Application No. 11117/84
by E.M. and C.M.
against the United Kingdom
The European Commission of Human Rights sitting in private
on 7 May 1987, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
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 30 August 1984
by E. and C. M. against the United Kingdom and registered on 4
September 1984 under file N° 11117/84;
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 application is presented by Ms. E.M., born in 1948 and
her daughter, born out of wedlock in 1980 and concerns certain aspects
of the legal status of "illegitimate" children under Scots law.
The applicants are represented by Mr John Hanlon, Solicitor,
of Messrs McSherry, Halliday & Co., T. Gordon Coutts, Q.C., and
Douglas J. May, advocate.
The first applicant raised an action of affiliation and
aliment against Mr. J. in Kilmarnock Sheriff Court on 18 May 1983
She sought a finding that the defender is the father of the second
applicant, and an order for payment of aliment for her child. The
court was also asked to appoint the first applicant guardian of the
child under Section 4(2A) of the Guardianship of Infants Act 1925.
Mr J. stated, in his defence, that he was not the father of
the second applicant.
The parties to the action brought by the first applicant
lodged in court a joint minute stating that the first applicant and
Mr. C were willing to give samples of blood but that no competent
person could grant authority to obtain blood from the child. They
asked the court to appoint a curator ad litem to represent the
child's interest in the action and to remit the case to Court of
Session to enable the parties to seek its consent for a blood sample
to be taken from the child.
In the meantime, in January 1983, Sheriff Smith in Kilmarnock
Sheriff Court had ruled in the case of Susan Clarke that the
mother of an "illegitimate" child could not consent to take blood
tests for purposes of evidence in paternity proceedings since she did
not have the status of tutor of the child. He had advised the mother,
in that case, to petition the Court of Session, asking it to use its
special equitable jurisdiction to authorise the taking of blood tests.
On 26 April 1984 the Court of Session gave its order authorising the
taking of blood in the Susan Clarke case.
On 15 May 1984 the Sheriff refused the request made in the
joint minute, stating that the appropriate procedure was not to
transfer this action to the Court of Session, but to present a
separate petition to the Court of Session, asking it to use its
special equitable jurisdiction (nobile officium). He also denied
the first applicant's request to be appointed guardian on the basis
that Section 4(2A) does not apply where a child has a parent.
The first applicant, accordingly, petitioned the Court of
Session in August 1984. The petition stated that as the first
applicant was not the tutor of the child she was unable to give the
necessary consent to taking a blood test. It asked the Court of
Session to give its authority for a blood test to be taken.
On 4 October 1984 the Court of Session appointed Mr. Stein,
advocate, to be curator ad litem to represent the interests of
the second applicant (C.M.). The curator ad litem
lodged answers in July 1985 requesting that the petition be dismissed.
He stated that it was not competent for the court to grant authority to
take blood tests without the consent of the child concerned or of a
proper person on her behalf. He also alleged that no person is
lawfully entitled to give his consent.
Since the lodging of the application the law in Scotland
concerning children born out of wedlock has been changed by the Law
Reform (Parent and Child) (Scotland) Act 1986 which came into force on
8 December 1986.
Under Section 2 of the 1986 Act "a child's mother shall have
parental rights whether or not she is or has been married to the
child's father". Parental rights means "tutory, curatory, custody or
access, as the case may require and any right or authority relating to
the welfare or upbringing of a child conferred on a parent by any rule
of law" (Section 8).
Consent to the taking of blood samples from a pupil child can
now be granted by either his tutor or any person having custody or
care and control of him or by order of a court (Section 6 (2) and
(3)).
The first applicant is now competent, as the second
applicant's tutor, to consent to blood tests being taken from the
second applicant.
COMPLAINTS
Articles 8 and 14
The applicants complained of the following aspects of the
status of the "illegitimate" child under Scots law.
Under Scots law the parents of a "legitimate" child have the
rights of guardianship in respect of their child with the consequent
powers to act in the child's interest to grant consent to blood tests,
to administer the child's property, to raise court actions in respect
of pupil children and to consent to actions raised by minor children.
Moreover, a "legitimate" child has the right to the protection and
guidance of his parents or, in the event of his parents being dead, to
such guardians as are appointed to him by parental testament or by a
court under the Guardianship of Infants Act 1925.
An "illegitimate" child, on the other hand cannot have a legal
guardian. If the child has property an application has to be made to
the court for the appointment of a factor loco tutrix. If the
child, when a pupil, requires to raise an action, the action has to be
raised in the child's name and a curator ad litem appointed by
the court. Scots law denies to the mother the tutory or curatory of
her "illegitimate" child.
The mother and "illegitimate" child are not recognised by Scots
law as a family. Decisions in relation to the child's well-being and
property are required to be taken by a person outside the family.
Consequently, the law discriminates against parents and children in
the enjoyment of their right to respect for family life, contrary to
Articles 8 and 14 of the Convention.
OBJECT OF THE APPLICATION
The applicants sought a declaration that there is a breach of
the Convention in respect of their position and that of "illegitimate"
children and their mothers under Scots law. They sought also to
persuade the United Kingdom Government to promote legislation to amend
the law of Scotland.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 August 1984 and
registered on 4 September 1984. The Commission decided, on
10 July 1985, to give notice of the application to the respondent
Government and to request it to submit its observations in writing
before 8 November 1985 on the admissiblity and merits of the
applicants' complaints under Articles 8 and 14 (Art. 8, 14) of the Convention.
The observations of the respondent Government were received on
11 November 1985 and the applicants' observations in reply on
30 December 1985.
The Commission again considered the application on
13 May 1986 and decided to adjourn it pending the judgment of the
Court of Session in the applicants' case.
In the meantime the Law Reform (Parent and Child) (Scotland)
Act 1986 was given the Royal assent on 26 March 1986 and came into
force on 8 December 1986. The applicants' legal representatives
informed the Secretariat on 2 Febuary 1987 that, in view of the coming
into force of the 1986 Act, the applicants no longer sought to pursue
their application.
REASONS FOR THE DECISION
The Commission notes that the applicants complained under
Articles 8 (Art. 8) and 14 (Art. 14) of the Convention of the legal
status of a child born out of wedlock under the law of Scotland. It
further notes that the applicants now seek to withdraw their
application in view of the coming into force of the Law Reform (Parent
and Child) (Scotland) Act 1986 which inter alia has the effect of
conferring full parental powers on the first applicant in respect of
her child. Against this background, the Commission finds the
applicants no longer seek to pursue their application and that there
are no reasons relating to the general interest to continue an
examination of the application.
For these reasons, the Commission
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)