly, reference is made in the order to the origin of the letter dated 10 March 1995, which was produced as Exhibit II-a. A failure to comply with the formal requirements of Article 202 of the New Code of Civil Procedure governing the production of statements in evidence in civil proceedings does not render such statements inadmissible in evidence. It is for the trial court to decide in its unfettered discretion whether a witness statement that does not comply with the formal requirements affords guarantees sufficient to satisfy it. This ground of appeal, the remainder of which the appellants devote to contesting the content of that piece of evidence, fails.

Thirdly, the anonymous statement received on 31 October 1996 is corroborated by the letter of 10 March 1995, Exhibit II-a, which was described and analysed in the warrant.

Article L 16 B of the Code of Tax Procedures does not render a warrant invalid if the judge fails to specify the accounting years concerned by the presumed fraud.

It follows from the above that none of the limbs of the ground of appeal are founded.”

At the material time, the relevant provisions of Article L 16 B of the Code of Tax Procedure (as worded prior to the enactment of Law no. 2000-516 of 15 June 2000) provided:

“I. If the judicial authority, on an application by the tax authority, considers that presumptions exist that a taxpayer is avoiding the calculation or payment of taxes on revenue or profits or of value added tax by making purchases or sales without invoices, by using or issuing invoices or documents that do not correspond to genuine transactions or by knowingly omitting to make or to cause to be made accounting entries or by knowingly making or causing to be made inaccurate or false entries in the accounting records that are required to be kept by the General Tax Code, it may, in accordance with the conditions set out in II, authorise tax officials of at least inspector rank and holding authority from the Director-General of the Revenue to that end to seek proof of such acts by carrying out searches of all premises, including private premises, where evidence and documents relating thereto may be kept and to seize such evidence and documents.

II. All searches must be authorised by an order of the president of the tribunal de grande instance for the jurisdiction in which the premises to be searched are located or by a judge delegated by him or her. The judge shall verify whether there is concrete evidence that the application for authorisation which has been made to him or her is well-founded. The application must contain all the information in the possession of the authority that may serve to justify a search. The order shall include:

(i) where appropriate, a statement that the president of the tribunal de grande instance has delegated the requisite power;

(ii) the address of the premises to be searched;

(iii) the name and capacity of the accredited civil servant who has sought and obtained authorisation to carry out the search.

The judge shall give reasons for his or her decision by indicating the elements of fact and law on which he or she relies and which raise a presumption in the case before him or her of the existence of the fraudulent acts for which evidence is sought. If during the course of the search the accredited officials discover the existence of a safe-deposit box in a financial institution in the name of the person occupying the premises searched in which items of evidence and documents relating to the acts referred to in I are likely to be found, they may, with the permission – which may be given in any form – of the judge who made the order, immediately search the safe-deposit box. A reference to such permission shall be entered in the record referred to in IV. The search and seizure shall be carried out under the authority and supervision of the judge who authorised them. To that end, he or she shall give all instructions to the officials engaged in the operations. He or she shall appoint a senior police officer to assist with the operations and to keep him or her informed of their progress. The judge may, if he or she considers it appropriate, attend the premises while the operations are under way. He or she may at any time decide to suspend or halt the search. The occupier of the premises or his or her representative shall be orally informed of the order on site when the search is carried out and shall receive a full copy of it, for which he or she shall either sign a receipt or initial the record referred to in IV. In the absence of the occupier of the premises or his or her representative, the order shall be served by registered letter with an acknowledgement of receipt form after the search has been performed. Service shall be deemed to have been effected at the date of receipt entered on the form. If the order is not received, it shall be served personally in accordance with the provisions of Articles 550 et seq. of the Code of Criminal Procedure. The time-limit and procedure for appealing shall be set out in the documents accompanying postal or personal service. The only remedy against the order referred to in the first sub-paragraph shall be an appeal on points of law in accordance with the rules set out in the Code of Criminal Procedure. Such appeals shall have no suspensive effect. For the purposes of an appeal on points of law, time shall start to run from the date of postal or personal service of the order.

III. Searches, which may not be started before 6 a.m. or after 9 p.m., shall be conducted in the presence of the occupier of the premises or of his or her representative. If that is not possible, the senior police officer shall appoint two witnesses or shall not be from his or her department or the tax authority. The tax-authority officials referred to in I may be assisted by other tax-authority officials who have been accredited in the same conditions as the inspectors. The accredited tax officials, the occupier of the premises or his or her representative and the senior police officer are the only persons authorised to see the evidence and documents before their seizure. The senior police officer shall ensure that there is no breach of professional confidence and that the rights of the defence are complied with in accordance with the provisions of the third sub-paragraph of Article 56 of the Code of Criminal Procedure. Article 58 of that Code shall be applicable.

IV. A record stating how the operation was organised and how it proceeded and recording any findings shall be compiled forthwith by the tax-authority officials. An inventory of the evidence and documents seized shall be appended to it. The record and the inventory shall be signed by the tax-authority officials, a senior police officer and the persons mentioned in the first sub-paragraph of III. Any refusal to sign them shall be noted in the record. Should it prove impractical to take an inventory on site, the evidence and documents seized shall be placed under seal. The occupier of the premises or his or her representative shall be informed that he or she may be present when the seals are broken in the presence of the senior police officer. The inventory shall be taken at that time.

V. The originals of the record and the inventory shall be sent to the judge who issued the search warrant as soon as they have been compiled. A copy of those documents shall be provided to the occupier of the premises or his or her representative...”

Article 202 of the New Code of Civil Procedure provides:

“A witness statement shall contain an account of the facts which the maker has witnessed or has personally observed. It shall state the surname, first names, date and place of birth, home address and occupation of its maker and, if relevant, any relationship by birth or by marriage to the parties, and whether the maker is in the service or employment of or has a community of interest with any of the parties. It shall also contain a statement that it has been made with a view to its being used in evidence and that its maker is aware that false testimony will render him or her liable to prosecution. The statement shall be written, dated and signed by its maker in his or her own hand. The maker of the statement shall append to it an original or photocopy of any official document establishing his or her identity and containing his or her signature.”

The trial court may, however, declare witness statements that do not comply with these requirements admissible in evidence and in such cases it will be for the trial court to “decide in its unfettered discretion whether a witness statement that does not comply with the requirements of Article 202 affords guarantees sufficient to satisfy it” (Court of Cassation, Civil Division, 29 April 1981, Civil Bulletin I, no. 143; Court of Cassation, Civil Division, 23 January 1985, Civil Bulletin II, no. 20).


The applicant was born in 1955 and lives in Bátonyterenye.

In November 1991 criminal proceedings were instituted against him.

On 18 May 1993 the Balassagyarmat District Public Prosecutor's Office preferred a bill of indictment in the case, which concerned eleven other individuals. The applicant was charged with fraud and two counts of violating foreign exchange regulations.

Between 21 March 1995 and 4 February 2003, the Eger District Court held hearings over 79 days. It heard evidence from several experts and more than 100 witnesses. On the last-mentioned date, it acquitted the applicant.

On appeal by the prosecution, on 11 December 2003 the Heves County Regional Court upheld the applicant's acquittal.


The applicants, Irina Aleksandrovna Vorsina and Natalya Aleksandrovna Vogralik, are Russian nationals, who were born in 1934 and 1947 and live in Novosibirsk.

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

The applicants are great-granddaughters of Mr Aleksandr Fyodorovich Vorsin, a prominent factory owner, one of the first brewers in the Altay Region. He founded a brewery in Barnaul in 1882.

The only surviving portrait of the grandfather was kept in the applicants’ family archives. In 1991 the applicants passed a copy of the portrait to the Altay Museum of local lore for exhibiting. The museum, in its turn, passed it to OAO “Barnaulskiy Pivovarennyy Zavod”, a joint-stock company producing beer.

The brewery produced several kinds of beer under the common brand “Vorsinskoye”—a derivative from the grandfather’s name. His portrait, obtained from the museum, was reproduced on beer bottles. The portrait was also extensively used on external advertising boards. One of the boards depicted a beer bottle (with the grandfather’s portrait on it) playing saxophone.

On an unspecified date the applicants brought an action against the brewery in the Industrialnyy District Court of Barnaul. They asked to remove the grandfather’s name and portrait from the beer advertisements because it interfered with their right to confidentiality of family life. The applicants claimed that they felt uneasy when strangers asked them about their relation to the person depicted on the beer bottles. They also claimed that they anguished at the sight of bottles—with their name and the portrait of a relative on them—littered about.

On 26 June 2000, the Industrialnyy District Court dismissed the action having found as follows:

“... The label of the ‘Vorsinskoye’ beer has not yet been registered as a trademark. The [brewery] has filed a [relevant] application...

The court considers that pursuant to section 7 § 2 of the Law on Trademarks, Service Marks and Geographic Origin of Goods, great-granddaughters, and [the applicants] in particular, cannot be recognised as heirs.

In accordance with the Civil Code, two forms of succession exist: intestate and testamentary. [The applicants] did not claim that a last will and testament had existed.

In accordance with Article 532 of the Civil Code, the testator’s grandchildren and great-grandchildren become intestate heirs if by the moment of the commencement of succession no parent, who would have otherwise inherited, is alive.

A. F. Vorsin died in 1919, at that time his son N. A. Vorsin (1875-1942) ... was alive. Therefore, A. F. Vorsin’s great-granddaughters cannot be considered as his intestate heirs.

In these circumstances, the court considers that section 7 § 2 of the Law on Trademarks cannot be applied to the present case even by analogy.

In their statement of action [the applicants] claimed that they had made a copy of the portrait of the great-grandfather and had given it to the Altay Museum of local lore.

Pursuant to section 35 of the Law on Museum Stock and Museums, items and collections included in the museum stock of Russia and held in Russian museums shall be open for public access.

Pursuant to section 36 § 2 of the same Law, the production of graphic and printed merchandise, souvenirs and other replicated material and consumer goods with the use of images of museum items and collections, museum buildings and objects located on museums’ premises, as well as with the use of museums’ titles and insignia is to be carried out with the consent of the museums’ administration.

When applying for registration of the trademark [the brewery] did receive the permission of the museum for the reproduction of Mr Vorsin’s portrait in the label of the ‘Vorsinskoye’ beer.

The information about the Vorsin family of merchants, their photographs, were published in local lore publications ... and thus made publicly known. The same can be said about the portrait which was exhibited in the museum.

The explanatory dictionary by Ozhegov and Shvedov understands ‘secret’ as (1) something undiscovered, not yet known; (2) something concealed from others, not known to many.

The court takes the view that the defendant did not breach [the applicants’] right to the secrecy of their family life. The court draws a similar conclusion in respect of the alleged infringement of the inviolability of [the applicants’] private life. According to the Ozhegov dictionary, ‘inviolable’ means complete, immune from any encroachment. The court considers that the use of Mr Vorsin’s name and portrait in no way encroaches on [the applicants’] private life since this information is known to the general public...”

On an unspecified date, the applicants filed an appeal against the judgment. They argued that the lack of registration of the trademark should not have been considered as an obstacle to the application of the Trademark Law. According to the applicants, the Trademark Law provided a regulation of similar situations, and therefore it should have been applied by analogy. The applicants also claimed that the Trademark Law did not specify the notion of “heir” separate from that described in the Civil Code, and that the moment of the commencement of succession had been of little importance since the right infringed—the feeling of kinship—was of a non-pecuniary nature. The applicants maintained also that the fact that they had passed a copy of the portrait to the museum in no way implied their consent to see it on beer bottles.

On 30 August 2000, the Altay Regional Court disallowed the appeal on the following grounds:

“... Articles 527-561 of the Civil Code permit the conclusion that succession usually extends to the right of property and other property interests which make part of contract, copyright and inventor obligations.

At the same time, heirs may also inherit certain non-pecuniary rights ... if the law so stipulates.

However, the [trial] court was correct in assuming that [the applicants] could not be considered as heirs.

The [appeal court] can neither accept [the applicants’] argument that their family secret, guaranteed and protected by Article 23 of the Constitution, had been disrespected. The [trial] court assessed these arguments and the [appeal court] upholds this view.

A.F. Vorsin is a prominent figure, the founder of beer production in the Altay Region, and this well-known fact cannot be regarded as a family secret. [The applicants] and [the brewery] have a dispute in connection with the right of reproduction of the portrait of A.F. Vorsin in [the brewery’s] trademark. The current legislation does not impose such restrictions.

The reproduction of the great-grandfather’s portrait in the trademark of OAO “Barnaulskiy Pivovarennyy Zavod”, which was founded by A.F. Vorsin, does not infringe or prejudice [the applicants’] personal non-pecuniary interests. The information about A.F. Vorsin is not only the family’s asset, but is also part of the public domain as information about a famous businessman of the Altay Region...

The fact that the great-grandfather’s portrait existed in one single copy in [the applicants’] possession does not mean that their family secret was breached.

[The applicants] by their own initiative passed a copy of the portrait to the Museum of local lore, and [the brewery] obtained, in accordance with [section 35 of the Law on Museums], a permission of the museum to use the portrait...”


CASE OF P., C. AND S. v. THE UNITED KINGDOM

Violation of Art. 6-1;Violation of Art. 8 in respect of removal of child at birth;Violation of Art. 8 in respect of procedures concerning care and freeing for adoption orders

Gaukur Jörundsson;Jean-Paul Costa;Nicolas Bratza

P., born in 1958, is a citizen of the United States of America; C., the husband of P., was born in 1962 and is a United Kingdom citizen; S., their daughter was born in 1998 and is a United Kingdom and American citizen. They are all resident in the United Kingdom.

In January 1976 P., then living in the United States of America, gave birth to a son A. shortly before her eighteenth birthday. In 1980 P. married her first husband and had a second son B. in February 1985. In 1992 she and her husband separated. Both parents contested custody of B.

Between December 1990 and January 1994 B. was referred to his general practitioner for some forty-seven complaints.

In March/April 1993 B. was taken for examination to hospital on numerous occasions for complaints of diarrhoea and fever, and on each occasion he was found to be in a normal condition. When on 18 April 1994 B. was admitted to hospital, a laboratory stools test indicated the presence of phenolphthalein (a laxative). The doctor was satisfied that P. had been responsible for laxative poisoning and reported the matter.

On the same date the Californian authorities took B. into protective custody, alleging that P. was harming her son, then aged 9, by administering laxatives to him inappropriately. He was suspected of being a victim of induced-illness abuse, the syndrome known variously as Munchhausen syndrome by proxy (“MSBP”), fabricated or induced illness, illness-induction syndrome or paediatric falsified condition. MSBP is a label sometimes used to describe a form of psychiatric illness, mainly found in women, who seek attention by inducing illness in their children or inventing accounts of illness in their children, and by repeatedly presenting their children to the medical authorities for investigation and treatment.

On 23 August 1994 a Californian court ordered that B. live with his father. Following this placement, B. did not suffer from any acute or abnormal diarrhoea. At a hearing in September 1995, the court approved supervised contact between P. and her son B. once a month for two to four hours for the following three years. P. was informed that, if she wished increased contact, it could be envisaged in a supervised, therapeutic context.

P. was charged with cruelty towards B. and endangering B.'s health, a felony offence under section 273A(a) of the Californian Penal Code. A report prepared by Dr Schreier stated that P. suffered from MSBP and that she had victimised B. over several years, causing him severe diarrhoea, possibly vomiting, weight loss and multiple non-trivial procedures and hospitalisations. On 4 October 1995, after a five-week trial before a jury in the Superior Court of California, she was convicted of a misdemeanour under section 273A(b), a lesser offence, and acquitted of the felony. On 17 November 1995 she was sentenced to three years' probation and three months in custody, subsequently suspended. She was also ordered to enter and complete a “psychological and psychiatric treatment programme”.

During the divorce proceedings, P. was required to have therapy as a condition for getting custody of B. and saw a therapist from 1992 until the end of 1993. From late 1992 she was prescribed an antidepressant by a psychiatrist whom she saw regularly to review the medication. She also consulted with psychiatrists during the criminal trial. From about April to December 1995, she saw a psychologist twice a month for therapy.

On 2 May 1996 the Californian family court reduced contact to one supervised occasion per month. It was ordered that any additional contact visits would have to occur in a therapeutic setting with a doctor present. Her appeal against this was dismissed.

During 1996 P. met her present husband, C., a qualified social worker who was studying for a doctorate in philosophy and researching into cases of women wrongly accused of MSBP.

In November 1996, in breach of the probation order, P. came to visit C. in the United Kingdom. P. and C. were married in September 1997 in the United Kingdom. P. discovered shortly afterwards that she was pregnant.

Rochdale Metropolitan Borough Council (“the local authority”) became aware of the pregnancy after P. had taken steps with a view to obtaining an annulment of her previous marriage and her ex-husband had informed the district attorney in California who in turn made contact with the authorities in the United Kingdom, giving information about P.'s conviction for harming her son B. The local authority was informed of the pregnancy by P.'s doctor and commenced an investigation.

Social workers were in contact with P. and C. from January 1998. A letter was sent to arrange a meeting. Prior to the proposed meeting, there were several exchanges on the telephone. C. considered that the social services should provide more detailed information before a meeting took place and made a list of requirements regarding access to files and copies of documents. Tension arose when the social worker requested that P. give her date of birth in order to confirm that she was the person concerned in the information from the United States. P. initially refused to give this information. The proposed meeting was cancelled.

On 21 January 1998 the applicants' solicitors wrote to the social services requesting that they provide information to both themselves and P. directly, concerning, inter alia, the reason for the proposed meeting, details of any information in their possession, forms for applying for access to social-work files, specific details of child protection concerns in the case and a list of every person with whom P. had been discussed.

On 28 January 1998 a meeting took place attended by P. and C., social workers and the police.

There was further correspondence between the local authority and the applicants' solicitors concerning the appointment of an expert to assess the risk to the unborn child, pursuant to section 47 of the Children Act 1989 (“the section 47 assessment”). By letter dated 17 February 1998, the local authority's solicitors noted that the applicants were not happy with the proposed expert, Dr Bentovim, and requested further details of any objections. They pointed out that the person suggested by the applicants was not an expert in MSBP and requested details of the other proposed experts.

On 18 February 1998 the local authority made contact with Dr Eminson, a consultant child and adolescent psychiatrist who had been proposed by the applicants, with a view to her undertaking an assessment.

By letter dated 13 March 1998, the local authority's solicitor referred to a letter of 11 March 1998 by the applicants' solicitors. It was pointed out that, as there were no care proceedings in train, there was no obligation on the local authority to agree a letter of instruction for the expert with the applicants. At that stage, all that was required was P.'s agreement to see the expert. The view was expressed that it was for the local authority to decide what documents to submit to the expert, although they would have no objection to the applicants' providing extra documentation. Although they wished to work in cooperation with P., they could not allow her to dictate the course and conduct of the section 47 assessment.

On 2 March 1998 a case conference was held by the local authority attended, inter alia, by social workers, P.'s general practitioner, a health visitor, a midwife, P. and C., P.'s solicitor and the paternal grandmother of the unborn child. The minutes of the meeting state that the reason for the conference was that P. had a conviction which led to concern that her child might be at risk of induced illness/injury after it was born. It was noted that P. disputed details of the background to her conviction, claiming, inter alia, that there was evidence of her son B. having had diarrhoea as she alleged. C. was noted as accepting that the existence of a conviction could give rise for concern but not that it automatically meant his wife suffered from MSBP, alleging that there was no direct evidence of any harm having been inflicted by her. Due to the concern that P. suffered from MSBP, it was decided to place the child on the Child Protection Register at birth and to undertake a full risk assessment.

On about 16 March 1998 Dr Eminson agreed to act as expert in the assessment to take place.

On 18 March 1998 the applicants' solicitors wrote to the local authority, pointing out that their request for an agreed letter of instruction and the list of documents given to the expert was based on good practice and procedure and that, although there were no care proceedings, they had assumed the same principles would be applied. They stated that P. could not be expected to go into a meeting blind to the specific points the doctor had been asked to address and that they needed a list of documents in order to assess whether they wished to provide the expert with anything further.

By reply of the same date, the local authority's solicitor stated that a section 47 assessment procedure was at the entire discretion of the local authority and that different principles applied than in care proceedings. However, they were prepared to disclose the list of documents sent to Dr Eminson and set out the questions which they would ask her to address.

On 25 March 1998, in discussions between the applicants' solicitors and the local authority, it was indicated that the applicants were no longer happy with Dr Eminson.

On 1 April 1998 the local authority held a case conference to review the situation. It was found that the parents had not cooperated with the local authority assessment, or that their cooperation was superficial. A combination of excuses and evasiveness had made it impossible to hold more than one meeting. There still appeared to be a complete denial about events in the United States. The local authority's solicitor had spoken with the district attorney involved in the case in California and reported a number of allegations, including the concern that P. suffered from MSBP as shown by her own medical history, that C. had impersonated a therapist in trying to convince P.'s probation officer that she was complying with an order and that P. had harassed Dr Shreier and the district attorney by telephone calls. It was noted that P. and C. were unwilling to see the expert proposed by the local authority. It was decided to take out an emergency protection order at the child's birth as there was

“reason to believe that the baby would be at risk of significant harm if left in the care of his/her parents; there has been no genuine cooperation from the parents and it would be impossible for the Social Services... to manage the risk without legal jurisdiction which includes removal in the first instance. An application for interim care proceedings would require notice and [there were] reasons to believe that the parents would evade the authorities”.

The address of the foster placement was to be kept secret to avoid harassment or an attempt to remove the child. The parents were to be told about the intention to take legal action in general terms.

On 7 April 1998 the applicants' solicitors confirmed that P. and C. would see Dr Eminson. They attended an appointment on 28 April 1998.

On 8 April 1998 Dr Schreier wrote to the local authority, expressing grave concern and recommending the removal of the baby at birth and strict supervision of contact as there was a high level of risk of harm from P.

On 30 April 1998 the local authority was approached by C.'s mother, asking whether the child could be placed with her. The local authority decided to raise the matter with Dr Eminson as part of her assessment.

Notes dated 6 May 1998 of a discussion between the assistant director (social services) and Dr Eminson included the doctor's view that the basis upon which to work with the parents was extremely limited given the absence of acceptance/agreement about concerns over the unborn baby or the past history in America. She had found that the parents were not prepared to discuss the real issues with her, that C. was mainly interested in the battle with the authorities and that the couple showed little concern for or awareness of the key issue, that of the safety of the unborn baby. Although a definitive conclusion was difficult, the risk factors were not in her view sufficiently worrying to justify not telling the parents about the proposed application for an emergency protection order at birth. While the possibility of further assessment with the couple and newborn baby at a residential facility was not ruled out, this was not possible at that time due to the limited degree of cooperation and commitment of the parents.

By 30 April 1998 it was becoming likely that, due to the lie of the baby, P. would have to have a Caesarean section instead of the planned delivery at home. The midwife reported that the consultant Dr Maresh wanted P. to be admitted on 6 May 1998 for an elective Caesarean, but that P. had refused and gone home. The midwife was noted in the social-work records as having become very angry with P. and C. for resisting medical advice and, later, for having claimed that they had been lucky to get a live baby.

On 7 May 1998, at 4.42 a.m., S. was born by Caesarean surgery. C. had brought P. to the hospital when her waters broke at home.

The local authority applied for an emergency protection order at about 10.30 a.m. They contacted the hospital concerning the possibility of staff supervising the baby at the hospital. After discussions, it was confirmed to the local authority by the hospital management that, even with security measures, they could not guarantee the baby's safety. The Government stated that the hospital was concerned by the difficult behaviour of a friend of P.'s who demanded to be present during the operation and had to be threatened with removal by security guards, and the aggressive attitude of P.'s friends and family towards staff after the birth. The applicants have stated that there is no evidence for these allegations in the records. Notes in the hospital records indicated that at 3.30 p.m. Dr Maresh had stated that he would prefer the visit of the social workers to be deferred, as the news might upset P. and cause a rise in blood pressure.

At about 4 p.m. it was decided to serve the emergency protection order on the applicants with a view to removing S. to foster care. According to the Government, C.'s mother refused to allow S. to be removed and C.'s father threatened to follow the social workers and the baby. Safe departure from the hospital was only achieved with the assistance of the hospital staff. The applicants stated that there was no evidence for this in the records, although they accepted that the family were very upset when S. was removed, and C.'s mother pleaded with the social workers not to let S. go to strangers.

A contact visit was arranged on 8 May 1998, attended by C. and his parents. While social services had considered taking S. back to the hospital for visits while P. was an inpatient, it was felt that it was not in the interests of S. as a newborn baby to be transported on a trip of some twenty-five to thirty miles.

P. remained in the delivery unit due to concerns about her blood pressure. It was noted by her consultant that she was very clearly distraught about events. She was prescribed drugs to suppress lactation and anti-hypertensive medication. She was discharged on 10 May 1998.

The local authority meanwhile applied to the court for a care order under the Children Act 1989.

P. and C. were allowed supervised contact with S., initially three times a week. The first visit occurred on 11 May 1998. P. and C. applied for more access and were supported by the guardian ad litem appointed by the court to represent S. Contact increased to four times a week from 15 June 1998. S. also had contact with her maternal and paternal grandparents.

P. and C. developed an excellent relationship with their baby daughter S. The notes made by the supervising officials were positive and complimentary. The paternal grandparents were also observed to have a caring and attentive relationship with her.

On 13 May 1998 the local authority suspended the assessment of the paternal grandparents which had commenced after their approach to the local authority on 30 April 1998. This was to await the directions of the court, as advised by their counsel. The grandparents were advised of this on 14 May 1998.

On 14 May 1998 the case was transferred from the county court to the High Court on grounds of complexity.

Dr Eminson issued her report on 29 June 1998, stating that in order to assess the risk to S. it would be necessary to obtain, inter alia, a psychiatric assessment of P. and her capacity to change and a comprehensive social work assessment of each family member, including the grandparents, as regards their capacity to care for and protect S.

On 31 July 1998 the timetable for the proceedings was set by a circuit judge and the hearing date fixed for February 1999. It was directed that the assessment of the grandparents should be undertaken by an expert but that the local authority should provide the factual background.

In a report dated 21 September 1998, a social worker recorded the factual investigation into the paternal grandparents.

In his report dated 28 September 1998 for the guardian ad litem appointed by the court to represent S., Dr Davis, a consultant paediatrician, found, inter alia, a clear and chronic pattern including unexplained symptoms suggesting that P. suffered from a severe illness; a definitive episode of poisoning; non-appearance of symptoms when the child was supervised by others and resolution of the health problems in the child after separation from the mother; extensive inaccuracies and inconsistencies by P. when repeating her history to different doctors; and exceptionally frequent medical attendance by mother and children. His opinion was that B., and to lesser extent A., had been victims of child abuse on the fabricated illness spectrum. The tendency to fabricate appeared to be ongoing (references were made to P.'s conduct during her pregnancy with S.: she had, for example, complained of ulcer symptoms but no ulcer was found, and she had referred to a stomach tumour which was presumably a besore [A condition caused by the swallowing of hair and the biting of hair and nails] removed in 1994). His view, strongly expressed, was that the risks to S. of rehabilitation with P. outweighed the advantages.

On 17 and 18 November 1998, the local authority informed P. and C. of their intention to apply for a freeing for adoption order under the Adoption Act 1976.

On 26 November 1998 Dr Maresh, P.'s obstetrics consultant, gave a statement indicating that it was clear to him that P. was aware that there was a strong possibility that her baby would be taken away from her at birth and that this made it difficult for her to stay at the hospital. He noted that during her pregnancy the number of assessments that P. was undergoing had sometimes interfered with the making of ante-natal appointments.

On 10 December 1998 Dr Bentovim issued his psychiatric report.

(i) It was noted that, during his meetings with P., she had been superficially cooperative. She had considered that the test which found a laxative in B.'s stools could have been a false positive. She accepted that B. had been hospitalised too often and that she had allowed emotional harm to come to him. Her explanation was that she had been a victim of the divorce process and suffered considerable financial stress. The only statement by P. in which she appeared to take responsibility for exaggerating B.'s illness was when she said that she had exaggerated the number of loose stools that he had had. There was a sense of evasiveness and minimisation, even a degree of trivialisation of what was discussed. It was difficult to tell whether some events referred to by P. were a constructed reality or had really happened.

(ii) As regards C., his research attempted to show that health practitioners sometimes developed a perspective where they created the notion that the parent was inducing illness in a child, thus demonstrating the misuse and fallibility of medical authority. C. had stated that there was nothing to suggest that P. would harm S. He was prepared to look after S. alone if necessary. Together, P. and C. had stated that they would undertake any therapeutic work with a view to obtaining care of S. without, however, acknowledging that there was a problem as far as P. was concerned.

(iii) As regards the paternal grandparents, they tended to agree with the parents' analysis of the situation and found it hard to face up to the fact that P.'s actions had given rise to major concerns about her potential to harm. There were positive factors in their favour (such as their commitment and desire to protect S.). However, the main problem if S. were placed with them would be their age when S. reached her adolescent phase of development.

(iv) The report found that P. had a personality disorder, including a factitious disorder, as disclosed by her gross exaggeration of having had ovarian cancer and statements about miscarriages as well as the fabrication and exaggeration of B.'s symptoms. While P. had indicated a willingness to accept therapeutic work, which would have to be prolonged and required considerable motivation to change, she had not accepted how extensive such change needed to be. As regarded a possible referral to the Cassell Hospital, it was noted that this would require considerable commitment on the part of both parents. Although the couple had indicated a willingness to enter such a therapeutic setting, P.'s level of motivation was limited. It might, however, be advantageous for P. to be admitted to a special clinic for a further detailed assessment of whether a referral to Cassell Hospital would be appropriate.

(v) The report concluded that C. was not himself a direct risk to S. but was so indirectly. He embraced his wife's views and had a limited understanding of the local authority's concerns. Similarly, the grandparents would be protective of S. if she were placed in their care but, as they would be in their 70s when S. was 14 years old, they would have increasing difficulties in meeting her growing emotional needs. It was therefore difficult to consider them as possible long- or short-term carers because S. needed to be in a secure long-term placement by her first birthday. As regards contact, the fact that the fabrication of symptoms was not life-threatening meant that contact would need less rigorous supervision than in the case of more life-threatening abuse.

On 16 December 1998 the local authority made an application to free S. for adoption.

The local authority care plan dated 13 January 1999 stated that placement of S. with both parents would pose a serious risk to her. As the circumstances in which C. intended to offer to care for S. on his own were unclear, the concerns about her protection remained. Regarding the paternal grandparents, it was noted that they had not shared the concerns in respect of the risk to S. if she were placed with her parents, and that Dr Bentovim did not support placement with them, particularly because of their age. The local authority's view was that the care plan for S. should be permanent, secured by adoption, and that she needed to be placed with an adoptive family as soon as possible.

At a hearing, which began on 2 February 1999 and ended on 1 March 1999, the High Court heard the local authority's application for a care order in respect of S. The local authority informed the judge that there were nine families available and wanting to adopt S. P. and C. were parties, as were S.'s paternal grandparents, while S. was represented by a professional guardian ad litem, solicitors and both senior and junior counsel.

On 4 February 1999 C. applied for leave to withdraw from the proceedings, on the ground that he saw no prospect of success in obtaining custody of S. and that the stress of the proceedings was likely to lead to a breakdown in his health. On 5 February 1999 the judge granted him leave to withdraw. C.'s parents also withdrew from the proceedings.

On the same date P.'s legal representatives (leading counsel and solicitors) withdrew from the case, informing the judge that her legal aid had been withdrawn. It was later stated by the judge that they had withdrawn because P. was asking them to conduct the case unreasonably. In fact, her legal aid had not withdrawn, as the judge made clear in his judgment. The legal-aid certificate could not be formally discharged until P. had been given the opportunity to show why that should not happen.

P. asked for an adjournment until 9 February 1999, which was granted. On that date P. asked for a further adjournment in order to apply for the reinstatement of her legal-aid certificate.

The judge refused the adjournment. As a result of this decision, P. conducted her own case, assisted by a “McKenzie friend”, Mrs H. The applicant stated that she found conducting her own case immensely difficult. At one stage, she told the judge that she simply could not continue because she was so distressed. That was after cross-examining her own husband C., which she found very painful. However, the judge said that she should carry on. The solicitor for the guardian ad litem and a social worker visited P. that evening to persuade her to carry on.

In his judgment, the judge explained his refusal of an adjournment:

“In the first place I was satisfied that the mother had a very clear grasp of the voluminous documentation, at least as good and if not better a grasp than the lawyers in the case. Secondly, it was clear to me from the documents that the mother, who is an intelligent woman, was fully able to put her case in a clear and coherent way, an assessment that has been amply borne out by the hearing itself.

Thirdly, I was confident that the Bar, in the form of leading and junior counsel for the local authority and the guardian ad litem, would not only treat the mother fairly but in the tradition of the Bar would assist her in the presentation of any points she wished to advance, in so far as it would be professionally proper for them to do so. Once again that assessment has been fully justified by the conduct of counsel during the hearing. As examples, the local authority both facilitated and paid for the attendance of Dr Toseland, consultant toxicologist, to attend as part of the mother's case. Junior counsel for the local authority ... struggled manfully to ensure that the mother had a complete set of the ever growing documentation. There were other examples.

Fourthly, the outcome of the case seemed to me to hinge or be likely to hinge substantially on the mother's cross-examination, an area of the case in which the ability of lawyers to protect her was limited.

Finally, and most importantly, I was concerned about the prejudice to [S.] of what would have had to have been a very lengthy adjournment. Section 1(2) of the Children Act expresses the general principle that delay in resolving a child's future is prejudicial to that child's welfare. In this particular case intensive preparation for the hearing had been going on effectively since [S.'s] birth in May 1998 and up until the outset of the hearing before me the mother had had the benefit of advice from her lawyers, latterly of course from leading counsel. An adjournment would have involved a very substantial delay in resolving [S.'s] future.

The hearing was estimated to last, and did indeed, last something in the order of twenty working days. A fresh legal team, assuming legal aid was restored, would have needed a substantial amount of time to master the voluminous documentation and to take instructions. Twenty days of court time simply cannot be conjured out of thin air.

Furthermore the evidence of Dr ... Bentovim, the consultant child psychiatrist jointly instructed to advise me, amongst other things, on [S.'s] placement, was that a decision on her long-term future needed to be both made and if possible implemented before her first birthday.

The consequence of the events I have described was that the mother has been obliged to conduct her case in person with the assistance of a McKenzie friend, Mrs [H.]. In their closing submissions Mr David Harris QC and Miss Roddy for the guardian ad litem paid tribute to the manner in which the mother had conducted her case. They described her as fighting bravely, resourcefully and skilfully for the return of her daughter. I would like to echo that tribute. I would also like to express my gratitude to the mother's McKenzie friend ... who was clearly a considerable support to the mother throughout the case.

If the mother had been represented by counsel her case would, I think, have been conducted differently, but I am entirely satisfied that the result would have been the same. As so often happens the mother was given a latitude which would not be given to a litigant who was legally represented. For example, I allowed her to call a witness, Professor Robinson, who had not provided a statement prior to the hearing. I was also prepared for her to call a consultant psychologist who had given evidence in the American proceedings, Dr [P.], who in the event was unable to attend. I also allowed the mother to cross-examine witnesses twice ... I have throughout the hearing endeavoured to ensure that the mother was treated fairly. ....

I am the first to acknowledge that the courtroom is not a friendly environment and ... that those who are not used to it find it difficult. However much experience the mother may have had of the legal system in the United States of America, I accept ... that she is not a lawyer. Further, the hearing has had in [S.'s] interests to delve into matters which were highly distressing to the parents and which are normally intensely private and would have remained private.

It is my judgment that the mother's case has been fully heard and that the hearing has been fair ... I reject any suggestion that had the mother been legally represented the result would have been different.”

On 8 March 1999 the judge made a care order. In reaching his decision, he did not consider himself bound by the American conviction and reached his own findings of fact on the available material, which included a substantial volume of documents from the United States and expert reports. He concluded beyond reasonable doubt that B.'s diarrhoea had been caused by laxative abuse on the part of P. on one occasion and, on a balance of probabilities, that abuse was the most likely cause of B.'s diarrhoea on two further occasions. He went on:

“I am therefore in no doubt and so find that [B.] did suffer harm in the care of his mother. In my judgment that harm was not limited to his physical health. I accept the argument of the local authority that he also suffered serious psychological harm. ...”

While the judge accepted that P. had not put S. at risk during her pregnancy and that the parents' treatment of S. during contact sessions had been exemplary, he found that P. suffered from a personality disorder, and that such people were very difficult to treat and did not change easily. He considered that P. was in a state of deep denial about what had happened to her son B. and the potential risk that she posed to her daughter S. He referred to the expert evidence “that to receive help P. would need to accept that she remains a potentially dangerous person to S.” and “that is impossible even to start where the mother is in denial to the extent that this mother plainly is”. He noted that Dr Bentovim had found a small acknowledgment about her role in B.'s illness, but that P. had challenged the accuracy of his report on this point and embarked on a high-risk strategy of launching an outright attack on the American evidence.

“At the end of a very careful and thorough cross-examination by the guardian ad litem, Dr Bentovim agreed ... that given the depth and longevity of the mother's state of denial, and given that the father had embraced it fully, the time scale for any therapeutic work with the mother designed to bring her to a state of understanding of and ability to address the risk posed to S. was way outside the time scale during which S. could be kept waiting for a permanent placement. Dr Bentovim's conclusion, reached I think with some regret, was that in the circumstances there could be no question of reunification of S. with her mother.”

The judge found that C. was incapable of altering his emotional perception of P. or of accepting that she was responsible for harming her son B., although with a different woman as a partner he would have been able to bring up and care for a child. The direction of the case could have been altered if C. had acknowledged that there was a serious risk to be guarded against. C. was dominated by the mother and unable to put S.'s interests and the need to protect her first. The judge concluded that S.'s moral or physical health would be endangered by leaving her with her parents.

On 15 March 1999 the same High Court judge heard the application to free S. for adoption. The transcript of his previous judgment was not yet available. The final order of 15 March 1999 listed P., C. and S. as respondents. According to the applicants, C. was present throughout and was specifically asked in court if he consented to a freeing for adoption order being made, and C. indicated that he was not.

At the commencement of the hearing, P. informed the court that without legal representation she was significantly disadvantaged and was being deprived of a proper opportunity to advance her case. Both P. and C. had valid legal-aid certificates. The judge declined to defer the proceedings, finding that P. was capable of representing her interests and that she would have been put on notice by her lawyers at an earlier stage that the freeing for adoption application would follow the care order. Although he noted that there might appear to be “an element of railroading”, on balancing the parents' interests against the need for S. to have her future decided at the earliest possible opportunity, he considered that S.'s interests prevailed. On the issue of the freeing for adoption application, the judge concluded that the parents were withholding their consent to adoption unreasonably as they should have accepted, in the light of the previous proceedings, that there was no realistic prospect of the rehabilitation of S. to their care. He therefore issued an order freeing S. for adoption. That permanently severed legal ties between S. and her parents. As regards contact, he stated:

“I'm assured by [the local authority] that there will be conventional letter-box contact. But it will in due course (if an adoption order is made) be essentially a matter for the adoptive parents as to precisely what contact [S.] has with her natural family.”

The judge refused P. leave to appeal against the order. Her renewed application before the Court of Appeal was refused after a hearing on 5 July 1999, where she and C. appeared in person. Although the Court of Appeal noted that C. was not a party to the appeal, it referred to the fact that C. had addressed the court at some length on the issues. It noted that that the trial was of exceptional complexity, with enormous documentation, much expert evidence and lasting twenty days. It found, however, that the judge had carefully and thoroughly weighed all the issues of fact and that he had been meticulous throughout in ensuring fairness. No error of law or any failure of procedural fairness had been demonstrated.

The last contact visit by P. and C. with S. was on 21 July 1999.

On 2 September 1999 S. was placed for adoption with a family. On 13 October 1999 the local authority informed P. and C. that S. had been placed with adopters.

S. was adopted by an order made on 27 March 2000. P. and C. were informed on 27 April 2000.

The adoption order made no provision for future direct contact between S. and her parents. Any such contact was now at the discretion of the adoptive parents. By letter dated 6 July 2000, the local authority informed P. and C. that they could have limited indirect contact with S., namely, through Christmas and birthday cards, and presents. By letter dated 17 November 2000, the local authority informed them that contact was reduced at the request of the adopters to a letter from the parents once a year.

Section 47 of the Children Act 1989 provides:

“(1) Where a local authority

(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.”

Whenever a court determines any matter in relation to the upbringing of a child, it must have regard to the provisions of the Children Act 1989, section 1, which requires that the court's paramount consideration must be the welfare of the child. The court is empowered to make care orders or supervision orders where it is satisfied that

(a) the child concerned is suffering, or is likely to suffer, significant harm;

(b) the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given to him/her if the order were not made; and

(c) that care is not what it would be reasonable to expect a parent to give to him/her (section 31).

Where an application is made for a care order, the local authority which is to take over the care of a child must set out the plan by which it intends to meet the welfare needs of the child (including details of contact) – the “care plan”. Government guidance at the time emphasised:

“Where a child is in the care of a local authority, the Children Act 1989 places a duty on them to make all reasonable efforts to rehabilitate the child with his or her family whenever possible unless it is clear that the child can no longer live with his family or that the authority has sufficient evidence to suggest that further attempts at rehabilitation are unlikely to succeed.” (LAC(98)20 Appendix 4)

The courts' approach was similar:

“The principle has to be that the local authority works to support, and eventually to reunite, the family, unless the risks are so high that the child's welfare requires alternative family care” (Lady Justice Hale in Re C and B (Children) (Care Order: Future Harm) [2000] 1 Family Law Reports 611)

Adoption is the primary avenue in the United Kingdom by which permanent alternative care is provided for children who cannot be brought up within their own family. An adoption order, which is effectively irrevocable, gives parental responsibility to the adopters and extinguishes the pre-existing parental responsibility.

By virtue of section 16, an adoption order may not be made unless the child is free for adoption, or both parents have consented or their consent had been dispensed with on specified grounds.

Before a local authority can apply for an application to free a child for adoption, the plan for adoption must be placed before an adoption panel. In the absence of parental consent, a local authority may apply for a freeing for adoption order where the child is in the care of the local authority. The test to be applied by the courts in determining whether or not to dispense with parental consent includes the ground that the parent is withholding agreement unreasonably (section 16(2)(b)). A recent judicial approach to that test suggested that the judge should consider whether, having regard to the evidence and applying the current values of society, the advantages of adoption for the welfare of the child appeared sufficiently strong to justify overriding the views and interests of the objecting parent (Re C (A Minor) (Adoption: Parental Agreement: Contact) [1993] 2 Family Law Reports 260).