Application No. 15496/89
by G.
against the United Kingdom
The European Commission of Human Rights sitting in private
on 10 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 31 August 1989
by G. against the United Kingdom and registered on 14 September 1989
under file No. 15496;
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 1964 and resident
in T. He is represented by Sian Lewis-Antony, a barrister
practising for Interrights. The facts as submitted by the applicant
may be summarised as follows.
The applicant's daughter R. was born on 30 July 1985 and his
son M. on 15 April 1987. On 14 July 1987, the applicant's wife left
the applicant and the children to live with another man. On 16 July
1987, the children were made subject to a Place of Safety Order as a
result of immediate difficulties ensuing from the situation.
On 29 July 1987, the applicant was granted interim custody,
care and control of both children. Between 29 July - 19 August 1987,
the applicant's wife returned home and she and the applicant were
awarded joint interim custody. On 26 August 1987, the applicant's
wife left the matrimonial home permanently.
On 2 October 1987, the County Court ordered care and control
to be granted to the applicant and access to the applicant's wife.
On 5 January 1988, the court welfare officer applied to the
Court for a care order to be made in respect of the children under
section 43 of the Matrimonial Causes Act 1973. In her report dated
9 December 1987, the court welfare officer, while not doubting his
affection for the children, had expressed the view that the applicant
was not capable of caring for them. The Court made an interim care
order in favour of the local authority (Wiltshire County Council) but
ordered that the children remain in the applicant's custody.
On 2 February 1988, the Court placed the children in the care
of the local authority and granted the applicant weekly access of two
hours.
On 9 June 1988, the applicant's son M. died of an asthma
attack while in the care of the local authority.
On 5 July 1988, the applicant applied for increased access to
R. On 11 May 1988, the court welfare officer had stated that the
applicant had done his best to look after the children and recommended
that access be increased. The Court ordered weekly access of 2 1/2
hours for 3 weeks and thereafter 2 1/2 hours at fortnightly intervals.
On 4 October 1988, the Court reduced access further to
1 1/2 hours every 3 weeks. On 19 December 1988, there was a further
hearing before the Court to consider access by both the applicant and
his wife who had applied separately for access. The Social Services
of the local authority wished to reduce access further with a view to
securing R.'s long-term future with her new family. In her affidavit
of 14 December 1988, the senior social worker on the case, Mrs. B.,
gave the view that continued frequent access would be disruptive and
distressful for R.
The case was adjourned on application of the local authority
due to the illness of Mrs. B. The hearing was re-scheduled for
2 March 1989. On the day of the hearing the applicant sought an
adjournment since the court welfare officer was ill and unable to
attend the hearing. In her report of 23 September 1988, the officer
had stated that termination of access would be harmful to R. and
visits should be set at no less than once per month.
The judge refused an adjournment on the ground that it would
not be in the child's interest to adjourn further. After the hearing,
the judge reduced the applicant's access to 4 times per year.
The applicant did not appeal to the Court of Appeal against
the refusal of an adjournment.
COMPLAINTS
The applicant complained that he did not have a fair hearing
within the meaning of Article 6 para. 1 of the Convention since the
judge refused to order a short adjournment in order to allow the court
welfare officer to attend. The applicant also complained that his
right to respect for his family life had been violated by the order of
2 March 1989 restricting access. The failure to grant an adjournment
also violated Article 8 of the Convention since procedures determining
issues relating to family life must be such as to respect family life.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 August 1989 and
registered on 14 September 1989.
By letter dated 18 October 1989, the Commission's Secretariat
requested the applicant to explain whether he had appealed to the
Court of Appeal against the refusal of an adjournment. On 16 January
1990, the applicant's representative replied that it appeared that he
had not exhausted domestic remedies and suggested that the case be
withdrawn pending exhaustion.
On 12 March 1990, the Commission decided to adjourn the
examination of the case.
By letter dated 4 October 1990, the applicant's representative
informed the Commission, that since the applicant's solicitor had
failed to exhaust the available domestic remedies, she wished to
withdraw the application.
REASONS FOR THE DECISION
The Commission notes that the applicant's representative has
informed the Secretariat that the applicant has not exhausted domestic
remedies in respect of his complaints and that she therefore wishes to
withdraw the application. In these circumstances, the Commission
finds that the applicant does not intend to pursue his application
before the Commission within the meaning of Article 30 para. 1 (a) of
the Convention.
It further considers that the respect for Human Rights as
defined in the Convention does not require that the Commission
continues its examination.
It follows that the application shall be struck off the list
of cases pursuant to Article 30 para. 1 of the Convention.
For these reasons, the Commission unanimously
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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