AS TO THE ADMISSIBILITY OF
Application No. 13145/87
by James BURNS
against the United Kingdom
The European Commission of Human Rights sitting in private on
4 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 June 1985
by James BURNS against the United Kingdom and registered on 17 August
1987 under file No. 13145/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1943 and resident
in London. The facts as submitted by the applicant may be summarised
as follows.
The applicant married his second wife on 8 April 1975. Two
children to the marriage were born, a daughter W. on 13 June 1976 and
a son T. on 30 December 1979. The applicant's wife's twin sister came
to live at the applicant's home shortly after the marriage and she
slept in the same bedroom as the applicant and his wife. On
19 January 1977 she also gave birth to a daughter C., of whom the
applicant was the father. The situation in the home broke down in or
about 1980, when the applicant's wife and her sister left with their
children to live with their parents. Following his wife's refusal of
access to their two children, the applicant took the two children W.
and T. to live with him in London on 22 July 1980. The applicant's
wife obtained a court order on 23 July 1980 for return of the children
and an injunction restraining the applicant from molesting his wife
and her sister or going to where they lived. On 13 August 1980, the
applicant applied to the County Court for access. On 20 August 1980,
he was granted access, to be supervised by a supervising officer. The
access however never took place and the applicant complains this was
as a result of the attitude of the supervising officer. On
11 September 1980 the applicant paid a visit to his wife and her
sister. Following the visit, the applicant was arrested by the police
on a charge of rape brought against him by his wife's sister. The
applicant was tried for rape in June 1981 and acquitted. Access had
meanwhile been withdrawn by the Court on 9 December 1980 pending the
outcome of the criminal charges. The applicant was later charged with
assaulting his wife and his mother-in-law when he went to his wife's
home in breach of an injunction. He was sentenced to 12 months
imprisonment on 16 July 1981.
The applicant made his daughter by his ex-wife's sister a ward
of court in October 1981 but was unsuccessful in obtaining access to
either this daughter or to his children by his ex-wife. On 5 June
1981, the High Court had ordered that the applicant should have no
access to the three children until further order. This was confirmed
by the Court on 11 November 1981, when the Court also attached a power
of arrest to the order in the eventuality that the applicant attempt
to disobey. On 19 November 1981, the applicant's wife was granted a
decree absolute of divorce. The question of access was considered
again by the Court on 9 July 1982 but again refused.
Frustrated by events and by the handling of his case by his
legal advisers the applicant went to his ex-wife's house on 19 December
1982 with three other men and took his three children away. The
applicant was arrested the next day and charged with kidnapping, two
offences of childstealing contrary to Section 56 of the Offences
against the Person Act 1861 and two offences of taking an unmarried
girl away from their guardian without lawful authority contrary to
Section 20 of the Sexual Offences Act 1956. He was also charged with
assault and criminal damage. The applicant was detained on remand
until his trial. The applicant protested to the various magistrates
courts before which he appeared that he could not lawfully be charged
with childstealing. He petitioned the Home Secretary to the same
effect but with no success. His trial began in October 1983. The
judge quashed the charge of kidnapping and the two charges of
childstealing, parents being exempted by statute from prosecution for
the latter offence. The prosecution substituted a charge of
conspiracy to steal children, which was not subject to that exemption.
After a six day trial the applicant was acquitted on 10 October 1983
of the assault charge but was found guilty of criminal damage and of
conspiracy to steal children. The jury was discharged from giving a
verdict on the other charges under the Sexual Offences Act 1956. The
applicant was sentenced to 2 1/2 years imprisonment.
The applicant appealed against conviction and sentence. He
argued inter alia that it was either not possible or oppressive to
convict a father of conspiracy to commit an offence for which he was
exempt from prosecution. On 6 February 1984, his appeal against
conviction for conspiracy was dismissed but his appeal against
sentence upheld. The Court of Appeal substituted a lesser sentence,
with the effect that the applicant was released immediately. They
declined to certify a point of law of public importance for the
purpose of appeal to the House of Lords.
Following the House of Lord's ruling in R v. Daly, a case
which also concerned charges against a father for kidnapping his own
children, the applicant attempted to lodge a second appeal. This was
dismissed on 10 October 1985, the Court stating that it had no power
to change its previous decision.
Following his release from prison, the applicant applied to
the High Court requesting access to the children W., T. and C. The
applicant had resumed care of children of his previous marriage and
considered that he had started afresh and was able to demonstrate a
stable home background. On 3 July 1984, the Registrar adjourned the
matter pending the outcome of the applicant's application for legal
aid against the applicant's wishes. Following the grant of legal aid,
there were further proceedings before the Registrar on 17 December
1984 but the matter was again adjourned, in order for the parties to
file affidavits and for the court welfare officer to file a report on
the question of access to the children. The case was set down for
further directions following a summons issued by the applicant on 26
June 1985, when the Court ordered that a date for hearing be fixed.
The applicant had also applied to the Registrar to subpoena 9
witnesses to appear at the hearing. The Registrar refused to grant 5
of the subpoenas, which concerned several police officers, a
journalist, an employee of the B.B.C. and a paediatrician. The
journalist however did attend the hearing and the paediatrician
submitted a report in writing.
After what the applicant describes as wilful delays on the
part of the solicitors on both sides, the hearing took place on 12-13
November 1985 before the High Court. The judge after hearing the
evidence however refused the applicant's application for access. In
his judgment, the judge detailed the past history of the applicant's
behaviour, noting that the applicant had served a prison sentence for
assault on his ex-wife and her mother, and that he had also served
three months in prison for threatening to kill the children by his
first marriage. He found that the children were now well-settled with
their mothers and showed no interest in their father: T. had no memory
of the applicant and W.'s and C.'s memories were of an unhappy home
and of the snatching, which had been upsetting to them. The judge
stated that, in light of the past history, the applicant's ex-wife and
her sister regarded the applicant with great anxiety and that the
applicant would introduce rancour into their lives. He concluded that
access would inevitably disturb and unsettle the children and that in
view of the applicant's behaviour it was not surprising that access
had been refused.
The applicant reapplied to the Court on 17 July 1986. The
judge reviewed the previous decision and found that none of the
circumstances of the situation had since changed. He found that the
evidence produced by the applicant to indicate that previous evidence
before the Court had been inaccurate (e.g. that while his ex-wife's
sister had stated that the applicant had kicked her mother several
times, the mother had herself stated that it was only once) did not
affect the real issue before the Court. The judge found that access
would only disrupt the children's lives and upset the security of
their homes and accordingly dismissed the application. The applicant
appealed to the Court of Appeal but his appeal was dismissed on
3 November 1986.
COMPLAINTS
1. The applicant complains of his arrest on 20 December 1982,
alleging that the police acted without a judge's warrant or court
order. He complains that he was held on remand and refused bail on
unjustifiable charges. The applicant invokes Article 5 para. 1 (Art. 5-1) and
Article 5 para. 4 (Art. 5-4) of the Convention.
2. The applicant complains of the failure of the police to
notify him of the proper charges against him at the time of his arrest
and of not being informed of the conspiracy charge until ten months
later. He invokes Article 5 para. 2 (Art. 5-2) of the Convention. He also
complains of being charged and convicted of conspiracy to commit an offence to
which he had a statutory exemption from prosecution. He invokes Article 7
para. 1 (Art. 7-1) of the Convention in this respect. He further complains the
decision of the Court of Appeal upholding his conviction was wrong in law. He
alleges the Court paid too much attention to his criminal record. He invokes
Article 6 para. 1 (Art. 6-1) in this context.
3. The applicant also complains of being refused access to his
children by the courts and of the failure of court officials to
enforce the order of access granted on 20 August 1980.
4. Lastly, the applicant complains in relation to the access
proceedings of being refused subpoenas for witnesses to appear and
that he was thus unable to defend himself against the accusations of
his wife and her sister. He invokes Article 6 para. 1 (Art. 6-1) and Article 6
para. 3 (d) (Art. 6-3-d) of the Convention in this respect. He also complains
that his ex-wife and sister-in-law gave perjured evidence in the court
proceedings and complains that the courts and the Director of Public
Prosecutions (D.P.P.) have failed to take any action against them, either for
contempt of court or perjury contrary to Article 6 (Art. 6) of the Convention.
He complains further of the delay in the proceedings which he brought to apply
for access on his release from prison, and of refusals of legal aid. The
applicant also invokes Article 14 (Art. 14) of the Convention, alleging that
courts refuse to believe or listen to the evidence of fathers in child access
proceedings, whereas they accept the unsupported evidence of mothers.
THE LAW
1. The applicant has complained that he was arrested without
proper authority and held on remand on unjustifiable charges. He
invokes Article 5 paras. 1 and 4 (Art. 5-1, Art. 5-4) of the Convention.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a
violation of this provision as, under Article 26 (Art. 26) of the Convention,
it may only deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
In the present case the applicant failed to institute
proceedings alleging false imprisonment or apply for habeas corpus
to determine the legality of his detention. The applicant has,
therefore, not exhausted the remedies available to him under the
United Kingdom law. Moreover, an examination of the case, as it has
been submitted, does not disclose the existence of any special
circumstances which might have absolved the applicant, according to
the generally recognised rules of international law, from exhausting
the domestic remedies at his disposal.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and his
application must in this respect be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
2. The applicant also complains, in the context of the criminal
proceedings brought against him, that he was not notified at the time
of his arrest of the conspiracy charge, that he was charged and
convicted of conspiracy to commit an offence in regard to which he had
a statutory exemption and that the Court of Appeal acted wrongly in
dismissing his appeal. He complains of a violation of Article 5 para. 2
Art. 5-2) and of Articles 6 and 7 (Art. 6, Art. 7) of the Convention.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a
violation of this provision as Article 26 (Art. 26) of the Convention provides
that the Commission "may only deal with the matter ... within a period
of six months from the date on which the final decision was taken".
According to the Commission's constant jurisprudence the "final
decision" within the meaning of Article 26 (Art. 26) refers solely to the final
decision involved in the exhaustion of all domestic remedies according to the
generally recognised rules of international law. In particular, only a remedy
which is "effective and sufficient" can be considered for this purpose (see
e.g. No. 918/60, Dec. 18.9.61, Collection 7, pp. 108, 110 and No. 654/59, Dec.
3.6.60, Yearbook 4, pp. 277, 283).
The Commission finds that, in the present case, the
applicant's application for a rehearing of his appeal was not an
effective remedy under the generally recognised rules of international
law. The Commission recalls that in dismissing this application, the
Court of Appeal stated that it had no power to change its previous
decision. Consequently, the decision regarding this petition cannot
be taken into consideration in determining the date of the final
decision for the purpose of applying the six months' time-limit laid
down in Article 26 (Art. 26). The final decision regarding the applicant's
conviction is accordingly the decision of the Court of Appeal which
was given on 6 February 1984, whereas the present application was
submitted to the Commission on 6 June 1985, that is more than six
months after the date of this decision. Furthermore, an examination
of the case does not disclose the existence of any special
circumstances which might have interrupted or suspended the running of
that period.
It follows that this part of the application has been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
3. The applicant complains of being refused access to his
children by the courts and of the failure of court officials to
enforce the order of access granted on 20 August 1980.
Article 8 (Art. 8) of the Convention 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 in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission notes that the applicant was refused access to
his three children on a number of occasions. Insofar as these
refusals occurred more than six months before the introduction of this
application on 6 June 1985 and insofar as the applicant complains of
the failure to implement the access order of 20 August 1980 the
applicant has again failed to observe the six months period provided for
in Article 26 (Art. 26) and these complaints must be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
The applicant however applied before the High Court for access
to his children on 13 November 1985 and was refused. A renewed
application was refused on 17 July 1986 and his appeal against this
refusal dismissed on 3 November 1986. The Commission must therefore
consider whether these decisions violate the applicant's right to
respect for his family life protected by Article 8 (Art. 8) of the Convention.
According to the case-law of the Commission and the Court
the mutual enjoyment by parent and child of each other's company
constitutes a fundamental element of family life. The termination or
refusal of access to a child normally amounts to an interference with
the right to respect for family life protected by Article 8 para. 1 (Art. 8-1)
of the Convention (see e.g. Eur. Court H.R., W v. the United Kingdom judgment
of 8 July 1987, Series A no. 121-A, p. 27, para. 59 and W v. the United
Kingdom, Comm. Report 15.10.85, para. 99, Eur. Court H.R., Series A no.
121-A, p. 45).
The Commission considers that, in the present case, the
decisions to refuse the applicant access to his children constitute an
interference with his right under Article 8 para. 1 (Art. 8-1) of the
Convention.
It must therefore be examined whether this interference is
justified under the second paragraph of Article 8 (Art. 8) of the Convention.
The Commission notes that the decisions of the courts were
taken in the context of the wardship juridiction and were therefore in
accordance with the law. The Commission further finds that the
decisions were taken in the interest of the three children and
therefore pursued the legitimate aims of "the protection of health and
morals" and "the protection of the rights and freedoms of others".
As regards the necessity of the interference the Commission
recalls that the courts had found in view of the past history of the
applicant's often violent behaviour that the children had only unhappy
memories of the applicant, in particular in relation to the snatching
and that access would only disrupt their lives and upset the security
of their home. Having examined the judgments of the English courts
the Commission considers that there were sufficient reasons for the
conclusion that it was necessary to refuse the applicant access to his
children. The Commission finds, therefore, that the decisions to
refuse access were "necessary in a democratic society" within the
meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant also complains of a number of matters concerning
the access proceedings heard before the High Court. He complains of
being refused subpoenas to compel witnesses to appear, of the delays
in the proceedings and of refusals of legal aid. He also complains
that his ex-wife and her sister gave perjured evidence, in respect of
which the courts and the D.P.P. refused to take any action, and that
in cases concerning children courts discriminate against fathers in
preferring the evidence given by mothers. He invokes Article 6 paras.
1 and 3 (d) (Art. 6-1, Art. 6-3-d) and Article 14 (Art. 14) of the Convention.
a) Insofar as the applicant complains that no prosecution for
perjury proceedings for contempt of court have been brought against
his ex-wife and her sister, the Commission recalls that the right
under Article 6 para. 1 (Art. 6-1) to have a criminal charge determined is only
a right for the accused and not a right for the victim of the alleged criminal
offence or for anyone who makes a charge against another. Accordingly the
applicant has no right under Article 6 para. 1 (Art. 6-1) of the Convention to
have criminal proceedings instituted against his ex-wife or her sister (see
e.g. No. 7116/75, Dec. 4.10.76, D.R. 7 p. 91). It follows that this complaint
is incompatible ratione materiae with the provisions of the Convention within
the meaning of Article 27 para. 2 (Art. 27-2).
b) Insofar as the applicant complains of refusals of legal aid
to pursue proceedings for access, the Commission recalls that no right
to free legal aid in civil proceedings is as such included among the
rights and freedoms guaranteed under the Convention, although denial
of legal aid could in certain circumstances amount to a failure to
ensure a fair hearing under Article 6 para. 1 (Art. 6-1) of the Convention
(e.g. Eur. Court H.R., Airey judgment of 9 October 1979, Series A no. 32). The
Commission finds no evidence in the present case however to suggest that any
refusal of legal aid effectively prevented the applicant from obtaining access
to court or deprived him of a fair hearing. It notes in this context that in
1984 the applicant was granted legal aid for the purpose of applying for
access. It follows that this complaint is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
c) The applicant has also complained of the delay in the
proceedings which he instituted in the High Court to apply for access
to his children on his release from prison.
Article 6 para. 1 (Art. 6-1) of the Convention provides, inter alia,
that:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time...."
The Commission must first decide whether the proceedings in
question can be said to have concerned the applicant's civil rights.
The Commission recalls that the applicant was applying to the High
Court in its wardship jurisdiction for a restoration of access to his
children. The case-law of the Commission and the Court shows that
proceedings which determine a parental right of access fall within the
scope of Article 6 para. 1 (Art. 6-1) of the Convention (see e.g. Eur. Court
H.R., W v. the United Kingdom judgment of 8 July 1987, Series A
no. 121-A, pp. 32-35, paras. 72-79). The Commission therefore finds
that Article 6 para. 1 (Art. 6-1) was applicable in the proceedings at issue.
The constant case-law of the Convention's organs establishes
that the reasonableness of delay in civil proceedings is to be
assessed according to the particular circumstances and having regard,
notably, to the conduct of the applicant and the competent
authorities, the complexity of the case, what is at stake for the
applicant in the proceedings and the period of delay itself (see e.g.
Eur. Court H.R., Buchholz judgment of 6 May 1981, Series A no. 42).
The period of delay complained of in the present case follows
the institution of proceedings by the applicant on a date unspecified
following his release from prison in February 1984. It appears that
the matter first came before the Registrar of the High Court on 3 July
1984, when it was adjourned against the wishes of the applicant
pending the outcome of the applicant's legal aid application.
Following the grant of legal aid to the applicant, the matter again
came before the Registrar on 17 December 1984 when he ordered the
parties to file affidavits and the court welfare officer to prepare a
report concerning the question of access to the children. On 26 June
1985 on application by the applicant, the Registrar ordered the matter
to be set down for a hearing which finally took place on 12-13 November
1985. It accordingly appears that at least 16 months elapsed between
the institution of proceedings and the hearing of the applicant's
application for access.
The Commission notes that the applicant was concerned to deal
with the proceedings as speedily as possible and that it was following
his summons that the court ordered the matter to be set down for trial.
It further notes that the applicant himself attributes part of blame
of the length of the proceedings to wilful delay on the part of both
his own and his ex-wife's solicitors.
With regard to the complexity of the proceedings, the
Commission notes that the application for access involved the
applicant and his ex-wife and her sister as parties. While it does
not appear that there was a legally complex issue to be determined,
the Commission finds a certain degree of factual complexity inherent
in the case, which involved a long and complicated history of conflict
between the parties. The Commission notes in this respect that the
Court found it necessary to adjourn for evidence in the way of
affidavits and a court welfare report to be filed, and that this
attributed to part of the delay complained of by the applicant.
Moreover, the proceedings at issue related to a request of the
applicant for access to children aged approximately 7 1/2, 7 and 4, on
his release from prison. In proceedings concerning access to and
custody of children, the age of children and the passage of time are
particularly relevant, since procedural delay may result in a de facto
determination of the question before the hearing before the Court
takes place (see e.g. Eur. Court H.R., H v. the United Kingdom
judgment of 8 July 1987, Series A no. 120). The Commission notes
however in the present case that the children were still living with
their mothers and were not, as in H v. the United Kingdom (loc. cit.),
in the process of placement and bonding with prospective adopters.
Furthermore, there is no indication that the passage of time involved
in the proceedings effected the decision of the Court, which examined
the application thoroughly on its merits. It does not therefore
appear that the length of proceedings prejudiced the applicant in the
way found in H v. the United Kingdom judgment (loc. cit.). The
Commission also recalls that access had been refused to the applicant
on four occasions before he served his prison sentence for conspiracy
to steal children.
Having examined the particular circumstances of the present
case the Commission finds that the length of the proceedings
complained of did not exceed what can be regarded as "reasonable"
of the Convention.
d) Finally, the Commission has examined the applicant's
remaining complaints concerning Article 6 paras. 1 and 3 (d)
(Art. 6-1, Art. 6-3-d) and Article 14 (Art. 14) of the Convention, as
they have been submitted by him.
However, the Commission finds that they do not disclose any appearance
of a violation of the said provisions. It follows that this part of
the application is also manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)