AS TO THE ADMISSIBILITY
Application No. 12807/87
by C.
against the United Kingdom
The European Commission of Human Rights sitting in private on
3 March 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 July 1985
by C. against the United Kingdom and registered on 13 March
1987 under file No. 12807/87;
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 facts as submitted by the applicant, an Italian citizen
born on 29 August 1949 living in Naples, Italy, and an engineer by
profession, may be summarised as follows.
The applicant was married on 12 July 1980 and his wife is a
British citizen currently living in England. There are two children
of the family, a son born on 13 October 1982 and a daughter born on
20 December 1985. Both children hold dual nationality.
The applicant states that during the course of the first half
of 1985, whilst he and his wife were living in France, it became
apparent that there were a number of problems with their marriage.
The applicant states that his wife became accusatory and critical of
his behaviour and she spoke of separation. The applicant states that
he tried to avoid provocation from his wife but that on one occasion
he had to slap his wife to stop her from telling the son demeaning
things about the applicant.
After this incident the applicant's wife got drunk and
threatened suicide. The applicant calmed her down and a few days
later took her to a doctor who gave her sedatives. That Easter the
applicant, his wife and son went to Italy for a visit. The
applicant's wife during the visit argued with the applicant's
relatives and slapped the applicant's mother.
On 10 April 1985 the applicant's wife insisted on going to
England and taking the son with her. She left on 12 April 1985.
Shortly after her return to England, she informed the applicant that
she was pregnant and that she intended to return to the applicant's
home shortly.
However, on 2 May 1985 the wife wrote to the applicant saying
that she could never return to Italy or France explaining some of the
difficulties in their relationship and in particular some of the
problems she had experienced with the applicant's family and way of
life. The wife saw that the only chance for their relationship to
continue was if the applicant went to live and find work in England.
In this letter, the wife informed the applicant that she would be
making the son a ward of court.
On 3 May 1985, in the High Court, the son was made a ward of
court. The applicant states that he was not informed about the
wardship proceedings, and was not served with the documents prior to a
hearing which took place on 5 June 1985 which confirmed the wardship
of the son, awarding care and control to the applicant's wife and
allowing the applicant liberty to apply for access. At the hearing on
5 June 1985 the court was aware that the applicant had not been served
with a summons notifying him of the proceedings, but evidence was
adduced by the wife that the applicant had decided not to come
within the jurisdiction because of the wardship proceedings. The
applicant was served with notice of the wardship order on 13 June 1985
when he visited England.
The applicant states that he made several attempts at a
peaceful reconciliation with his wife, which were nonetheless rejected
by her on the ground that she disliked Italy and the Italians.
The applicant states that he took advice from an English
solicitor on the question of whether to appeal against the order of
wardship on 5 June 1985. He was not, however, able to obtain legal
aid and the funds, approximately £12,500, he held in a joint bank
account with his wife in England were not available to him, since the
account required his signature and his wife's for withdrawals. He did
not appeal against the decision of 5 June 1985, but was advised to
file an affidavit stating that he would not remove the son from the
jurisdiction of the High Court. He filed this affidavit as he was
advised that unless he did so he would not be able to obtain access to
his son.
The applicant subsequently instituted proceedings in England,
applying to the High Court to have the wardship discharged. He
obtained legal aid with some personal contribution and was represented
by counsel at the hearing which took place on 6 October 1986. The
application was turned down. The wardship of the son was confirmed
and the applicant's daughter, who had been born since the previous
proceedings, was also made a ward of court and her name was changed
against the applicant's will. The applicant was granted access to his
son during his visits to England, for three hours on school days, and
for four hours on non-school days. He was also granted access to his
daughter for periods of a half hour in the company of his wife.
The applicant instructed his solicitors to appeal against the
decision of 6 October 1986. On 8 December 1986 however his legal aid
certificate was discharged on grounds that the applicant had no
prospect of success in the proposed appeal and that he did not require
legal representation within the wardship proceedings. His funds in
England are still inaccessible and cannot be used to cover his legal
fees.
The applicant is concerned for the safety of his son and
daughter, and he states that his wife has a drinking habit and that
her brother, with whom she is living, keeps in the house a three and a
half metre python which is fed on live rabbits and mice. The
applicant states that his wife is suicidal, and that he is anxious
about her sexual promiscuity.
The applicant finished working in France in October 1985 and
returned to live in Naples, Italy.
COMPLAINTS
The applicant complains, in context of the wardship
proceedings, that he has not been properly informed of the nature and
cause of the accusation against him, that he has not been given
adequate time and facilities for the preparation of his defence, that
he has not been given the right to defend himself and that he has not
been given the assistance of an interpreter as guaranteed by Article 6
para. 3 (a), (b), (c) and (e) of the Convention. He also complains of
a refusal of legal aid in order to appeal.
The applicant further complains that his right to respect for
family life has been interfered with by the courts making his son a
ward of court. He invokes Article 8 of the Convention in this
respect.
The applicant further complains that the obligatory
confinement in England and Wales of his son against the applicant's
will and against his son's will is contrary to the right to liberty
safeguarded by Article 5 of the Convention. The applicant finally
complains that his son has been deprived of his right to liberty of
movement and the right to leave their own country contrary to Article
2 paras. 1 and 2 of Protocol No. 4 to the Convention.
THE LAW
1. The applicant complains that in the wardship proceedings he
has not been properly informed of the nature and cause of the
accusation against him, that he has not been given adequate time and
facilities for the preparation of his defence, that he has not been
given the right to defend himself and that he has not been given the
assistance of an interpreter as guaranteed by Article 6 para. 3 (a),
(b), (c) and (e) (Art. 6-3-a-b-c-e) of the Convention. He also
complains of being refused legal aid to appeal against the court's
decision of 6 October 1985.
Article 6 para. 1 (Art. 6-1) the Convention provides:
"1. 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 by an independent and
impartial tribunal established by law..."
The Commission notes first of all that the rights protected
under Article 6 para. 3 (Art. 6-3) relate only to criminal
proceedings. In civil proceedings no such rights are, as such,
included in the rights and freedoms guaranteed by the Convention,
although the complaints made by the applicant could, in certain
circumstances, amount to a failure to ensure a fair hearing under
Article 6 para. 1 (Art. 6-1) of the Convention. The Commission has
considered whether the applicant, who failed to appeal, can
nevertheless be said to have exhausted domestic remedies in relation
to the complaints concerning the proceedings before the High Court, as
required by Article 26 (Art. 26) of the Convention, but finds it
however unnecessary so to decide. On an examination of the facts of
the case as presented by the applicant, the Commission finds that
there is no indication that the procedural matters on which the
applicant relies adversely affected the fairness of the hearing. He
has not shown that he did not have adequate time and facilities for
the preparation of his case and the Commission notes that the
applicant initially received legal aid and legal advice and was
represented by a barrister at the hearing on 6 October 1986.
Furthermore while there was no interpreter available to the applicant,
he has not shown that he did not sufficiently understand the
proceedings or that in this case an interpreter was necessary to
ensure a fair hearing.
Insofar as the applicant complains of a withdrawal of legal
aid for his appeal, the Commission observes that no right to free
legal aid in civil proceedings is as such, included in the rights and
freedoms guaranteed by the Convention, although the case-law of the
Commission and Court has established that refusal of legal aid could
in certain circumstances amount to denial of effective access to court
(e.g. Eur. Court H.R., Airey judgment of 9 October 1979, Series A
No. 32). The Commission also recalls that the restriction on the
availability of legal aid to cases with reasonable prospects of
success would not normally constitute a denial of access to court,
unless it could be shown that the decision of the relevant authority
was arbitrary (Application No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).
In the present case, it appears that legal aid was refused on the
grounds that the applicant had no prospect of success and that at that
time he did not require legal representation within the wardship
proceedings. Since it also appears that the applicant would have been
able to pursue the appeal himself, the Commission finds that the
applicant has failed to establish that he has been denied effective
access to court contrary to Article 6 (Art. 6)of the Convention.
In these circumstances the Commission finds no appearance of a
violation of the provisions of Article 6 (Art. 6) of the Convention.
It follows that these complaints are manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains that his right to respect for
family life has been interfered with by the courts making his children
wards of court.
Article 8 (Art. 8) 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."
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 the 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 appeal to the
Court of Appeal against the order of the High Court making both
children wards of court or to seek variation of the conditions of
access to them and has, therefore, not exhausted the remedies
available to him under English law. While it is true that the
applicant has also complained of a lack of legal aid for an appeal,
the Commission has found that he would have been able to pursue the
appeal himself and in those circumstances is not relieved from his
obligation to exhaust the remedies available to him under domestic
law. Moreover, the refusal of legal aid, on the ground, inter alia,
that the applicant had no prospect of success in the proposed appeal
proceedings, does not necessarily imply that the appeal was in the
circumstances an ineffective remedy, which the applicant was not
required to exhaust. An examination of the case therefore 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
conditions as to the exhaustion of domestic remedies and that this
part of his application must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
3. The applicant also complains that his son is obligatorily
confined in the United Kingdom and prohibited from leaving, contrary
to Article 5 para. 1 (Art. 5-1) of the Convention and Article 2 of
Protocol No. 4 (P4-2).
Article 25 (Art. 25) of the Convention provides however that the
Commission may only receive petitions from a "... person,
non-governmental organisation or group of individuals claiming to be a
victim of a violation ...". It follows from this provision that the
person who submits a petition must himself claim to be the victim of
the alleged violation. Accordingly insofar as the applicant complains
of the restrictions imposed on his son, who is not applicant in the
present case, the application is incompatible ratione personae with
the provisions of the Convention and must be rejected under Article 27
para. 2 (Art. 27-2) of the Convention.
However even assuming that the applicant can be construed as
complaining on behalf of his son, or that he is authorised to do so,
the Commission finds that it is not necessary 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 the matter after all domestic
remedies have been exhausted according to the generally recognised
rules of international law.
The Commission notes that the applicant has himself already
agreed not to remove the son from the jurisdiction of the court in his
affidavit sworn after the hearing on 5 June 1985. The Commission
further notes that it was, and is, open to the applicant to apply to
the High Court in the wardship proceedings should he wish to take his
children out of England and Wales. He has, therefore, not exhausted
the remedies available to him under domestic law. Moreover, an
examination of the complaint 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
conditions as to the exhaustion of domestic remedies and that this
part of his application must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)