AS TO THE ADMISSIBILITY OF
Application No. 28983/95
by Alaa AL-BANAA
against The United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 15 January 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 May 1995 by
Alaa AL-BANAA against The United Kingdom and registered on
26 October 1995 under file No. 28983/95;Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
25 April 1997 and the observations in reply submitted by the
applicant on 21 August 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British civil engineer born in 1956 in
Baghdad. He resides in Bristol.
A. Particular circumstances of the case
The facts of the case as submitted by the parties may be
summarised as follows.
The applicant and J.M.L. married in March 1985. On
15 October 1986 J.M.L. filed a divorce petition.
On 22 January 1987 a daughter, L., was born. Immediately after
the birth, J.M.L. denied the applicant any contact with the child.
On 29 January 1987 the provisional divorce (decree nisi) was
pronounced, custody of the child being given to the mother.
It appears that a dispute over the paternity of the child arose.
According to the applicant, this dispute was resolved on
24 November 1987. The applicant never raised the issue of paternity
again.
On 25 March 1988 the applicant made an application for access to
his child.
On 17 August 1988 the Bristol County Court granted the applicant
supervised access on two occasions, for a period of one hour each.
Having refused to allow access on 9 September 1988 and
13 September 1988, and stated her intention not to allow supervised
access to take place, the mother was committed to 24 hours'
imprisonment on 8 November 1988.
On 14 December 1988, following the mother's refusal to allow
access, the applicant filed an application for custody and access.
On 30 January 1989 Judge Counsell (Bristol County Court)
dismissed the applicant's application for custody and access on the
ground that, although it was in the child's interests to see her father
regularly, the mother was obdurate and would not accept this.
On 14 February 1989 the final divorce (decree absolute) was
pronounced.
On 19 April 1990 the applicant renewed his application for
access. On 13 July 1990 Judge Counsell (Bristol County Court) refused
to make an order for access, considering that such an order was not
feasible as the mother was opposed to it and, as a consequence,
granting direct access would be harmful for the child.
The applicant appealed against this decision. On 27 November 1990
the Court of Appeal decided to appoint the Official Solicitor to
represent the child and adjourned the appeal hearing.
The Official Solicitor submitted a first report on 21 March
1991. On 25 June 1991 the Court of Appeal adjourned the hearing
in order to allow the Official Solicitor to obtain a report from a
child-psychiatrist as to whether access to the father was in the
child's interests.
A second report was submitted by the Official Solicitor on
22 July 1991.
At the hearing of 25 July 1991 the Court of Appeal noted that the
parents had arranged to attend conciliation sessions and dismissed the
applicant's appeal for that reason.
On 30 August 1991, as conciliation had failed, the applicant
filed another application for access.
On 17 January 1992 Judge Counsell from the High Court of Justice
(Family Division), sitting in Bristol, after examination of a further
report of the Official Solicitor, and after hearing the child-
psychiatrist, ordered a first access of the applicant to see his
daughter. The access visit took place on 15 February 1992, and the
applicant was able to see his daughter for the first time. During the
visit, which lasted one and a half hours, the mother of the child, the
Official Solicitor and the child-psychiatrist were present.
On 9 March 1992, following the meeting between the applicant and
his daughter, and upon the recommendation of the psychiatrist, the
Court ordered that the applicant should have access to his daughter on
a regular basis, namely the third Saturday of alternate calendar
months, for a period of approximately 1 1/2 hours. The court ordered
that such access should take place on 11 April 1992, 13 June 1992 and
8 August 1992. The court also allowed the applicant to write to his
daughter once per month and decided to review the matter on
12 August 1992.
On 11 April 1992 the applicant's daughter was brought for a visit
to the applicant's house. She was accompanied by her mother and her
grandfather. As she refused to leave the car, the applicant,
accompanied by R.B., a person appointed by the court, went to the car,
where he spoke to her for about five minutes.
On 13 April 1992 the applicant made an application for contact,
which, on 19 May 1992, led to no order.
The visit scheduled for 13 June 1992 did not take place due to
the mother's opposition.
On 20 June 1992, following an application for contact made on
15 June 1992, Judge Counsell (Bristol County Court) made an order
requesting the Official Solicitor to ensure that contact on 8 August
took place.
The Official Solicitor submitted a fourth report on 30 July 1992.
On 5 August 1992 Judge Counsell (High Court) ordered that contact
take place on 8 August 1992 at the applicant's house and that similar
contact should take place thereafter on the third Saturday of alternate
calendar months.
On 8 August 1992 the applicant's daughter visited him at his
house. The visit lasted one and a half hours.On 17 October 1992
the applicant's daughter was brought by her mother and her grandfather
to the applicant's house for another visit. Refusing to leave the car,
the child told R.B. and C.G., appointed by the court to be present at
the visit, that she did not want to see the applicant. Consequently,
the visit did not take place.
On 10 November 1992, following an application for contact of
19 October 1992, a contact order was refused.
The applicant's daughter came for another visit on
19 December 1992, but after speaking with the applicant in the presence
of her maternal grandfather for some minutes, she started crying and
said she wanted to go home.
On 22 December 1992 the applicant requested that contact should
take place in a neutral setting without any member of the mother's
family being present. He also requested that contact take place not
once every six or eight weeks, but once every fortnight.
On 12 February 1993, after examination of the Official
Solicitor's report of 9 February 1993, Judge Counsell (Bristol High
Court of Justice) adjourned the hearing to 20 May 1993 in order to
enable, firstly, the applicant to obtain legal representation, and
secondly, the Educational Welfare Officer to undertake conciliation
proceedings between the parents. The Judge ordered that there be no
contact in the meanwhile.
On 20 April 1993 Judge Counsell (Bristol County Court) ordered
the Official Solicitor to obtain information as to progress in the
conciliation proceedings between the applicant and the mother of the
child.
On 20 May 1993, after hearing a child-psychiatrist, Judge
Counsell (Bristol High Court of Justice) refused the applicant's
application for contact subject to reviewing the matter in March 1994
in order, firstly, to allow the Official Solicitor to approach the
Family Conciliation Service with a view to initiating further attempts
at conciliation between the parents and secondly, to allow the Official
Solicitor to provide the court with a further report on the matter.
The Judge ordered that in the meantime the applicant should have no
direct physical contact with his daughter, as such contact could be
damaging to the child. The applicant was nevertheless allowed to have
indirect contact such as sending his daughter cards at Christmas, on
her birthday, at Easter and once during the summer holidays, sending
her small monetary gifts at Christmas and on her birthday and obtaining
information from his daughter's school as to her progress.
On 16 June 1993 the applicant filed an appeal against the order
of 20 May 1993 prohibiting direct physical contact. On 11 November
1993 the Court of Appeal (Family Division) dismissed the appeal,
considering that, on the evidence, the trial judge's decision was
within the bounds of his discretion.
The applicant's application for leave to appeal to the House of
Lords was dismissed by the Court of Appeal on 23 November 1993. On
7 February 1994 the House of Lords refused leave to appeal.On 1 March
1994 the child-psychiatrist submitted a report to the court, where he
wrote the following:
"[...] currently L. is able to talk in a neutral way about her
father [...] and she is also able to accept his sending Christmas
and birthday cards to her. However, that degree of acceptance
is currently fragile, and if she were forced against her express
wishes to have increased indirect contact, or direct contact with
him, then the effect would be that she would turn profoundly and
more permanently against him [...]. L. has an inner conflict
about visiting her natural father, whom she asks not to be
required to visit for the time being, although she thinks she may
like to see him in the future [...]. Either time should be
allowed to gradually effect the change which will permit L. to
request direct contact with her father, or a [fourth] attempt to
improve parental attitudes through conciliation could be tried.
The latter course is preferred but is dependent on finding an
appropriate and acceptable family conciliator [...]"
According to the applicant's written statement on 15 March 1994,
the applicant received the child-psychiatrist report of 1 March 1994
on 14 March 1994.
On 16 March 1994, after examination of the reports submitted by
the Official Solicitor and the child-psychiatrist, after hearing the
parties, including the applicant's personal cross-examination of the
psychiatrist, and in the light of the failure of the conciliation
proceedings between the parents, Judge Counsell (High Court of Justice,
Family Division) stated first that in taking a decision, the welfare
of the child was paramount. It noted further, on the one hand, the
distress and suffering caused to the applicant by the absence of direct
contact with his child, and on the other hand, that the child had a
serious loyalty conflict vis-à-vis her mother which could become
detrimental to her mental development if she was forced to have direct
contact with the applicant for the following five years. The judge
reached the conclusion that, although in principle, it was in the
interest of the child to see and know her father, forcing direct
contact, as well as continuing the court proceedings, would be damaging
for the child for the time being. Taking into account the fact that
the child had expressed the view that at that time she did not want to
see the applicant, although she thought that at some time in the future
she might want to do so, and invoking section 1(1) of the Children Act
1989, the Judge ordered that there should be only indirect contact
between the applicant and his daughter by his sending her cards at
Christmas, on her birthday and during the summer holidays and by his
receiving his daughter's school reports. The Court also decided that,
pursuant to section 91(14) of the Children Act 1989, the applicant
could not file another application without leave of the court until
16 March 1999.
The applicant's appeal against the decision of 16 March 1994 was
dismissed by the Court of Appeal (Family Division) on 31 October 1994.
The Court concurred with Judge Counsell in finding that a direct access
and further court proceedings could be damaging for the child, and
confirmed that the High Court's decision was in compliance with the
Children Act 1989. The Court also ordered that the child-psychiatrist
provide a report concerning the attitude of the child to contact with
the applicant, to be served on both parents and filed with the court
by 1 November 1996. On 25 April 1995 the House of Lords refused to
grant the applicant leave to appeal.
In his report of 12 December 1996, following a report of the
child-psychiatrist in which it was noted that the child had moved
steadily in her attitude towards contact with her father, the Official
Solicitor recommended an increase in the amount of indirect contact
between the applicant and his daughter and a further review on the
question of direct contact by 1 January 1998. In particular, the
Official Solicitor recommended that the applicant's daughter be
permitted to send letters and cards to her father as often as she
wishes and that the applicant be permitted to write one letter in reply
to each of those.
On 24 June 1997 the applicant consented to an order being made
in the terms of the Official Solicitor's recommendations.
On 8 July 1997 an order was accordingly made.
B. Relevant domestic law
Section 1(1) and (2) of the Children Act 1989
"(1) When a court determines any question with respect to -
(a) the upbringing of a child; or
(b) the administration of a child's property or the application
of any income arising from it,
the child's welfare shall be the court's paramount consideration.
(2) In any proceedings in which any question with respect to
the upbringing of a child arises, the court shall have regard to
the general principle that any delay in determining the question
is likely to prejudice the welfare of the child.
[...]"
Section 91(14) of the Children Act 1989
"On disposing of any application for an order under this Act, the
court may (whether or not it makes any order in response to the
application) order that no application for an order under this
Act of any specified kind may be made with respect to the child
concerned by any person named in the order without leave of the
court."
COMPLAINTS
1. The applicant complains under Article 6 of the Convention that
he was deprived of a fair hearing before the High Court sitting in
Bristol, as some important documents were given to him a short time
before the hearing. He points out in this respect that for the hearing
of 16 March 1994 he was given the psychiatrist's report only on
14 March 1994. He also complains that he was not informed in advance
that the judicial discretion provided for in Section 91(14) of the
Children Act would fall for consideration at the hearing of
16 March 994. As a consequence, he did not have a proper opportunity
to advance evidence and submissions in this respect or to obtain legal
representation.2. The applicant complains, under Article 6 of the
Convention, that the proceedings concerning his applications for access
were not decided within a reasonable time. He contends that the
negligence of the authorities in enforcing the original court order has
led to the proceedings being delayed for over 9 years. In particular,
he complains that the hearing on 30 January 1989 was unjustifiably
adjourned for 15 months, and his application for contact was unduly
adjourned on 20 May 1993 for 10 months.
3. The applicant complains under Article 8 of the Convention that
the British court decisions preventing him from having access to his
child violate his right to respect for family life.
4. The applicant complains that the refusal of access constitutes
racial discrimination contrary to Article 14 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 1 May 1995 and registered on
26 October 1995.
On 17 January 1997 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
25 April 1997. The applicant replied on 21 August 1997, after an
extension of the time-limit.
THE LAW
1. The applicant complains, under Article 6 (Art. 6) of the
Convention, about the unfairness of the proceedings before the High
Court on 16 March 1994. In particular, he complains that he was given
some important documents only a short time before the hearing on
16 March 1994, and that he was not told in advance about the possible
use of Section 91(14) giving the judge discretionary powers. As a
consequence, he alleges that he could not properly prepare his case and
obtain legal representation.
Article 6 (Art. 6) of the Convention reads as follows:
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law ..."
The Commission notes firstly that the applicant did not request
an adjournment of the hearing of 16 March 1994 either to properly
prepare his case or to obtain legal representation. Instead, he cross-
examined the psychiatrist and gave evidence himself. The Commission
also observes that no explanation was provided by the applicant as to
his refusal to cross-examine the Official Solicitor.
The Commission finds that, in any event, the applicant had not
demonstrated that his written statement of 15 March 1994 and his oral
submissions at the hearing on 16 March 1994 were not considered by the
Court, or that the manner in which the court conducted the hearing was
otherwise unfair. As a result, the Commission finds no evidence to
indicate that the applicant could not present his case properly or that
the Court conducted the proceedings unfairly.
Accordingly, this complaint does not disclose any appearance of
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission concludes that this part of the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains, under Article 6 (Art. 6) of the
Convention, that the proceedings concerning his applications for access
were not decided within a reasonable time.
The Government submit that the proceedings for contact and access
instituted by the applicant cannot be looked at as a whole. Each
application or renewed application for contact is therefore to be
considered a separate and distinct determination of the applicant's
rights for the purposes of Article 6 (Art. 6) of the Convention. In
the Government's view, were the position otherwise, proceedings for
access or contact would be considered to last from the date of the
first application until the child reaches the age of majority, a
potential maximum period of 18 years.
In so far as it is alleged that any of the separate periods taken
to determine the applicant's civil rights are unreasonable, the
Government submit in the first place that, pursuant to Article 26
(Art. 26) of the Convention, the applicant is time-barred from
complaining about any decision pronounced more than six months before
the introduction of his application to the Commission, on 1 May 1995.
Therefore, the only decision finally determined within the preceding
six months about which the applicant can now complain is the decision
of the High Court of 16 March 1994 (subsequently upheld on 31 October
1994 and 25 April 1995), although the previous determinations are
relevant as background.
As to the substantive issues, the Government rely on the
complexity of the proceedings and the fact that the determination went
through three levels of jurisdiction. They point out that under
Section 1(2) of the Children Act 1989 the Court is required to have
regard to the general principle that any delay in determining any
question relating to a child's upbringing is likely to prejudice the
welfare of the child. Since it is the welfare of the child which is
the Court's paramount consideration, there are bound to be cases in
which planned and purposeful delay will improve the chances of meeting
the child's needs (such as where it is felt that the Court would
benefit from a full investigation and a report from a psychiatrist).
The Government consider that in the present case, such reports were
obtained with a minimum of delay. It also notes the amount of time it
took the applicant to agree to the recommendations in the report of the
Official Solicitor dated 12 December 1996.The applicant refutes the
Government's arguments that each or renewed application is to be
considered a separate and distinct determination of his rights for the
purposes of Article 6 (Art. 6) of the Convention. In the applicant's
view, the proceedings for access which he initiated from the birth of
his daughter should be looked at as a whole. In this respect, he
states that all his applications necessarily followed on from the first
application. Had the matter been resolved from the first application,
no further proceedings for access or contact would have been necessary.
The applicant further states that the proceedings, from the first
application and the first Order were not complex, but it was the lack
of enforcement of the first Order that made them become complex.
The Commission recalls that, in order to keep the parents and
children concerned no longer than necessary in uncertainty, proceedings
relating to a parent's access to his child should not be unduly
prolonged (cf. Hendricks v. the Netherlands, Comm. Report 8.3.92,
para. 137, D.R. 29, pp. 14, 41). It also recognises that the decision
to be taken requires careful examination of the family situation and
needs to take into account the possibility of reaching an agreed
arrangement.
The Commission notes that the applicant filed several
applications for access. The first application was granted on
17 August 1988, the second was dismissed by Bristol County Court on
30 January 1989. The applicant renewed the application for access
15 months later, on 19 April 1990, which was dismissed by the County
Court on 13 July 1990, that is four months later. The appeal was
dismissed on 25 July 1991 by the Court of Appeal. Another set of
proceedings was instituted by the applicant on 30 August 1991. He was
then granted access by judgments of 17 January 1992, 9 March 1992,
15 June 1992 and 5 August 1992. On 19 October 1992 the applicant filed
another application for contact, which was dismissed on
10 November 1992. The last set of proceedings started on
22 December 1992, when the applicant filed an application seeking more
frequent contacts, was reviewed on 16 March 1994, and ended on
25 April 1995 with the decision by the House of Lords not to grant
leave to appeal.
The Commission notes that these proceedings, although they had
the same object, that is to allow access to the applicant, concerned
different periods of time, were dealt with in a different manner by
distinct judgments, which were open to distinct levels of appeal. The
Commission considers therefore that each set of proceedings should be
examined separately.
The Commission notes that, as the present application was
submitted to the Commission on 1 May 1995, that is more than six months
later than all sets of proceedings but the proceedings that ended by
judgment of 25 April 1995, this part of the application must be
rejected in accordance with Article 27 para. 3 (Art. 27-3) of the
Convention.
It follows that only that part of the application concerning the
proceedings that ended on 25 April 1995 is within the six-month time-
limit set out in Article 26 (Art. 26) of the Convention.Even
assuming that the period to be taken into consideration began on 22
December 1992 rather than on the review date of 16 March 1994, for the
particular circumstances of the case, in assessing the reasonableness
of the period following 22 December 1992, the Commission will take into
account the state of the earlier proceedings concerning access and the
link between all these proceedings.
The last set of proceedings ended on 25 April 1995, when the
House of Lords refused to grant the applicant leave to appeal.
The total period to be considered was thus two years and four
months. The length of proceedings before the High Court was of fifteen
months, whereas the length of proceedings before the Court of Appeal
was of almost nine months.
The Commission reiterates that the reasonableness of the length
of proceedings must be assessed in the light of the circumstances of
each case and having regard to the following criteria: the complexity
of the case, the conduct of the parties and that of the authorities
dealing with the case (Eur. Court HR, Vernillo v. France judgment of
20 February 1991, Series A no. 198, p. 12, para. 30).
The Commission notes that the case was of a certain complexity,
as the courts, in taking their decision, had to strike a balance
between the welfare of the applicant's child and the applicant's rights
as a father. In particular, the courts had to determine the question
whether direct access of the applicant would be damaging or not for his
child.
The Commission notes that the decision taken by the High Court
required careful examination of the family situation and of the
preceding attempts at contact. It also notes that the preparation of
the report by the child-psychiatrist and the Official Solicitor
involved time-consuming contacts with the persons involved. On the
other hand, the Commission observes that the Court decided on
20 May 1993 to review the application in March 1994 in order to allow
further attempts at conciliation between the applicant and the mother
of the child.
The Commission also observes that the applications for contact
preceding the date of 22 December 1992 were dealt with by the courts
rather speedily.
In the light of the criteria laid down in the Court's case-law
and having regard to the circumstances of the present case, the
Commission finds that the time required by the courts for the
determination of the applicant's request for direct access cannot be
regarded as unreasonably long.
Accordingly, this complaint does not disclose any appearance of
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission concludes that this part of the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant complains that his right to direct access to his
child has been interfered with in an unjustified manner. He invokes
Article 8 (Art. 8) of the Convention, which provides:
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society ... for the
protection of the rights and freedoms of others."
The Government submit in the first place that there has never
been any "family life" within the meaning of Article 8 (Art. 8) between
the applicant and his daughter. They contend that the fact that the
applicant is the natural father of the child is not necessarily
sufficient to establish "family life" at birth, even though the
applicant was the formal husband of the child's mother at the time of
the birth. Regard must be had to the substance and reality of the
relationship as opposed to its formal status. The Government point out
in this respect that the applicant has never lived with his daughter
and was not living with her mother at the time of the birth.
Furthermore, the Government consider that the quality of the
applicant's union with his wife was not such as to infer that family
life necessarily existed between the applicant and his daughter at the
time of the birth of the child, as, on the one hand, divorce
proceedings were active, and on the other hand, the mother of the child
had left the matrimonial home. Moreover, the applicant's first
application for access to his daughter was not made until she was one
year and two months old.
In the alternative, the Government submit that any interference
with the right to family life was justified under paragraph 2 of
Article 8 (Art. 8-2) of the Convention. Such interference was in
accordance with the law, namely the Children Act 1989 and its
predecessor, the Matrimonial Causes Act 1973, and was necessary in a
democratic society to protect the rights and freedoms of others, namely
the applicant's former wife and his daughter. Furthermore, the
interference was necessary in a democratic society, that is, it was
proportionate to the legitimate aim pursued. The Government point out
in this respect that the courts took into account the welfare of the
child. Their decisions were based on seven independent reports
prepared by the Official Solicitor, after consultation of a
psychiatrist. The Official Solicitor was appointed at public expense
to look after the child's interests. The order of 8 July 1997 is
evidence of a gradual improvement in the relationship between the
applicant and his daughter and goes some way to mitigate the effect of
the 1994 order that the applicant must obtain the leave of the Court
before filing another application for access or contact before March
1999.
The applicant submits that his relationship with his daughter
does constitute family life within the sense of Article 8 (Art. 8) of
the Convention, and therefore falls within the scope of this Article.
He points out that at the birth of his child, he was still living with
his wife, who refused to return home after the birth. Invoking the
Eriksson judgment, where the court had stated that the mutual enjoyment
by parent and child of each other's company constitutes a fundamental
element of family life, the applicant states that the simple fact that
divorce proceedings were active and that his former wife refused to
allow access from the birth does not mean that there is no family life
in the sense of Article 8 (Art. 8) of the Convention.The applicant
considers that the interference with his family life was not provided
by law, as the court's decision not to allow direct contact did not
take into account the child's interest, but the mother's wishes. The
applicant also contends that there was no evidence to support the
conclusion that direct contact could be damaging for the child.
The Commission recalls that the concept of family life on which
Article 8 (Art. 8) is based embraces, even where there is no
cohabitation, the tie between a parent and his or her child, regardless
of whether or not the latter is legitimate (see Eur. Court HR,
Boughanemi v. France judgment of 24 April 1996, Reports 1996-II, no.
8, p. 608, para. 35). The existence or not of a "family life" falling
within the scope of Article 8 (Art. 8) of the Convention will depend
on a number of factors and on the circumstances of each particular case
(No. 12402/86, Dec. 9.3.88, D.R. 55, p. 224). Relevant factors in this
regard include the nature of the relationships between the parents and
the demonstrable interest in and commitment by the father to the child
both before and after the birth (see mutatis mutandis, Keegan v. the
United Kingdom, Comm. Report 17.2.93, para. 48, Eur. Court HR, Series
A no. 290, p. 27).
The Commission notes that in this case the applicant and the
child's mother were married and co-habited more than a year. Thus,
their relationship cannot be characterised as casual or fleeting. The
Commission also notes that the applicant has constantly requested to
have access to his child since March 1988. As to the dispute between
the parents concerning the issue of paternity, the Commission notes
that this appears to have been due to the behaviour of both parents.
In the light of these elements, the Commission finds that the
applicant's links with the child are sufficient to bring the
relationship within the scope of Article 8 (Art. 8) of the Convention.
Further, the Commission considers that the right to respect for
family life within the meaning of Article 8 (Art. 8) of the Convention
includes the right of a divorced parent who is deprived of custody
following the break-up of the marriage to have access to or contact
with his child. The State may not interfere with the exercise of that
right otherwise than in accordance with the conditions set out in
Article 8 para. 2 (Art. 8-2) (cf. Hendricks v. the Netherlands, loc.
cit., para. 94).
The Commission notes that the refusal to allow direct contact
between the applicant and his child constitutes an interference with
the applicant's right to family life within the meaning of Article 8
(Art. 8) of the Convention.
The Commission must therefore examine whether the interference
complained of was justified under Article 8 para. 2 (Art. 8-2) of the
Convention, i.e. whether the interference was in accordance with the
law, had an aim which was legitimate and was necessary in a democratic
society.
The Commission observes that the decisions taken by the domestic
courts were based on sections 1(2) and 91(14) of the Children Act
1989. As regards the legitimate aim, the Commission has constantly
held that in assessing the question of whether or not the refusal of
the right of access to the non-custodial parent was in conformity with
Article 8 (Art. 8) of the Convention, the interests of the child
predominate. The interference therefore has a legitimate aim insofar
as it has been made for the protection of the child's interests (cf.
No. 7911/77, Dec. 12.12.77, D.R. 12, p. 192; No. 12495/86, Dec.
7.12.87, D.R. 54, p. 187).
In the present case it is undoubted that the interference had the
purpose of protecting the child's interests. In this respect the
Commission refers to the decision of the High Court dated
16 March 1994, where it was held that in principle, it was in the
interest of the child to see and know her father. In the Court's
opinion, there were exceptions to this rule in cases where a conflict
appeared to exist between the parents and a direct access could be
harmful for the child's development.
The Commission must now consider whether the interference was
necessary in a democratic society for the protection of the child's
interests.
In examining whether the interference was necessary the
Commission does not intend to substitute its own judgement for that of
the domestic courts. Its function is to assess from the point of view
of Article 8 (Art. 8) the decision which those courts took in the
exercise of their discretionary powers.
The Commission recalls that although Article 8 (Art. 8) includes
a right for the parent to have measures taken with a view to his being
reunited with the child and an obligation for the national authorities
to take such action (Eur. Court HR, Hokkanen v. Finland judgment of
23 September 1994, Series A no. 299-A, p. 19, para. 53), such an
obligation is not absolute, since the reunion of a parent with a child
who has lived for some time with other persons may not be able to take
place immediately and may require preparatory measures being taken to
this effect. The nature and extent of such preparation will depend on
the circumstances of each case, but the understanding and co-operation
of all concerned will always be an important ingredient. Whilst
national authorities will have to do their utmost to facilitate
reunion, any obligation to apply coercion in this area must be limited
since the interests as well as the rights and freedoms of all concerned
must be taken into account, and more particularly the best interests
of the child and his or her rights under Article 8 (Art. 8) of the
Convention (see Eur. Court HR, Olsson v. Sweden (no. 2) judgment of
27 November 1992, Series A no. 250, pp. 35-36, para. 90; Hokkanen
judgment, loc. cit., p. 22, para. 58).
Furthermore, the Commission considers that it is an important
function of the law in a democratic society to provide safeguards in
order to protect children from harm and mental suffering resulting, for
instance, from the break-up of the relationship of their parents. In
such cases this purpose may be achieved by keeping the child away from
a situation which could be detrimental to his or her mental development
owing to the existence of a loyalty conflict vis-à-vis one or both of
the parents and the inevitable parental pressure put on him or her
causing feelings of insecurity and distress (cf. Hendricks v. the
Netherlands, loc. cit., para. 120).The Commission considers that
where there is a serious conflict between the interests of the child
and one of its parents, which can only be resolved to the disadvantage
of one of them, the interests of the child must, under Article 8
(Art. 8), prevail.
In the present case, the Commission is called upon to examine
whether the refusal of direct contact between the applicant and his
daughter as decided by the High Court on 16 March 1994 amounts to a
lack of respect for family life.
In doing so, the Commission will take into consideration not only
the proceedings which led to the High Court's judgment of
16 March 1994, but all the previous proceedings concerning the
applicant's access to his child, as they form the background to the
applicant's de jure or de facto lack of access to his daughter.
As regards the background of the present case, the Commission
notes that, since 17 August 1988 and until 20 May 1993, the applicant
had been granted access to his child on a number of occasions.
However, except for the meetings of 15 February 1992 and 8 August 1992,
his visiting rights remained unenforced, due either to the mother's
blanket refusal to allow access or to the child's refusal to see her
father.
The Commission observes that, in order to enforce the applicant's
right to access, the Court committed the mother on one occasion to
24 hours' imprisonment on 8 November 1988. However, due to the
mother's obduracy and also as a result of the growing inner conflict
of the child, most of the subsequent visits could not take place.
The Commission notes that it was in the light of these elements
that the High Court was called upon on 16 March 1994 to decide on the
applicant's right.
The Commission finds that the national courts carefully
considered the applicant's fresh application for contact. The
Commission notes in the first place that the case was decided by Judge
Counsell, the same judge who had handled the previous applications for
contact and who, therefore, had very close and long-running experience
of the case.
The Commission notes the actions taken by Judge Counsell in order
to allow attempts at conciliation between the applicant and the mother
of the child. It also notes that Judge Counsell had a careful look at
the history of the case and acknowledged the applicant's positive
behaviour throughout the previous proceedings.
The Commission notes that Judge Counsell took into account, on
the one hand, the psychiatrist's report suggesting that forcing direct
contact for the time being would be counter-productive and damaging for
the child, and on the other hand, the fact that the child had expressed
the view that at that time she did not want to see the applicant,
although she thought that at some time in the future she might want to
do so. The Commission also notes that the national courts confirmed
that in taking their decisions, the welfare of the child was paramount.
Without overlooking the distress and suffering caused to the applicant
by the absence of direct contact with his child, the courts considered
that, given the persisting difficulties between the parents, the child
had a serious loyalty conflict vis-à-vis her mother which could become
detrimental to her mental development if she was forced to have direct
contact with the applicant for the following five years.
The Commission also notes that the courts decided that, in order
to facilitate reunion in the future, indirect contact should be
maintained between the applicant and his daughter by way of cards,
reports from the child's school and photographs.
In these circumstances, the Commission is satisfied that the
domestic courts, bearing in mind the competing interests and the
difficulties in reconciling the applicant and the child's mother, have
done their utmost to facilitate reunion between the applicant and his
child.
Accordingly, the Commission, having regard to the margin of
appreciation enjoyed by the national authorities, concludes that the
interference with the applicant's right to respect for his family life,
being proportionate to the legitimate aim pursued, was justified under
Article 8 para. 2 (Art. 8-2) as being necessary in a democratic society
for the protection of the rights and freedoms of another person, namely
the child concerned.
It follows that this part of the applicant is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Commission.
Insofar as the applicant invokes lastly Article 14 (Art. 14) of
the Convention, he has failed to substantiate his complaint, which
accordingly must also be rejected as being manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy