CURRIE v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 23418/94

                      by George CURRIE

                      against the United Kingdom

      The European Commission of Human Rights (First Chamber) sitting

in private on 12 October 1994, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

           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 21 August 1993 by

George Currie against the United Kingdom and registered on

7 February 1994 under file No. 23418/94;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a British citizen born in 1938 and resident in

Cardross. The facts as submitted by the applicant and as may be deduced

from the documents may be summarised as follows.

      The applicant and his wife separated in January 1989. There were

two  children of the  family, S. born in  1984 and I. born in 1985.

      The applicant initially enjoyed access visits to the children.

On 22 June 1989, the magistrates' court denied access to the applicant

after a hearing. The applicant did not appeal.

      The applicant made an application for access on 2 November 1989

in the divorce proceedings which had been instituted. His application

came before the County Court on 10 November 1989, when it was adjourned

for compilation of a welfare report. Interim access was refused on

15 December 1989 pending the welfare report.

      The court welfare officer's report was drawn up on 20 April 1990

and concluded that a psychiatric report should be obtained. An order

by consent was made on 18 May 1990 for joint instruction of a

psychiatric doctor. The doctor's reports were drawn up on 29 May 1990

and 1 June 1990.

      On 22 October 1990, the case came before County Court judge who

found that the court welfare officer had never been able to see the

children with the applicant. The case was adjourned by the judge with

a view to bringing it back before him on the earliest date available

in 1991.

      On 24 November 1990, the court welfare officer witnessed a visit

between the applicant and the children. The officer shortly afterwards

fell ill.  An addendum dated 28 November 1990 was added to her report.

      The case came back before the County Court judge on

2 October 1991. The welfare officer's report indicated that the access

visit had been successful and both children had been happy to see their

father.  Following a hearing on 2 October 1991, the matter was

adjourned by consent for a further period of access and observation.

      The applicant who had been represented by solicitor and counsel

during the proceedings at this stage decided to act in person.

      By 16 November 1991, S. was vigorously rejecting the applicant

and after a visit on 11 January 1992, I. refused to go on further

visits to the applicant.

      The case was reviewed by the County Court judge on

19 February 1992. By consent of the parties, it was ordered that the

review should be postponed until August 1992 the applicant undertaking

not to seek to meet the children and the mother undertaking to pass on

cards, presents and school reports.

      When the matter came back before the court for a hearing on

7 September 1992, the mother had made an application for access to the

applicant to end. After hearing the parties and witnesses and viewing

videotaped film taken by the applicant of access with his children, the

County Court judge held in his judgment of 14 September 1992 that in

view of the apparent distress which the children suffered in their

contacts with applicant due to his inappropriate behaviour, the

continuation of access would cause only harm. The applicant's

application for access was accordingly refused. The judge commented in

his judgment of the delay in the proceedings between October 1990 and

October 1991 attributing the lapse of time to the illness of the court

welfare officer "coupled with an apparent lack of concentration upon

the matter by solicitors or the court ".

      The Court of Appeal rejected the applicant's appeal on

17 May 1993 finding that no other order was possible in view of the

children's emphatic rejection of further contact. As regarded the delay

in the proceedings, it commented:

      "On October 1990 the matter came for the first time before

      . There had been a delay of some

      nine months and some eleven months between the time the

      made his application and this hearing. No

      satisfactory explanation has been given for this delay

      which is deplorable. The was at this time

      represented by solicitors and they ought to have seen that

      the matter was dealt with with much greater expedition...

      The had criticised the delays in the court

      procedure in his case ...He particularly criticises the

      delay in court welfare officers' reports and points out

      that delay in fact involved disobedience to court orders

      which is to be deplored. The delays have occurred; they are

      not the responsibility so far as we know of the mother; the

      and his solicitors should have been the driving

      force, because it was his application..."

      The applicant had wished to rely in his appeal on the videotaped

evidence shown before the County Court but although it had been in the

custody of the court the films proved untraceable. The Court of Appeal

held that it was not necessary in order to reach its decision to view

these films which had been seen at first instance by the judge, parties

and welfare officer.

      The House of Lords refused leave to appeal on 27 July 1993.

COMPLAINTS

      The applicant complains, inter alia, of being deprived of access

to his children; that the courts ignored and lost his evidence and

reached decisions wrong in fact, law and procedure and that the

proceedings took an unreasonable time. He invokes Articles 8 and 6 of

the Convention.

THE LAW

1.    The applicant complains of being deprived of access to his

children. He invokes Article 8 (Art. 8) of the Convention which

provides as relevant:

      "1.  Everyone has the right to respect for his ... family life

      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 finds in accordance with its established case-law

that the decision refusing the applicant access to his children

constituted an interference with his right to respect for his family

life under the first paragraph above (see eg. Eur. Court H.R., Eriksson

judgment of 22 June 1989, Series A no. 156, p. 27, 59).

      The Commission has consequently examined whether this

interference is justified under Article 8 para. 2 (Art. 8-2), namely,

whether it is "in accordance with the law" pursues one or more of the

legitimate aims enumerated in Article 8 para. 2 (Art. 8-2) and whether

it is "necessary in a democratic society" for one or more of those

reasons.

      The Commission recalls that access to the applicant's children

was refused by  the County Court and confirmed on appeal, in the

context of the exercise of the courts' jurisdiction in the pending

divorce action. The decision was taken on the basis of the courts'

assessment that further access would be detrimental to the children.

The Commission accordingly finds that the decision was  taken "in

accordance with law" and pursued the legitimate aims of protecting the

children's health and rights.

      The question remains whether the measure was necessary within the

meaning of Article 8 para. 2 (Art. 8-2). The case-law of the Commission

and Court establishes that the notion of necessity implies that the

interference corresponds to a pressing social need and that it is

proportionate to the aim pursued. Further in determining whether an

interference is necessary the Commission and Court will take into

account that a margin of appreciation is left to the Contracting States

who are in principle in a better position to make an initial assessment

as to the necessity of given measure (see eg. Eur. Court H.R., W. v.

the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27,

para. 59).

      When determining whether or not the decision refusing access was

necessary, the Commission observes that it is not its task to take the

place of the competent national courts and make a fresh examination of

all the facts and evidence. The Commission's task is to examine whether

the reasons adduced to justify the interference at issue are "relevant

and sufficient" (see eg. Eur. Court H.R., Olsson judgment of 24 March

1988, Series A no. 130, para. 68).

      The Commission recalls that the decision to end access was made

in light of the courts' findings as to the welfare of the children, in

particular, the distress access had caused to the children, the

inappropriate behaviour by the applicant and the children's refusal to

see the applicant. The Commission is satisfied that the decision was

not arbitrary or unreasonable and was supported by "relevant and

sufficient reasons".

      As regards the procedural requirements implied in Article 8

(Art. 8) of the Convention to ensure effective respect for family life,

the Commission notes that the applicant was represented initially in

the proceedings by solicitor and counsel, though after the consent

order of October 1991 he chose to represent himself in person. The

Commission is satisfied that the applicant was given the possibility

of putting forward any views which in his opinion would be decisive for

the outcome of the case. While there was delay (further considered

below) it does not appear that it led to a de facto determination of

the issues by mere effluxion of time or deprived the applicant of a

decision upon the merits of the case. The Commission finds that the

procedural requirements implicit in Article 8 (Art. 8) were complied

with and that the applicant was involved in the decision-making process

to a degree sufficient to provide him with the requisite protection of

his interest (see eg. Eur. Court H.R., H. v. UK judgment of 8 July

1987, Series A no. 120, pp. 27-28, paras. 87-90 and W. v. UK judgment,

loc. cit., pp. 28-29, pp. 63-65).

      The Commission therefore finds, bearing in mind the margin of

appreciation accorded to the domestic authorities, that the

interference in the present case was justified in the present case as

being "necessary in a democratic society" for the protection of the

health and rights of the children. Consequently, 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 about the decisions taken and the

procedures adopted by the courts. He particularly complains about the

delay in the proceedings. He invokes Article 6 para. 1 (Art. 6-1) which

provides as relevant:

      "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..."

i.    Insofar as the applicant complains about the decisions taken by

the courts, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention.  In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention.  The Commission refers, on this point, to its constant

case-law (see eg. No. 458/59, X v Belgium, Dec. 29.3.60, Yearbook 3

pp.222, 236; No. 5258/71, X v Sweden, Dec. 8.2.73, Collection 43 pp.71,

77; No. 7987/77, X v Austria, Dec. 13.12.79, D.R. 18 pp. 31, 45).

      The Commission notes that the applicant, inter alia, complains

that the courts ignored his evidence and lost his videotapes. The

Commission recalls that the videotapes were viewed in first instance

and the Court of Appeal did not find it necessary to see them on

appeal. As regards the assessment of the evidence, it is not for the

Commission to re-assess the factual or legal elements of the case

before the domestic courts, given that the decisions taken had a basis

in law and were, as found above, based on relevant and sufficient

reasons (see eg. Eur. Court H.R., Schenk judgment of 12 July 1988,

Series A no. 140, Barbera, Messegué and Jabardo judgment of

6 December 1988 and De Moor judgment of 23 June 1994, Series A

no. 292-A).

      The Commission concludes that the applicant was not in the

circumstances of the case deprived of a fair hearing within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention.

ii.   As regards the applicant's complaint about the delay in the

proceedings, the Commission recalls that the proceedings were

instituted by the applicant on 2 November 1989 and terminated on

27 July 1993, a period of almost three years nine months.

      According to the constant case-law of the Convention organs, the

reasonableness of the delay in civil proceedings must be considered

with regard to the circumstances of the particular case and with the

help of the following criteria: the complexity of the case, the conduct

of the parties and the conduct of the authorities dealing with the case

and what was at stake in the litigation for the applicant (see eg. Eur.

Court H.R. H. v. UK judgment of 8 July 1987, loc. cit. p. 59, para. 87-

71).

      In the present case, while the subject-matter of the proceedings

-issues of access to children- was not particularly complex, the

Commission has had regard to the sensitive nature of the decision-

making process in these types of case which frequently require the

compilation of expert reports based on observation over a period of

time. It recalls in the present case that the matter was adjourned

twice, with consent of the parties, for such reports to be prepared or

access to be observed.

      The Commission has had careful regard to the importance of what

was at stake for the applicant. The proceedings were decisive for his

future relationship with his children and in a case of such kind there

is a duty to exercise exceptional diligence in view of the risk that

the lapse of time may result in the de facto determination of the

matter before the court. There is however also a duty to ensure that

all the evidence which may be needed for the court to make a decision

of such importance to the applicant is collected and put before the

court. In the present case, the Commission is satisfied that the matter

was determined on the merits of the case, the necessary material being

before the court.

      As regards the conduct of the parties, both the first instance

judge and the Court of Appeal  respectively criticized the eleven month

gap between the applicant's application for access and its

consideration by the County Court on 22 October 1990 and the further

eleven month gap until the matter was brought back on 2 October 1991.

While the County Court itself or through the element of time lost

through the illness of its welfare officer cannot be immune from

incurring a degree of responsibility for the delay, the Commission

considers that the applicant's solicitors, who had brought the

application for access in divorce proceedings, bore primary

responsibility for ensuring the matter proceeded diligently. They did

not however take any steps to have the possible breaches of the court

orders involved in this lapse of time brought to the attention of the

County Court or otherwise take steps to expedite matters.

      Consequently, the Commission finds, having weighed all the

relevant circumstances that the proceedings, which involved three

instances, did not exceed a reasonable time within the meaning of

Article 6 para. 1 (Art. 6-1) 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.

      For these reasons the Commission unanimously

      DECLARES THE APPLICATION INADMISSIBLE.

      Secretary to the First Chamber   President of the First Chamber

     (M.F. BUQUICCHIO)                       (A. WEITZEL)

 

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