THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32346/96
by Maric GLASER
against the United Kingdom
The European Court of Human Rights (Third Section) sitting on 7 September 1999 as a Chamber composed of
MrJ.-P. Costa, President,
SirNicolas Bratza,
MrL. Loucaides,
MrP. Kūris,
MrW. Fuhrmann,
MrK. Jungwiert,
MrK. Traja, Judges,
withMrsS. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 November 1993 by Maric Glaser against the United Kingdom and registered on 22 July 1996 under file no. 32346/96;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 2 December 1997 and the observations in reply submitted by the applicant on 2 February 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1946 and resident in New Malden. The facts, as submitted by the parties, may be summarised as follows.
A.Particular circumstances of the case
The applicant was born in 1946 in India and lived for a period in South Africa, where he married in January 1979 and had three children: PM. born in 1982, A. born in 1984 and F. born in 1985. The family moved to England in 1986 but, following marital difficulties, the applicant’s wife left the family home with the children in September 1991. She agreed to return in November when the applicant agreed to move out. Divorce proceedings were instituted on 24 October 1991 and the divorce became final on 10 June 1993.
Contact between the applicant and his children was arranged by agreement with the mother present between November 1991 and March 1992. However, in March 1992, contact was stopped by the mother who claimed that the children no longer wanted to see their father. In April 1992, the applicant’s former wife made allegations that the applicant had sexually abused the children, but these allegations were not substantiated in investigations carried out by the Child Protection Unit in June 1992. In May 1992, an application by the applicant for a residence (custody) order was refused.
On 2 September 1992, an interim contact order was made by the Kingston-Upon-Thames County Court providing for weekly supervised access. This contact never took place.
On 6 November 1992, the same County Court made a further interim order for supervised access, with Christmas access to be by arrangement. Two periods of supervised access took place on 21 November and 12 December 1992. The Christmas access did not take place as the mother took the children to Wales. The County Court made a further interim order for supervised access on 12 January 1993. This order was, in the main, complied with and a further order was made by the County Court on 16 March 1993 for weekly contact to take place in the presence of a mutual friend or in a public place. In a Welfare Report before the Court at that time, the Court Welfare Officer concluded that a break in contact would be unhelpful in counteracting the children’s negative views of their father and it was also noted that, if no contact order was made, then contact was unlikely to occur, despite the children’s wishes. A psychiatric report dated 12 March 1993 suggested that there should be an increase in contact, unsupervised, and that there was no reason why overnight stays with the father could not be permitted. The report noted that the applicant had acknowledged hitting the children with a belt in the past, had provided a reason for it (his illness) and had apologised to the children for it. The applicant states that he represented himself in the hearings leading up to the June 1993 order.
On 15 June 1993, a contact order was made by the County Court including weekly access, overnight stays and making provision for Summer and Christmas holidays. This contact order has never been complied with. In July 1993, the applicant’s former wife left the family home with the children and moved, it subsequently transpired, to Scotland. On 25 July 1993, the applicant brought to the attention of the County Court that the order of 15 June had not been complied with. At the hearing of his application on 2 August 1993, the applicant appeared in person and his former wife was represented by Counsel. The applicant states that the County Court judge said that he had power to make an order requiring the mother to be brought before the Court, but suggested instead that the matter should be dealt with by the High Court (Family Division) because of its greater powers. Therefore on the same day the applicant applied to the High Court ex parte. The applicant has not provided a copy of this application, but states that he effectively asked the judge to take such action as was necessary to enforce the order for contact, and that he did not make a specific application because he was following the suggestion of the County Court judge and did not know what to do. The applicant appeared in person. Mr. Justice Singer invited the Official Solicitor to act as guardian ad litem for the children and, if accepted, granted leave to the Official Solicitor to submit documents in the case to such experts as he chose, and for those experts to carry out such examinations and investigations concerning the children as they thought appropriate. The applicant states that the judge had a recent order for contact before him and knew that his former wife was in contempt. He would also have known, the applicant states, that time was of the essence and presumably invited the Official Solicitor to act expecting action to follow. The Government does not state what other options would have been open to the Judge at this stage. The Official Solicitor accepted the invitation to act on 3 September 1993. The applicant thought the order would lead to something being done.
Meanwhile, it appears that the applicant hired a private detective who traced the children to Edinburgh in August 1993, but the mother moved them again to an unknown address.
The applicant applied ex-parte to make the children wards of court and was represented at this stage by counsel. On 1 October 1993, the High Court, made an injunction prohibiting the children’s mother from removing them from the jurisdiction without leave of the court and making the three children wards of court. At this time it appears that the Tipstaff was appointed to locate the children. (The Tipstaff is a court official who executes orders of the Court.) A copy of the latter instruction has not been supplied. The Government state that the order was made in the terms of the application. The applicant says that he had applied for a “seek and find” order but that, at the court, the Tipstaff representative asked that the application be changed to a “seek and locate” order. The applicant states that his legal representatives and himself expected the Tipstaff would do more than he did in order to locate the children. The Government state that the Tipstaff acts on information given to him by the parties in the case. As little progress had been made, the applicant, who was still receiving advice from solicitors, made a further application ex parte to the High Court.
On 17 December 1993, the High Court ordered the Department of Social Security (including the Child Support Agency), Kingston and Richmond Health Services, National Health Service Records and the Open University to divulge to the court any information which it had on the location of the children. On 25 January 1994, presumably on the applicant’s application, leave was given by the High Court to disclose the address of the applicant’s former wife (as disclosed by the Child Support Agency) to the applicant’s solicitor on an undertaking that the solicitor would not disclose the same to the applicant. The applicant says this never happened, as his former wife and the children had changed address again. The Government disagree, saying that the address was supplied but that the applicant’s enquiry agents were unable to locate the children who had been moved again. The applicant states that, as he was prevented from establishing that his children were in Scotland, he was also prevented from registering the order in Scotland at this stage. The applicant contends that it would have been clear to the High Court in January that any enforcement proceedings would have to be in Scotland.
As the applicant felt that he was not making any progress, he applied to the High Court again, this time in person. On 21 February 1994 the High Court again ordered the relevant authorities to disclose any information which they had as to the current address or whereabouts of the children. The High Court also ordered that any address or information would not be disclosed to the applicant without leave of the court, but that the court would notify him as soon as possible after receipt of relevant information for the purpose of enabling him to seek further directions. The applicant was informed by the court on 24 March 1994 that they had new addresses.
The applicant states that the District Judge refused to disclose the address, so he applied in person ex parte to the High Court. The application was adjourned on 28 March 1994 pending the Official Solicitor agreeing to act. At the adjourned hearing on 13 April 1994, the applicant again appeared in person. The High Court disclosed the address to the Official Solicitor, the children were joined as defendants to the proceedings and the matter was adjourned until 10 May 1994 to allow the Official Solicitor to report on any information which he had on the whereabouts and welfare of the children. On 26 April 1994, the High Court, it would appear of its own motion, ordered the disclosure of the children’s address (received from the National Health Service Central Register) to the Official Solicitor only. On 10 May 1994 the applicant again appeared in person, the applicant was granted indirect contact with the children, by way of letters, cards and presents, to be monitored by the Official Solicitor. Details of the address of the children and the social workers involved in the case were ordered not to be disclosed to the applicant. The matter was adjourned by the High Court for further directions in four weeks.
On 7 June 1994, the High Court disclosed to the applicant, who appeared in person, that his children were resident in Scotland although, despite his request, he was not informed of their address so as not to unsettle his former wife. Also on this date the High Court ordered the Official Solicitor to identify for the applicant the appropriate court in which he should issue proceedings in Scotland in order to enforce the order for contact made on 15 June 1993. The High Court also agreed that, upon receiving notice that the father has issued proceedings, it would forward to the relevant court in Scotland the address of the children and the social worker instructed in the case, it being for that court to decide whether, and if so when, to disclose this information to the applicant.
On 17 June 1994, presumably on the applicant’s application, the contact order of 15 June 1993 was registered in the Court of Session in Scotland. On or about 12/13 July 1994, the applicant then commenced proceedings for the enforcement of the English court order. The applicant says that he was told that he had to have a solicitor in order to commence proceedings, unless he applied to waive this which would have meant further delay. He therefore instructed solicitors. The Government state that an order was made on 13 July 1994 for the service of the proceedings on the mother, and forbidding the mother from removing the children from Scotland, pursuant to the applicant’s request.
On 20 July 1994, the mother filed her answers to the proceedings alleging that it was not in the children’s interests for there to be contact and that the children would be at risk. The mother applied for an order staying the enforcement proceedings pending the commencement by her of proceedings to vary the June 1993 contact order. The applicant states that the allegations made by the mother in her answers had all been adjudicated on already by the English courts.
On 5 August 1994, the applicant lodged a motion asking the Scottish court to make an order enforcing the June 1993 order. This application was heard on 9 August 1994, it was not opposed but was not proceeded with by the applicant. The applicant says that when it became clear that the judge was not going to grant enforcement of the order, as the judge did not consider the order made sense, the applicant’s counsel withdrew the application (without the applicant’s specific instructions) fearing that a refusal of the order would make it difficult for any other judge to disagree.
The applicant states that by this time the English High Court had declined to set down a hearing for the June 1993 order to be amended, on the basis that it was for the Scottish court to enforce it. No documentary evidence is supplied in respect of this.
On 17 August 1994, the applicant lodged another motion asking the Scottish court to make an order enforcing the June order. On 19 August 1994, the matter was heard before a different judge and this time the application was defended. In the light of allegations of sexual abuse (which had been rejected following investigation in England) made by the applicant’s former wife, a new report was ordered to be prepared quam primum by an advocate. The applicant appealed this order but leave to appeal was refused on 1 September 1994. The applicant had to appear in person as his lawyer would not act. An advocate was appointed on 27 September 1994 to carry out enquiries and submit a report. She submitted her report on the enforcement of contact to the court on 31 January 1995.
The advocate’s report recounted the history of the proceedings and her own contact with the children, their mother and the applicant. It concluded:
"This is a complex case. One fact that I think is established is that these children were found by a number of professionals ... in the period 1992 and 1993 to be under stress. What was never established to anyone’s apparent satisfaction was the reason for that. It seems to me from my investigations ... that the stress is likely to have been brought on by their parents’ relationship and the way that impinged on them. I think it is also most probable given the children’s (particularly ... The question is what is the best way forward for them ... . The ... I also accept to some extent what he suggests to the effect that the ... The ... I also accept that some of the evidence I heard and saw appeared to contradict the ... On the one side I accept that the The Following extended discussion and correspondence between the applicant and his legal advisers, on 11 May 1995 the applicant applied, it appears with the assistance of a lawyer, for a hearing of his petition which the court on 16 May 1995 listed for June 1995. On 29 May 1995 the applicant applied for leave to amend the order sought by him, as it appears there was a technical problem with the form of the order sought. An order was made allowing the applicant’s petition to be amended and an order for contact was made in the amended terms by the Court of Session on 22 June 1995. The applicant submits that there is no written judgment available for this decision. The applicant states that on 14 August 1995, an order was made in the Court of Session requiring the applicant’s former wife to comply with the English order. However, this order and contempt proceedings had to be withdrawn because, according to the applicant, the court did not properly translate the English order into the Scottish order, which defect could not be cured save by a fresh application. The Government state that on 5 September 1995 the applicant commenced proceedings seeking to have the mother punished for contempt for failure to comply with the order of 22 June 1995, but that the applicant failed to pursue this. On 25 September 1995, the mother applied for the rescission of the order of 22 June 1995 on the basis that it was incorrect because it was at variance with the order of June 1993. The applicant returned to the High Court in England requesting that the original order of June 1993 be varied. This approach was taken on the basis that the Court of Session could not refuse to enforce a fresh order. However, given the change in circumstances, the applicant decided in December 1995 that the chances of getting any court to enforce the order of 15 June 1993 were remote, and he decided to withdraw the action for enforcement. On 31 October 1995, his former wife applied to the High Court in England for an order removing proceedings to Scotland and, on 7 November 1995, the applicant applied again for a contact and/or residence order. In a judgment handed down on 31 January 1996 the High Court found it appropriate that the decisions as to contact be considered by the Scottish courts. This was with particular regard to the statement by the former wife’s Scottish lawyers that they could issue proceedings within a week in Scotland to determine custody and contact. The children were however to remain wards of court and it would be open to the applicant to apply to lift the stay on proceedings in England if the proceedings in Scotland were not pursued. On 19 July 1996, the order of 22 June 1995 was rescinded by the Scottish court on the joint application of the mother and the applicant. On 16 April 1996, the mother commenced proceedings in the Court of Session in which she sought an order that there should be no contact between the children and the applicant. The applicant sought an order for contact by a defence lodged on 29 April 1996. A hearing was set down in Scotland for November 1996 but was deferred by agreement, following his former wife’s voluntary co-operation in seeing a psychologist, allowing the children to be seen by the psychologist and permitting the applicant to send the children cards and presents. On 27 May 1997 an order was made by consent that the applicant should have contact as agreed between the applicant and his former wife and as consented to by the children. B.Relevant domestic law and practice a)Tracing children The orders that the High Court makes depend on the nature of the application made to the court by a party in the case and on the evidence provided. The court does not determine what order to make independently of this. The types of order that can be made include : i)to direct the Tipstaff to locate the whereabouts of a child; ii) to permit publicity, through the media, about the child and the fact that there is a court order trying to locate the child; iii)to require any one who has relevant information about the child’s whereabouts, to disclose it to the Court; iv)to request the disclosure of addresses from Government departments. The Tipstaff is a court official who executes orders of the Court. He does not fulfil the role of an enquiry agent. It is not his function to set up independent lines of enquiry of his own. The Tipstaff acts on information provided to him by the parties in a case and will be assisted by the police. The Official Solicitor has no independent power to enforce any order. The court can invite him to act for children but cannot require him to do so. When the Official Solicitor is invited to act as guardian ad litem for children in proceedings he does not have any role independent of the proceedings, being there to represent the children in those proceedings. b)Relationship between the jurisdictions of England, Wales and Scotland. In most respects the domestic law of Scotland is the same as that for England and Wales, including the powers of enforcement of a contact order (such as the sanction of imprisonment for contempt of court). The Family Law Act 1986 ("the 1986 Act") confers on the court dealing with the matrimonial affairs the primary jurisdiction over the granting of children orders except where it considers it would be "more appropriate" for matters to be determined in another part of the United Kingdom. Section 25 of the 1986 Act provides for the recognition of children orders made in any part of the United Kingdom. The new court in which the order is registered has the "same powers for the purpose of enforcing the order as it would have if it had itself made the order" (section 29). The decision of how to enforce the order must depend on what "will overall promote the welfare of the child" (Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124). In balancing the competing interests of those involved, the courts retain jurisdiction to refuse an order if satisfied, for example, that enforcement would result in physical or moral injury to the child (Woodcock v. Woodcock 1990 SLT 848 at 853B). COMPLAINTS 1.The applicant complains that by failing to take adequate measures to enforce the contact order of 15 June 1993 there has been a failure to ensure his right to respect for family life under Article 8 of the Convention. In particular the applicant complains of the following: a.the failure of the County Court to enforce its own order of 15 June 1993, thus enabling the applicant’s former wife to remove the children from its jurisdiction, to delay and ultimately prevent remedial action by the English courts and the applicant himself; b.the failure by the High Court to take measures which would have ensured that the applicant’s former wife and children could be traced and timely action taken to remedy the applicant’s lack of contact; c.specific obstruction by the High Court of provision of information to the applicant which would enable him to bring an action for enforcement of the contact order in the court with jurisdiction, i.e. in Scotland. d.failure by the Official Solicitor to take action to enforce contact despite an order requiring such action; and e.failure by the Court of Session to take action to redress a situation which had already pertained too long. 2.The applicant next complains under Article 6 of the Convention that, in the determination of his civil right of contact with his children, there has been a violation of his right to fair hearing within a reasonable time. Also under Article 6 the applicant complains that his inability to obtain legal aid (which is based on disposable income and does not take into consideration accumulating legal fees) meant that his access to court was not effective. The applicant alleges that comments made by the judge in the County Court, including continuous interjection and criticisms when he represented himself, meant that he did not get a fair hearing in the County Court in violation of Article 6. 3.Finally, the applicant complains that in proceedings relating to the children the courts have failed to have regard to his freedom of conscience and religion, causing a breach of Article 9 of the Convention. In particular, he claims that the courts openly criticised his Catholic beliefs on marriage and took the view that his refusal to accept divorce was a factor which contributed to his former wife’s opposition to allow the children to see him. PROCEDURE The application was introduced on 5 November 1993 and registered on 22 July 1996. On 2 July 1997, the European Commission of Human Rights decided to communicate the applicant’s complaint concerning Article 6 (length of proceedings) and Article 8 to the respondent Government and to adjourn the applicant’s complaints as to unfairness (Article 6) and Article 9 of the Convention. The Government’s written observations were submitted on 2 December 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 2 February 1998. On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol. THE LAW The applicant complains under Article 8 of the Convention there has been a failure to respect his right to family life because the English and Scottish courts, or their organs, failed to take adequate measures to enforce the contact order of 15 June 1993. He also invokes Article 6 § 1 of the Convention in respect of the alleged unreasonable delay in those proceedings and Article 9 of the Convention in respect of alleged failure of the courts to respect his religious beliefs. Article 6 § 1, in so far as is relevant, provides: " 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..." Article 8 of the Convention provides: "1.Everyone has the right to respect for his private and 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." Article 9 of the Convention provides: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” The Government submit that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention as he did not appeal against any of the decisions made by the High Court or the Court of Session, save for review of the order of the 19 August 1994. Further the applicant failed to make an appropriate use of domestic remedies when he sought to enforce the June 1993 order in Scotland when he had acknowledged that this was no longer in the interests of the children. In respect of the applicant’s complaints under Article 8 of the Convention, the Government submit that the matters complained of do not amount to an interference with the applicant’s right to respect for his family life and, in any event, the case falls within the wide margin of appreciation afforded to Contracting States in such areas. The courts took reasonable measures but were frustrated by the mother’s actions. In particular, the High Court could not enforce the order of 15 June 1993 until March 1994 as the location of the mother and children was not known, and after that time the children were outside the jurisdiction of England and Wales. Any alleged delay was caused by the mother moving addresses. Further it was reasonable to withhold the mother’s address from the applicant until further enquiries had been conducted by the Official Solicitor. The Government also submit that the Official Solicitor was not in a position to facilitate contact because the children were in Scotland outside the jurisdiction. As regards the steps taken by the Scottish courts, the Government contend that the contact order in this case could not properly be enforced, in view of the time which had elapsed, without enquiries to establish if that would be in the children’s interests. Even assuming that there was any interference by the authorities with the applicant’s right to respect for family life, the decisions taken by the courts pursued the legitimate aim of safeguarding the welfare of the children, were supported by relevant and sufficient reasons and as such were necessary in a democratic society in accordance with Article 8 § 2 of the Convention. As regards the applicant’s complaints under Article 6 § 1 of the Convention, the Government assert that the High Court proceedings did not concern the determination of the applicant’s civil rights and obligations. Without prejudice to this argument, the Government submit in addition that is not possible to take the proceedings before the High Court as a whole. A number of different applications were made, each of which was determined within a reasonable time. In respect of the Scottish courts, the report about the welfare of the children was prepared within a reasonable time. Further, even taking into account the proceedings as whole, there was no unreasonable delay given the complexity of the case and the behaviour of the applicant. The applicant submits that having regard to what was practically possible he exhausted all remedies that were available to him. He was unable to appeal against the Court of Session orders because they were apparently defective. Further, the courts did not have the flexibility to deal with the issues at the earliest possible moment. He applied to the court on numerous occasions and relied on them to make the appropriate orders to protect his rights and for necessary and effective steps to be taken to carry them out by, for example, the Tipstaff and Official Solicitor. As regards the substance of his claims under Article 8 of the Convention, the applicant disagrees that the case falls within the State’s margin of appreciation, arguing that way in which the law was enforced was defective and failed to protect his rights. He states that the Government’s responsibility was to ensure that his rights were protected either by enforcing the order of June 1993 in whole or in part, by enforcing the order of May 1994 or enabling interim measures to be applied until a new determination could be made. He points out that the only court which heard any evidence was the original court in June 1993. He submits in particular that the Tipstaff had insufficient power to trace the mother and that the High Court failed to take steps of its own motion which could have located the mother. The applicant contends that the delay in disclosure of the mother’s address was unjustified and that the Official Solicitor could have acted in Scotland. The applicant further submits that as the English court seemed prepared to enforce the contact order without any change, notwithstanding the delay of a year, the Scottish court should have done likewise. The delay which ensued due to the Scottish courts’ refusal to enforce the English court’s original findings, notwithstanding the terms of the Family Law Act 1986 and their insistence on re-investigating, was inevitably prejudicial to him. The applicant further contends that the enforcement procedures were opaque to a litigant in person. He states that the failure to enforce was against the best interests of the children, an interference with the applicant’s right to family life and that a proper balancing exercise was never effected by the courts. The applicant submits that the courts gave precedence to the mother’s ungrounded fears and vindictiveness rather than the children’s interests. The courts should have managed the case so as not to render his rights worthless. As regards Article 6 of the Convention, the applicant submits that the order of June 1993 embodied his right to see his children and the English courts, through the delays, failed to stop the mother jeopardising this right. In respect of the Scottish courts the applicant submits that the delay following the ordering of the new report was prejudicial and enabled the mother to take active steps to exert negative influences on the children. The applicant states that it is for the Government to ensure that the laws, if different for different parts of the United Kingdom, are not allowed to lead to delays which would not have occurred had there been no division. The applicant claims that his own behaviour was not a factor which had concerned the courts during the proceedings, and that there was no suggestion at any stage that contact would harm the children. The Court notes that the Government invoke Article 35 § 3 of the Convention, arguing that the applicant has failed to exhaust domestic remedies by, inter alia, failing to appeal against various court orders. The Court finds that issues as to the availability of redress or effectiveness of the court procedures arise under the substantive complaints made by the applicant under Articles 6 and 8 of the Convention. It considers therefore that the submissions made by the Government concerning non-exhaustion are closely connected with these aspects and should be joined to the merits of the application. The Court has not invited the parties’ observations on the complaints made by the applicant under Article 9 of the Convention. Since however these are connected to the proceedings which are brought into issue by the applicant’s complaints under Articles 6 and 8 of the Convention, it does not find it appropriate to determine this part of the application separately at this stage. The Court considers, in the light of the parties’ submissions, that the application raises complex issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 35 of the Convention. No other grounds for declaring the application inadmissible have been established. For these reasons, the Court, unanimously, DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. S. DolléJ.-P. Costa RegistrarPresident
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