Information Note on the Court’s case-law 22
September 2000
Glaser v. the United Kingdom - 32346/96
Judgment 19.9.2000 [Section III]
Article 8
Article 8-1
Respect for family life
Enforcement of access to children: no violation
Facts: Following the applicant’s separation, he had difficulty in obtaining access to his three children, due to his wife’s opposition. They were subsequently divorced and in June 1993 a contact order was made. However, it was not complied with and the ex-wife and children then moved to Scotland, where they could not be traced. In October 1993 the High Court made the children wards of court. The court subsequently obtained the children’s address, which it disclosed to the Official Solicitor (acting for the children) but not to the applicant. In June 1994 the High Court forwarded the contact order of June 1993 to the Court of Session in Scotland, which had power to enforce it. The applicant’s ex-wife continued to oppose any access to the children. In September 1994 a report was submitted at the request of the Court of Session, concluding that it would not be in the children’s interests for the contact order to be enforced. The applicant brought further proceedings in the High Court in an attempt to secure access and in June 1995 a contact order was made in amended terms. In 1996 his ex-wife brought proceedings seeking an order that there should be no contact and the 1995 order was rescinded on joint application (since the Scottish court had no jurisdiction to vary the contact order). In May 1997 an order was made by consent that the applicant should have contact as agreed with his ex-wife and consented to by the children. He has subsequently had indirect contact through third parties on a few occasions.
Law: Article 8 – The positive obligation on national authorities to take measures to facilitate contact between a non-custodial parent and children after divorce is not absolute and any obligation to apply coercion must be limited, since the interests of all concerned must be taken into account and in particular the best interests of the child. The key consideration is whether the authorities have taken all necessary steps to facilitate contact as can be reasonably demanded by the special circumstances of each case. The danger of procedural delay resulting in de facto determination of the issue and protection of the parent’s interests in the decision-making process are other important factors. The principal obstacles to the applicant having access was his ex-wife’s opposition, despite the order granting him specified rights. In these circumstances, the question is whether there was an accessible and coherent mechanism for the enforcement of his rights. In that respect, both the English and Scottish courts had a range of measures available and there was no fundamental defect in the structure for enforcing the applicant’s rights in another part of the United Kingdom. Indeed, the registration of the contact order by the Court of Session within a matter of days demonstrates that the procedure is simple and effective. The decision-making process must inevitably involve a balancing of the respective interests, since coercive measures may in themselves present a risk of damage to the children concerned. Furthermore, with regard to the applicant’s argument that the initiative in pursuing enforcement should lie with the domestic courts, it is the widespread practice in Council of Europe States for plaintiffs in civil proceedings to bear substantial responsibility for their conduct and direction, and indeed Article 8 requires parental participation in proceedings concerning children. However, the authorities are also responsible for the speed with which they act and compliance with the Convention. As far as the initial proceedings in England are concerned, the Court was not persuaded that the High Court had acted improperly or inappropriately in not taking coercive action or that there had been any failure by the authorities to protect the applicant’s interests by leaving it to him to apply for orders to locate his ex-wife; the relatively short lapse of time in passing the exact address to the applicant, due to his ex-wife’s opposition, does not disclose a lack of respect for his rights. As to the applications to the Court of Session for enforcement, it was not unreasonable for the court to order a report on the children, since a year had passed since the original contact order, and it is not evident that the court was intending to redecide issues already adjudicated upon in England. The time taken to prepare the report does not disclose a lack of necessary expedition and the applicant’s petition was granted despite the conclusions of the report. Responsibility for the fact that it had to be rescinded cannot be laid entirely on the Scottish court, which issued its order in the terms requested by the applicant. Moreover, the applicant could have applied for an order in identical terms to the English one. The High Court subsequently gave relevant and sufficient reasons for transferring jurisdiction to the Court of Session, namely efficiency and speed, and in the circumstances the applicant cannot complain of either the contact order made by the latter court or the time it took. Overall, while the applicant faced significant difficulties, these flowed from the unilateral actions of his ex-wife and the authorities did not fail in taking the reasonable steps available to them in locating the family or dealing with the applicant’s requests for enforcement, nor was there a lack of expedition on their part. More coercive steps could not reasonably have been taken and in the very difficult situation the authorities struck a fair balance.
Conclusion: no violation (unanimously).
Article 6 § 1 (length of proceedings) – The total period involved was 3 years, 11 months and 13 days. The case presented considerable complexity and the courts examined the applicant’s applications with reasonable expedition. In addition, the applicant’s own conduct contributed to a degree to the length of the proceedings. In the circumstances, the overall length did not exceed a reasonable time.
(access to court, fair hearing) – As to the applicant’s complaint about lack of legal aid, there is no right under the Convention to receive legal aid in civil proceedings and, while denial of legal aid may deprive a person of effective access to court, the applicant was in fact represented during a substantial part of the proceedings and the cost of obtaining representation is not by itself a relevant factor under Article 6(1). Moreover, it does not appear that when the applicant was without representation he was unable to put his claims forward effectively. As to his complaint of unfair conduct on the part of a particular judge, the proceedings at issue in fact resulted in the applicant obtaining extended contact rights and the alleged interventions by the judge, who had power to cut short irrelevant or over-lengthy submissions, cannot be regarded as rendering the proceedings unfair.
Conclusion: no violation (unanimously).
Article 9 – The applicant’s complaints under this provision are unsubstantiated and there is no basis for finding that the courts took any step which infringed his freedom of religion or showed any lack of respect for his rights in that regard.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy