The applicant is a NORP national , born in DATE . He is currently serving a prison sentence in PERSON prison .

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

On DATE the ORG sentenced the applicant to DATE imprisonment . On DATE the same court convicted the applicant of another offence and pronounced another prison sentence .

On DATE the ORG 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 DATE the applicant was convicted of another offence and again sentenced to imprisonment .

On DATE the ORG 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 CARDINAL complaints with ORG in which he submitted that he was not afforded adequate medical treatment in PERSON prison . In its reply of DATE , the ORG , 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 ORG about the allegedly inadequate medical care he received in prison .

In a reply dated DATE the ORG ’s office informed the applicant that his complaint had been investigated . ORG 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 DATE the ORG , 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 DATE 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 ORG , sitting in a panel of CARDINAL judges , which was dismissed on DATE . The court had before it a medical certificate of DATE 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 DATE , 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 CARDINAL 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 DATE the applicant refused to undergo a medical examination at ORG of GPE prison hospital .

By a letter of DATE ORG replied to the applicant ’s complaint that his earlier complaint had not been adequately investigated by ORG , and stated that his allegations were entirely unfounded .

On DATE the ORG 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 DATE the ORG , having considered a medical certificate of DATE , refused to release the applicant and held that he could obtain the necessary medical treatment at the hospital of GPE prison .

By a letter of CARDINAL DATE the Poznań ORG replied to a complaint by the applicant about the allegedly inadequate medical care extended to him . It stated that the applicant , following the DATE 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 PERSON 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 DATE the ORG refused to order the applicant ’s release in view of the fact that he could obtain the necessary treatment at the hospital of GPE prison .

On DATE the ORG refused to order the applicant ’s release for the same reason .

On DATE the ORG , taking into consideration the medical certificate of DATE , found no grounds on which to order the applicant ’s release .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by PERSON V. ORG , a member of the ORG d’État and ORG .

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

At the material time the applicant controlled CARDINAL 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 LOC from which the companies were operating .

By an order of DATE a judge delegated by the President of ORG authorised tax inspectors from ORG , ORG and ORG , assisted by tax controllers from those departments , to search and seize documents on CARDINAL sets of business and residential LOC 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 LAW following an application by ORG . It stated that the aim of the searches was to seek evidence that the CARDINAL 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 LAW ... ” .

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 DATE that had been sent to ORG in GPE and bore a hand - written signature and a note stating that it was from B. , the manageress of C. company . In the letter PERSON said that she was unable to control the conduct of her brother , the applicant , who held PERCENT 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 DATE officials from ORG had given a statement in which they said that on DATE 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 ORG in GPE 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 CARDINAL of the companies concerned . ORG 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 CARDINAL DATE ORG had found that the applicant and his wife had fraudulently failed to calculate and pay any income tax for the DATE tax year . Lastly , in a judgment of CARDINAL DATE ORG 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 DATE 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 DATE ...

That telephone number appeared in an advertisement that was placed with the CARDINAL DATE edition of ORG ...

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 ORG ...

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 DATE ...

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 ( ORG ) , 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 LAW ...

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 ORG against the order ( that being the sole remedy available to them ) . In particular , they argued that the letter written by PERSON 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 LAW , 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 LAW B of LAW .

On DATE the Commercial , Financial and Economic Division of ORG 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 DATE , which was produced as Exhibit II - a . A failure to comply with the formal requirements of LAW 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 DATE is corroborated by the letter of CARDINAL DATE , Exhibit II - a , which was described and analysed in the warrant .

LAW B of LAW does not render a warrant invalid if the judge fails to specify the accounting DATE 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 LAW B of LAW ( as worded prior to the enactment of LAW . DATE of DATE ) 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 LAW , it may , in accordance with the conditions set out in LAW , authorise tax officials of at least inspector rank and holding authority from ORG to that end to seek proof of such acts by carrying out searches of all LOC , including private LOC , 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 LOC 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 DATE 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 GPE . 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 LOC while the operations are under way . He or she may at any time decide to suspend or halt the search . The occupier of the LOC 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 LOC . In the absence of the occupier of the LOC 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 CARDINAL et seq . of LAW . 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 LAW . 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 TIME or after TIME , shall be conducted in the presence of the occupier of the LOC or of his or her representative . If that is not possible , the senior police officer shall appoint CARDINAL 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 LOC 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 LAW . LAW 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 LOC 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 .

PERSON 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 LOC or his or her representative ... ”

Article CARDINAL of LAW 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 CARDINAL affords guarantees sufficient to satisfy it ” ( Court of Cassation , ORG , DATE , Civil Bulletin I , no . CARDINAL ; ORG , DATE , Civil PERSON , no . CARDINAL ) .


The applicant was born in DATE and lives in Bátonyterenye .

NORP In DATE criminal proceedings were instituted against him .

On DATE ORG preferred a bill of indictment in the case , which concerned CARDINAL other individuals . The applicant was charged with fraud and CARDINAL counts of violating foreign exchange regulations .

DATE and DATE , ORG held hearings DATE . It heard evidence from several experts and CARDINAL witnesses . On the last - mentioned date , it acquitted the applicant .

On appeal by the prosecution , on DATE ORG upheld the applicant 's acquittal .


The applicants , PERSON Vorsina and PERSON , are NORP nationals , who were born in DATE and DATE and live in GPE .

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

The applicants are great - granddaughters of Mr PERSON , a prominent factory owner , CARDINAL of the first brewers in LOC . He founded a brewery in ORG in DATE .

The only surviving portrait of the grandfather was kept in the PERSON family archives . In DATE the applicants passed a copy of the portrait to ORG 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 “ DATE 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 . CARDINAL 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 ORG . 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 DATE , ORG 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 CARDINAL § CARDINAL of the Law on Trademarks , Service PERSON and ORG , great - granddaughters , and [ the applicants ] in particular , can not be recognised as heirs .

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

In accordance with LAW , 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 .

PERSON died in DATE , at that time his son PERSON ( DATE ) ... was alive . Therefore , PERSON great - granddaughters can not be considered as his intestate heirs .

In these circumstances , the court considers that section CARDINAL § CARDINAL of the Law on Trademarks can not 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 ORG of local lore .

Pursuant to section CARDINAL of ORG , items and collections included in the museum stock of GPE and held in NORP museums shall be open for public access .

Pursuant to section CARDINAL § CARDINAL of the same PERSON , 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’ LOC , 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 LOC ’s portrait in the label of the ‘ Vorsinskoye’ beer .

The information about the LOC 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 PERSON and PERSON understands ‘ ORG as ( CARDINAL ) something undiscovered , not yet known ; ( CARDINAL ) 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 PERSON dictionary , ‘ PERSON means complete , immune from any encroachment . The court considers that the use of PERSON 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 LAW , 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 DATE , ORG disallowed the appeal on the following grounds :

“ ... Articles CARDINAL - CARDINAL 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 LAW , had been disrespected . The [ trial ] court assessed these arguments and the [ appeal court ] upholds this view .

PERSON is a prominent figure , the founder of beer production in LOC , and this well - known fact can not 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 PERSON 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 ORG , does not infringe or prejudice [ the applicants’ ] personal non - pecuniary interests . The information about PERSON is not only the family ’s asset , but is also part of the public domain as information about a famous businessman of GPE ...

The fact that the great - grandfather ’s portrait existed in CARDINAL 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 ORG of local lore , and [ the brewery ] obtained , in accordance with [ section CARDINAL 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 DATE , is a citizen of GPE ; C. , the husband of P. , was born in DATE and is a GPE citizen ; PERSON , their daughter was born in DATE and is GPE and NORP citizen . They are all resident in GPE .

In DATE , then living in GPE , gave birth to a son A. shortly before her eighteenth birthday . In DATE P. married her first husband and had a second son PERSON in DATE . In DATE she and her husband separated . Both parents contested custody of B.

DATE and DATE B. was referred to his general practitioner for some CARDINAL complaints .

NORP In DATE 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 DATE 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 DATE the NORP authorities took B. into protective custody , alleging that PERSON was harming her son , then aged CARDINAL , by administering laxatives to him inappropriately . He was suspected of being a victim of induced - illness abuse , the syndrome known variously as PERSON syndrome by proxy ( “ MSBP ” ) , fabricated or induced illness , illness - induction syndrome or paediatric falsified condition . PERSON 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 DATE a NORP court ordered that B. live with his father . Following this placement , PERSON did not suffer from any acute or abnormal diarrhoea . At a hearing in DATE , the court approved supervised contact between PERSON and her son PERSON once a month for TIME for the following DATE . PERSON was informed that , if she wished increased contact , it could be envisaged in a supervised , therapeutic context .

P. was charged with cruelty towards PERSON and endangering PERSON 's health , a felony offence under section CARDINALA(a ) of GPE . A report prepared by PERSON stated that PERSON suffered from PERSON and that she had victimised PERSON over DATE , causing him severe diarrhoea , possibly vomiting , weight loss and multiple non - trivial procedures and hospitalisations . On DATE , after a DATE trial before a jury in ORG , she was convicted of a misdemeanour under section CARDINALA(b ) , a lesser offence , and acquitted of the felony . On DATE she was sentenced to DATE probation and DATE in custody , subsequently suspended . She was also ordered to enter and complete a “ psychological and psychiatric treatment programme ” .

During the divorce proceedings , PERSON was required to have therapy as a condition for getting custody of PERSON and saw a therapist from DATE until DATE . From DATE 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 DATE , she saw a psychologist twice a month for therapy .

On DATE the NORP family court reduced contact to CARDINAL 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 PERSON 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 ORG .

In DATE , in breach of the probation order , PERSON came to visit C. in GPE . P. and C. were married in DATE in GPE . P. discovered shortly afterwards that she was pregnant .

Rochdale ORG ( “ 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 GPE who in turn made contact with the authorities in GPE , giving information about P. 's conviction for harming her son PERSON The local authority was informed of the pregnancy by PERSON 's doctor and commenced an investigation .

Social workers were in contact with P. and C. from DATE . 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 PERSON give her date of birth in order to confirm that she was the person concerned in the information from GPE . P. initially refused to give this information . The proposed meeting was cancelled .

On DATE 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 PERSON had been discussed .

On DATE 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 CARDINAL of LAW DATE ( “ the section CARDINAL assessment ” ) . By letter dated CARDINAL DATE , the local authority 's solicitors noted that the applicants were not happy with the proposed expert , PERSON , and requested further details of any objections . They pointed out that the person suggested by the applicants was not an expert in PERSON and requested details of the other proposed experts .

On DATE 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 CARDINAL DATE , the local authority 's solicitor referred to a letter of CARDINAL DATE 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 CARDINAL assessment .

On DATE a case conference was held by the local authority attended , inter alia , by social workers , ORG 's general practitioner , a health visitor , a midwife , P. and C. , P. 's solicitor and the paternal grandmother of the unborn child . TIME 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 PERSON 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 PERSON , alleging that there was no direct evidence of any harm having been inflicted by her . Due to the concern that P. suffered from PERSON , it was decided to place the child on ORG at birth and to undertake a full risk assessment .

On DATE Dr Eminson agreed to act as expert in the assessment to take place .

On DATE 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 CARDINAL 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 DATE , in discussions between the applicants ' solicitors and the local authority , it was indicated that the applicants were no longer happy with PERSON .

On DATE 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 CARDINAL meeting . There still appeared to be a complete denial about events in GPE . The local authority 's solicitor had spoken with the district attorney involved in the case in GPE and reported a number of allegations , including the concern that P. suffered from PERSON 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 PERSON had harassed PERSON and the district attorney by telephone calls . It was noted that PERSON 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 ORG ... 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 DATE the applicants ' solicitors confirmed that P. and C. would see PERSON . They attended an appointment on DATE .

On DATE PERSON 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 DATE 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 PERSON as part of her assessment .

Notes dated DATE of a discussion between the assistant director ( social services ) and PERSON 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 GPE . 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 DATE 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 PERSON wanted PERSON to be admitted on DATE 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 DATE , at TIME , PERSON was born by Caesarean surgery . C. had brought PERSON to the hospital when her waters broke at home .

The local authority applied for an emergency protection order at TIME 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 ORG stated that the hospital was concerned by the difficult behaviour of a friend of PERSON '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 TIME Dr Maresh had stated that he would prefer the visit of the social workers to be deferred , as the news might upset PERSON and cause a rise in blood pressure .

At TIME 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 PERSON was removed , and C. 's mother pleaded with the social workers not to let PERSON go to strangers .

A contact visit was arranged on CARDINAL DATE , attended by C. and his parents . While social services had considered taking S. back to the hospital for visits while PERSON 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 CARDINAL to QUANTITY .

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 DATE .

The local authority meanwhile applied to the court for a care order under LAW DATE .

P. and C. were allowed supervised contact with PERSON , initially CARDINAL times a week . The first visit occurred on DATE . 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 CARDINAL times a week from DATE . S. also had contact with her maternal and paternal grandparents .

P. and C. developed an excellent relationship with their baby daughter PERSON 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 CARDINAL DATE the local authority suspended the assessment of the paternal grandparents which had commenced after their approach to the local authority on DATE . This was to await the directions of the court , as advised by their counsel . The grandparents were advised of this on DATE .

On DATE the case was transferred from the county court to ORG on grounds of complexity .

Dr Eminson issued her report on DATE , 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.

DATE . On DATE the timetable for the proceedings was set by a circuit judge and the hearing date fixed for DATE . 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 CARDINAL September CARDINAL , a social worker recorded the factual investigation into the paternal grandparents .

In his report dated DATE for the guardian ad litem appointed by the court to represent S. , PERSON , a consultant paediatrician , found , inter alia , a clear and chronic pattern including unexplained symptoms suggesting that PERSON 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 PERSON when repeating her history to different doctors ; and exceptionally frequent medical attendance by mother and children . His opinion was that PERSON , and to lesser extent GPE , 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 DATE ) . His view , strongly expressed , was that the risks to S. of rehabilitation with P. outweighed the advantages .

On DATE and DATE , the local authority informed P. and C. of their intention to apply for a freeing for adoption order under LAW .

On DATE Dr Maresh , ORG 's obstetrics consultant , gave a statement indicating that it was clear to him that PERSON 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 PERSON was undergoing had sometimes interfered with the making of ante - natal appointments .

On DATE PERSON 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 PERSON 's stools could have been a false positive . She accepted that PERSON 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 PERSON '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 PERSON 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 ORG , 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 , PERSON '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 ORG 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 DATE when PERSON was DATE , 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 PERSON 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 DATE the local authority made an application to free S. for adoption .

NORP The local authority care plan dated DATE 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 PERSON did not support placement with them , particularly because of their age . The local authority 's view was that the care plan for PERSON 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 DATE and ended on DATE , 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 CARDINAL families available and wanting to adopt PERSON and C. were parties , as were PERSON paternal grandparents , while PERSON was represented by a professional guardian ad litem , solicitors and both senior and junior counsel .

On DATE 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 DATE the judge granted him leave to withdraw . C. 's parents also withdrew from the proceedings .

On DATE 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 PERSON 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 PERSON had been given the opportunity to show why that should not happen .

P. asked for an adjournment until DATE , which was granted . On that date PERSON 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 , PERSON conducted her own case , assisted by a “ PERSON friend ” , PERSON The applicant stated that she found conducting her own case immensely difficult . At CARDINAL stage , she told the judge that she simply could not continue because she was so distressed . That was after cross - examining her own husband PERSON , 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 PERSON , 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 CARDINAL(CARDINAL ) of LAW 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 DATE 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 DATE . 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 . DATE of court time simply can not 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 PERSON friend , PERSON . In their closing submissions Mr PERSON and Miss PERSON 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 PERSON 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 PERSON , 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 NORP 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 GPE , 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 DATE the judge made a care order . In reaching his decision , he did not consider himself bound by the NORP conviction and reached his own findings of fact on the available material , which included a substantial volume of documents from GPE and expert reports . He concluded beyond reasonable doubt that PERSON 's diarrhoea had been caused by laxative abuse on the part of P. on CARDINAL occasion and , on a balance of probabilities , that abuse was the most likely cause of PERSON 's diarrhoea on CARDINAL 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 PERSON was in a state of deep denial about what had happened to her son PERSON and the potential risk that she posed to her daughter PERSON He referred to the expert evidence “ that to receive help P. would need to accept that she remains a potentially dangerous person to PERSON and “ that is impossible even to start where the mother is in denial to the extent that this mother plainly is ” . He noted that PERSON had found a small acknowledgment about her role in PERSON 's illness , but that PERSON had challenged the accuracy of his report on this point and embarked on a high - risk strategy of launching an outright attack on the NORP evidence .

“ At the end of a very careful and thorough cross - examination by the guardian ad litem , PERSON 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 PERSON was way outside the time scale during which PERSON could be kept waiting for a permanent placement . PERSON 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 PERSON , 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 PERSON had acknowledged that there was a serious risk to be guarded against . C. was dominated by the mother and unable to put PERSON 's interests and the need to protect her first . The judge concluded that PERSON 's moral or physical health would be endangered by leaving her with her parents .

On DATE the same ORG judge heard the application to free LOC for adoption . The transcript of his previous judgment was not yet available . The final order of CARDINAL DATE listed PERSON C. and S. as respondents . According to the applicants , PERSON 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 PERSON 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 PERSON to have her future decided at the earliest possible opportunity , he considered that PERSON '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 PERSON for adoption . That permanently severed legal ties between PERSON 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 . ”

DATE . The judge refused PERSON leave to appeal against the order . Her renewed application before ORG was refused after a hearing on DATE , where she and C. appeared in person . Although ORG 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 DATE . 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 PERSON was on DATE .

On DATE S. was placed for adoption with a family . On DATE the local authority informed P. and C. that S. had been placed with adopters .

S. was adopted by an order made on DATE . P. and C. were informed on DATE .

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

Section CARDINAL of LAW DATE provides :

“ ( CARDINAL ) 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 LAW DATE , section CARDINAL , 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 CARDINAL ) .

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 , LAW DATE 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(CARDINAL)CARDINAL DATE )

DATE . 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 PERSON in Re C and B ( Children ) ( Care Order : Future Harm ) [ DATE ] CARDINAL Family Law Reports CARDINAL )

Adoption is the primary avenue in GPE by which permanent alternative care is provided for children who can not 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 LAW , 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 CARDINAL(CARDINAL)(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 ) [ DATE ] CARDINAL Family Law Reports CARDINAL ) .


Remainder inadmissible;Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

HADEP was a political party which had been established on CARDINAL DATE . At the time of its dissolution on DATE its general secretary was the second applicant , Mr PERSON , who had been elected to that post in DATE .

In the general election held on DATE HADEP received CARDINAL votes , which represented PERCENT of the total number of votes cast . In the general election held on DATE HADEP received CARDINAL votes . However , as HADEP did not succeed in passing the required threshold of PERCENT , it was unable to be represented in ORG of GPE following these CARDINAL general elections ( see HADEP and Others v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ) . In local elections held on DATE HADEP won control of CARDINAL municipalities . It had branches in CARDINAL cities and in CARDINAL of districts . In DATE HADEP became a member of ORG .

The applicants submitted that , during a National Security Council ( PERSON ) meeting held on DATE , a decision had been taken to dissolve HADEP . In support of this assertion the applicants submitted to the ORG a report which , they claimed , had been adopted by ORG and which had subsequently been leaked to the press . The report , which is classified ' Secret ' , details a number of recommendations including “ the control and pursuit of ORG by the ORG in order to quell its activities ” . Following this decision ORG branches had been raided and its administrators had been subjected to physical pressure . In support of this latter argument the applicants submitted to the ORG CARDINAL reports , detailing the physical attacks on and the killings and forced disappearances of CARDINAL of ORG members , some of which have been examined by ORG ( see , inter alia , ORG and Others v. GPE , no . MONEY , ECHR CARDINAL–VIII ) .

On various dates criminal proceedings were brought against a number of members of ORG who were holding executive positions within the party . Some of the proceedings were suspended while some ended in convictions . Some of them were convicted of spreading “ separatist propaganda ” , in breach of section CARDINAL of the Prevention of Terrorism Act , while others were convicted of “ incitement to racial hatred and hostility in society on the basis of a distinction between social classes , races or religions ” , in breach of LAW . A number of others were convicted of lending assistance to the ORG in breach of LAW of LAW , for making speeches , allowing hunger strikers to use HADEP LOC and for possessing a number of documents prepared by ORG members in a law - firm owned by CARDINAL of them . Some served their prison sentences while execution of the sentences of a number of others was stayed .

On DATE the chief prosecutor at ORG brought proceedings before ORG and demanded that HADEP be dissolved . The chief prosecutor argued that ORG had become a “ centre of illegal activities against the integrity of GPE ” . In support of his allegations the chief prosecutor referred to the criminal proceedings pending against members of ORG and a number of activities of its members . CARDINAL incident relied on by the chief prosecutor was that during ORG 's DATE general meeting in DATE the NORP flag had been taken down and replaced with a NORP flag .

On DATE the chief prosecutor asked ORG to render an interim decision banning ORG from taking part in the forthcoming DATE general and local elections . The chief prosecutor 's request was refused by ORG on DATE .

On DATE lawyers for ORG submitted a written defence to ORG . They alleged that the chief prosecutor 's request for the dissolution of ORG had been made as a result of ORG above - mentioned decision ( see paragraph CARDINAL ) . They further argued , inter alia , that as it was not clear what the accusations against HADEP were , it was not possible for them to make full use of their defence rights . The lawyers relied on Articles CARDINAL , CARDINAL , DATE , DATE and DATE of the Convention and Article CARDINAL of Protocol No . CARDINAL to the LAW , and asked ORG to take into account the decisions and judgments of ORG in cases concerning the dissolution of a number of other political parties in GPE .

NORP The chief prosecutor maintained in his written submissions of DATE that ORG had close ties with the ORG , and alleged that the former was being controlled by the latter . The chief prosecutor also repeated his request for HADEP to be dissolved before the elections which were to be held on DATE . This request was not accepted by ORG .

During the proceedings , in their submissions to ORG representatives drew attention to the fact that the person who had taken down the flag was not a member of the party . They further stated that , immediately after the incident the ORG congress had publicly condemned the incident . Since then ORG had been dissociating itself from the incident and condemning it as an attack on a common symbolic value of the people of GPE .

In its decision of CARDINAL DATE ORG decided unanimously to dissolve ORG . The ORG based its decision on Articles DATE and CARDINAL of the LAW and sections FAC and CARDINAL of LAW ( Law no . PERSON ) . In arriving at its conclusion , ORG took account of the activities of certain leaders and members of ORG and concluded that ORG had become a centre of illegal activities which included aiding and abetting the ORG .

ORG noted , in particular , that during ORG 's DATE general meeting in DATE a non - HADEP member wearing a mask had taken down the NORP flag and replaced it with a NORP flag and a poster of the then leader of the ORG , PERSON . During the same meeting slogans had also been chanted in support of the ORG and its leader . The then general secretary of HADEP Mr PERSON , who was present during the meeting on DATE , had done nothing to stop the NORP flag being taken down and had stated during his speech that “ the existence of the NORP in GPE , who were not allowed to speak their mother tongue , had been denied . The ORG , despite ongoing military operations , massacres and provocations , was holding its ceasefire . Nothing could be resolved with military operations or with occupation . ” ORG considered the taking down of the NORP flag as proof of the links between ORG and the ORG . It further considered that the references made by PERSON PERSON to GPE 's fight against terrorism as an “ occupation ” and portraying NORP as a separate nation showed that PERSON was supporting the ORG .

The Constitutional Court referred to LAW in its judgment and stated that the rights guaranteed in that provision were not absolute and could be restricted in the circumstances listed in LAW . It also referred to LAW , and reached the following conclusion :

“ Carrying out activities , by relying on democratic rights and freedoms , against the indivisible unity of the ORG with its nation is unacceptable . In such circumstances it is the duty and raison d'être of the ORG to prevent the abuse of these rights and freedoms . Allowing a political party which supports terrorism and which is supported by terrorism to continue to exist can not be contemplated .

In statements and speeches made on behalf of ORG and in the course of various meetings , the party 's general secretary PERSON , other party officials and chairmen and members of the party 's provincial and district branches have stated that the NORP nation was a different nation from the NORP nation ; that ORG had been enforcing a policy of pressure and oppression on the NORP nation ; that there was an ongoing war between the ORG terrorist organisation and ORG ; and that the NORP nation should take sides with the ORG in this war . Some of these activities have resulted in convictions . These persons have thus aided and harboured the ORG and its leader PERSON , whose aim is to destroy the indivisible unity of the ORG . The incidents , which are detailed in relevant parts of this judgment and which took place during the Second Congress of ORG on DATE in GPE , as well as the objects and documents found in the party headquarters and in the party 's various branches confirm the [ above - mentioned conclusion ] .

Activities by members of ORG and the evidence [ in our possession ] clearly show the links between the respondent party and the ORG . The following incidents and activities – and many others and judgments rendered by courts – are proof of the connection and support between ORG and the NORP terrorist organisation :

– organisation of various activities DATE under instructions from the PKK – such as hunger strikes , demonstrations and issuing press releases with a view to protesting against the attempt to assassinate PERSON and against the work that had been carried out by ORG to apprehend PERSON , and against his subsequent arrest ;

– work to create , by referring to concepts such as freedom , brotherhood and peace , a sense of a different nation among the people who live in a certain part of the country or who claim to belong to a certain ethnic group ;

– description of the ORG 's struggle against the ORG terrorist organisation as a ' dirty war ' , as well as taking sides with the ORG in this war by carrying out certain activities and by displaying certain behaviour ;

– provision of training to a number of young people , in line with the ORG ideology but under the disguise of in - party training , with a view to recruiting them to the party first and subsequently to the NORP terrorist organisation in order for them to carry out activities on behalf of the NORP terrorist organisation and then sending them to the ORG 's mountain camps as armed militants ;

– the keeping in the ORG 's headquarters and in its district and provincial branches , of objects , books , banners and photographs of members of the ORG as well as other ORG terrorist organisation propaganda documents for which the courts have issued confiscation orders ;

– the fact of allowing people to watch the organisation 's media organ ORG in these places for propaganda purposes ; and

– speeches and activities during ORG 's ORG .

In the light of the above , and in accordance with Articles DATE and CARDINAL of the LAW and LAW ( b ) of LAW , it is hereby decided to dissolve HADEP , which has become a centre of illegal activities against the indivisible unity of the ORG with its nation and which has aided and harboured the ORG terrorist organisation .

As an ancillary measure under LAW , ORG banned CARDINAL ORG members and leaders from becoming founder members , ordinary members , leaders or auditors of any other political party for DATE . ORG also ordered the transfer of ORG 's property to the ORG .

The decision of ORG became final following its publication in ORG on DATE .

Article CARDINAL of LAW in force at the relevant time provided as follows :

“ Any person who , knowing that such an armed gang or organisation is illegal , assists it , harbours its members , provides it with food , weapons and ammunition or clothes or facilitates its operations in any manner whatsoever , shall be sentenced to not CARDINAL and not DATE imprisonment ... ”

Article CARDINAL of the Criminal Code in force at the relevant time provided as follows :

“ Non - public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall , on conviction , be liable to DATE imprisonment and a heavy fine of DATE MONEY .

A person who incites people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions , shall , on conviction , be liable to CARDINAL imprisonment and a fine of DATE . If this incitement endangers public safety , the sentence shall be increased by CARDINAL to CARDINAL .

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . ”

Section CARDINAL of the Prevention of Terrorism Act provided , in so far as relevant , as follows :

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not DATE imprisonment and a fine of CARDINAL . The penalty imposed on a reoffender may not be commuted to a fine . ”

Article CARDINAL § CARDINAL of the LAW provides as follows :

“ A political party 's programme , statute or activities may not contradict the sovereignty of the ORG , the indivisible unity of the ORG with its nation , human rights , equality , principles of rule of law , sovereignty of the nation and democratic and secular principles of the Republic ; they may not seek to establish a class - based dictatorship or any dictatorship and they may not incite people to commit offences . ”

The relevant paragraphs of LAW provide as follows :

“ CARDINAL . A decision to permanently dissolve a political party shall be taken if it is established that its statute and programme are not compatible with LAW ;

A decision to permanently dissolve a political party on account of activities which are contrary to LAW can only be taken if ORG decides that [ the party ] has become a centre where such activities are carried out . A political party shall be deemed to have become a centre of such activities if those activities are carried out in an intensive manner by its members and if this state of affairs is expressly or implicitly accepted by the party 's congress , its decision - making bodies or its groups within ORG , or if those activities are carried out directly by the party 's organs in a decisive manner ;

Depending on the severity of the actions in question , ORG may , instead of dissolving the party , decide to fully or partly deprive it of the financial aid it receives from the ORG ;

NORP Founding members or ordinary members whose declarations or actions lead to the permanent dissolution of a political party shall be disqualified from acting as founders , ordinary members , administrators or auditors of another political party for a period of DATE starting from the date of publication in ORG of the reasoned decision of ORG ;

At the time of the dissolution of HADEP the relevant paragraph of LAW provided as follows :

“ ORG sits with its president and CARDINAL members , and adopts its decisions with a simple majority . Cases concerning the annulation of provisions of the LAW or the dissolution of a political party require a CARDINAL majority .

On DATE Article CARDINAL of the LAW was amended . The relevant paragraph now reads as follows :

“ ... When deciding to dissolve a political party or to deprive it of the financial aid it receives from the ORG , a CARDINAL majority is required .

Sections CARDINAL and CARDINAL of LAW ( Law no . CARDINAL ) provide as follows :

“ ORG may decide to dissolve a political party :

( a ) where [ that party 's ] programme or statute contradicts the sovereignty of the ORG , the indivisible unity of the ORG with its nation , human rights , equality , principles of rule of law , sovereignty of the nation and democratic and secular principles of the LOC [ and where they ] defend and seek to establish a class - based dictatorship or any dictatorship [ and where they ] incite people to commit offences ;

( b ) where it is established by ORG that [ the ] political party has become a centre of activities contrary to LAW ; and

( c ) where [ the party ] has received financial assistance from a foreign ORG , international organisation or from non - NORP persons and companies .

In cases concerning ( a ) and ( b ) above and depending on the severity of the activities concerned , ORG may , instead of dissolving the party , deprive it of CARDINAL or more of the financial assistance provided by the ORG for DATE ... ”

“ The Constitutional Court shall have the power to determine whether a political party has become a centre of activities which are contrary to LAW .

A political party shall be deemed to have become a centre of such activities if those activities are carried out in an intensive manner by its members and if this state of affairs is expressly or implicitly accepted by the party 's congress , its decision - making bodies or its groups within ORG , or if those activities are carried out directly by the party 's organs in a decisive manner . ”

In its Guidelines on the prohibition and dissolution of political parties and analogous methods ( published in DATE ) ORG ) proposed the following :

“ CARDINAL . States should recognise that everyone has the right to associate freely in political parties . This right shall include freedom to hold political opinions and to receive and impart information without interference by a public authority and regardless of frontiers . The requirement to register political parties will not in itself be considered to be in violation of this right .

Any limitations to the exercise of the above - mentioned fundamental human rights through the activity of political parties shall be consistent with the relevant provisions of LAW and other international treaties , in normal times as well as in cases of public emergencies .

Prohibition or enforced dissolution of political parties may only be justified in the case of parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order , thereby undermining the rights and freedoms guaranteed by the constitution . The fact alone that a party advocates a peaceful change of the LAW should not be sufficient for its prohibition or dissolution .

A political party as a whole can not be held responsible for the individual behaviour of its members not authorised by the party within the framework of political / public and party activities .

The prohibition or dissolution of political parties as a particularly far - reaching measure should be used with utmost restraint . Before asking the competent judicial body to prohibit or dissolve a party , governments or other state organs should assess , having regard to the situation of the country concerned , whether the party really represents a danger to the free and democratic political order or to the rights of individuals and whether other , less radical measures could prevent the said danger .

Legal measures directed to the prohibition or legally enforced dissolution of political parties shall be a consequence of a judicial finding of unconstitutionality and shall be deemed as of an exceptional nature and governed by the principle of proportionality . Any such measure must be based on sufficient evidence that the party itself and not only individual members pursue political objectives using or preparing to use unconstitutional means .

The prohibition or dissolution of a political party should be decided by the LAW court or other appropriate judicial body in a procedure offering all guarantees of due process , openness and a fair trial . ”

Resolution CARDINAL ( DATE ) of ORG of ORG on “ Restrictions on political parties in ORG member states ” states , in particular , as follows :

... [ T]he ORG believes that in exceptional cases , it may be legitimate for a party to be banned if its existence threatens the democratic order of the country .

In conclusion and in the light of the foregoing , the ORG calls on the governments of member states to comply with the following principles :

i. political pluralism is one of the fundamental principles of every democratic regime ;

ii . restrictions on or dissolution of political parties should be regarded as exceptional measures to be applied only in cases where the party concerned uses violence or threatens civil peace and the democratic constitutional order of the country ;

iii . as far as possible , less radical measures than dissolution should be used ;

iv . a party can not be held responsible for the action taken by its members if such action is contrary to its statute or activities ;

v. a political party should be banned or dissolved only as a last resort , in conformity with the constitutional order of the country , and in accordance with the procedures which provide all the necessary guarantees to a fair trial ;

vi . the legal system in each member state should include specific provisions to ensure that measures restricting parties can not be used in an arbitrary manner by the political authorities . ”

On DATE ORG , acting on a request from ORG of ORG of ORG PACE ) asking it “ to review the constitutional and legal provisions which are relevant to the prohibition of political parties in GPE ” , adopted the “ Opinion on ORG to the Prohibition of Political Parties in GPE ” . The relevant parts of the Opinion are as follows :

ORG concludes that , when compared to the common NORP practice , the situation in GPE differs in QUANTITY important respects :

There is a long list of substantive criteria applicable to the constitutionality of political parties , as laid down in DATE ( CARDINAL ) and the PERSON on political parties , which go beyond the criteria recognised as legitimate by the ECtHR and ORG .

NORP There is a procedure for initiating decisions on party prohibition or dissolution which makes this initiative more arbitrary and less subject to democratic control , than in other NORP countries .

There is a tradition for regularly applying the rules on party closure to an extent that has no parallel in any other NORP country , and which demonstrates that this is not in effect regarded as an extraordinary measure , but as a structural and operative part of the constitution .

In conclusion , ORG is of the opinion that the provisions in LAW and CARDINAL of the LAW and the relevant provisions of the LAW on political parties together form a system which as a whole is incompatible with LAW ORG as interpreted by the ECtHR and the criteria adopted in DATE by ORG and since endorsed by ORG of ORG .

The basic problem with the present NORP rules on party closure is that the general threshold is too low , both for initiating procedures for and for prohibiting or dissolving parties . This is in itself in abstracto deviating from common NORP democratic standards , and it leads too easily to action that will be in breach of the ORG , as demonstrated in the many NORP cases before ORG .

Because the substantial and procedural threshold for applying the NORP rules on party prohibition or dissolution is so low , what should be an exceptional measure functions in fact as a regular one . This reduces the arena for democratic politics and widens the scope for constitutional adjudication on political issues . The scope of democratic politics is further eroded by the constitutional shielding of the first CARDINAL articles of the LAW , in such a way as to prevent the emergence of political programmes that question the principles laid down at the origin of GPE , even if done in a peaceful and democratic manner .

ORG is of the opinion that within democratic LOC these strict limitations on the legitimate arena for democratic politics are particular to the NORP constitutional system , and difficult to reconcile with basic NORP traditions for constitutional democracy .

ORG recognises and welcomes the fact that in DATE the rules on party prohibition in GPE have been changed in such a way as to raise the threshold for dissolution . In the DATE reform , LAW was amended to include the qualification that for a party to be in conflict with the criteria of LAW ( CARDINAL ) the party must be a ' centre ' for such activities . At the same time , the requirement of a CARDINAL majority of ORG for dissolving a political party was introduced into LAW . This has shown itself to be an important reform , which was decisive for the outcome of the AK party case . While laudable , these reforms have not been sufficient to fully bridge the gap between the NORP rules and the standards of the ORG and ORG .

Consequently , ORG is of the opinion that , although the DATE revision was an important step in the right direction , it is still not sufficient to raise the general level of party protection in GPE to that of the ORG and the NORP common democratic standards . Further reform is necessary in order to achieve this , both on the substantive and the procedural side .