AS TO THE ADMISSIBILITY
Application No. 12523/86
by David GRIBLER
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 May 1987, the following members being present:
MM. J.A. FROWEIN, Acting President
G. SPERDUTI
M.A. TRIANTAFYLLIDES
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. J. RAYMOND, Deputy 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 19 August 1986
by David GRIBLER against the United Kingdom and registered on
4 November 1986 under file No. 12523/86;
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 facts as they have been submitted by the applicant, a
British citizen, born in 1935 and of no fixed abode, may be
summarised as follows:
The applicant married in April 1973 and from that marriage had
one child, a daughter, born on 23 August 1974. By July 1977 the
marriage had broken down and the applicant issued wardship proceedings
in the High Court contesting the mother's ability to provide a proper
home and making allegations that the mother was an alcoholic. During
the course of these proceedings, the mother received legal aid from the
Law Society, whilst the applicant did not. The hearing came to an end
prematurely, by consent, partly due to the applicant's inability to
proceed any further due to the expense involved. An order was made by
the judge for care and control of the child to be given to the mother
and for the social services department of the area in which the mother
was living to supervise this. Provision was made in the order for the
applicant to have access to the child.
In December 1977 the marriage was dissolved, a decree nisi
was granted and later the decree was made absolute.
In June 1978 there was an attempted reconciliation between the
applicant and the mother, and the High Court made an order allowing
them to take the child out of England and Wales to Spain on holiday.
This holiday proved successful and, on returning to England, the
applicant and the mother agreed to attempt to start a new life in the
United States of America. They left England to settle in the USA
indefinitely, taking the child with them. They did not notify the
social services of their plans and they did not seek the leave of the
High Court although they were aware that failure to do this would be
in breach of the High Court order since the child was still a ward of
court.
The social services, in December 1979, restored the matter
before the judge who made an order to suspend the supervision order
and made an order requiring that the applicant and the mother attend
before the court within fourteen days of their return to the
jurisdiction.
The reconciliation did not work out and the applicant contends
that this was due to the drinking problem of the mother. The mother
and child returned to England and in February 1980, after living in
several places, moved to London to live with a relative and a friend
of the relative, Mr. X, and his children. During this period the
applicant returned to England and became very anxious for the child's
safety. He was concerned about the mother's excessive drinking and
also the relationship which had developed between her and Mr. X. The
applicant believed him to be both violent and dangerous, and after
receiving some inside information from the police about Mr. X, the
applicant was fearful that the child was at serious risk and therefore
took her back to America with him on 10 May 1980. The applicant was
aware that this was in breach of the High Court order, but feared that
if he expressed his concerns to the High Court, it might put the child
into care.
On 13 May 1980 the mother and the social services department
of the County Council obtained from the High Court an order requiring
the child to be handed over by the applicant. The applicant was aware
of the order but did not comply with it. Whilst the applicant was in
the United States, he corresponded with his solicitors, explaining why
he had taken the child back with him to America. He also corresponded
with the mother and offered to pay for her outward journey to visit
him and the child; she did not accept this offer. The applicant
states that he was prepard to return the child to the mother if she
was prepared to accept treatment for her drinking problem.
By September 1981 the relationship between the mother
and Mr. X came to an end after she had been seriously assaulted by him.
During the course of September 1981, sixteen months after the child
had been taken to the United States, the mother travelled out there
and had a meeting with the applicant. The parties could not agree on
what action to take and they instituted separate proceedings against
one another in the American courts. Agreement was however quickly
reached and was embodied in an order of a Californian Court. The
terms were, inter alia, that the mother was to return to England with
the child and to immediately report to the High Court in England,
informing it of the return of the child to the court's jurisdiction.
In addition, the applicant was to be informed of the child's
whereabouts and be allowed to visit and communicate with the child
according to the orders made by the High Court.
On the mother's return to England, she took no immediate steps
to notify the High Court or the local authority of her and the child's
return to the country and she did not notify the applicant of her and
the child's whereabouts. The applicant then returned to England and
notified the High Court in November 1981 of the mother's return with
the child to the country and began a search for them.
The mother applied ex parte to the High Court for an order
that the applicant should not remove the child from her care and
control. The order was granted on 12 November 1981 and it provided
that the applicant should not have access to the child except on seven
days' notice. The applicant states that he received no notice of this
order until 5 December 1981 when he went round to where the mother and
child were living and was denied access to the child.
The mother applied to the High Court for committal of the
applicant for a breach of the High Court order in that he had taken
the child out of the care and control of the mother and out of the
jurisdiction of the High Court on 10 May 1980. The application was
heard and judgment was delivered on 18 January 1982 ordering a two
month committal suspended on the condition that the applicant pay
£750 compensation to the mother in part discharge of her expenses in
tracing the child in the USA. Directions were also given for the
application by the applicant for access to the child and these
directions included the submission of a report by the welfare officer
and also a report by the supervising authority.
In May 1982 the applicant was granted, by the High Court, a
defined period of one hour's visiting access which was to be
supervised by the social worker involved with the case.
The welfare officer's report was made on 14 July 1982. The
welfare officer reported that in January 1982 the mother
went through a form of "marriage" with a man, Mr. Y, she had been
living with since March 1981. Mr. Y at that time was still married
and the "marriage" was bigamous. Separate to this, the mother of the
child had received suspended sentences of imprisonment in May 1982
after pleading guilty to certain matters of dishonesty. There were
also various other criminal proceedings pending in connection with a
business venture, and the welfare officer reported that it was hoped
the outcome of these would not result in the mother's imprisonment.
Despite the difficult position, the welfare officer felt that
the mother was caring for the child in an "efficient and capable
manner" and additionally the applicant himself was not adverse to
allowing the mother to retain custody of the child. The welfare
officer recommended that the applicant be allowed limited access and
that the social worker involved should keep himself appraised of how
matters progressed and report back to the court. The child, at this
stage almost eight years old, was happy with these arrangements but
asked that an elder sibling accompany her on any access visits.
In July 1982 the High Court ordered visiting access for the
applicant every three weeks and there then followed a period in which
access proceeded according to the court order. The applicant made
application to the court for visiting access for the child to visit
his home, but this was turned down following a report by the court
welfare officer, made on 17 October 1983. This report concluded that
"until access is a happy event on every occasion for (the child) she
will not learn to trust and respect her father and feel secure enough
to say yes to visiting access".
In June 1984 the High Court ordered supervised access by the
court welfare officer. The applicant states that on one supervised
visit, on the court welfare officer's suggestion, the applicant took
his child swimming. The applicant alleges that on this occasion
the court welfare officer molested the child in the swimming pool.
The applicant states that he did not intervene or make a complaint at
the time as he was worried about the effect the complaint would have
on the court welfare officer's report for the court hearing scheduled
for July 1984. At that hearing the applicant complained to the judge
who recommended he refer the matter to the appropriate authorities.
The applicant wrote to the Inner London Probation Committee, lodging a
formal complaint, who, after receiving a denial of the alleged
molestation from the court welfare officer concerned, informed the
applicant that they would be taking no further action and advised him
that if he wished to proceed with the matter he should refer the
allegation to the police. The police, on the ground that no evidence
had been provided to substantiate the allegation, took no action on
the matter.
From the welfare reports it was clear that not all was well
with the access arrangements although they were proceeding. In July
1984 the child made it clear to the court welfare officer that she was
prepared to continue to see the applicant and go out with him only on
the clear understanding that she was giving him his last chance and
that if he upset her again she would refuse to see him.
In December 1984 the applicant married his present wife whom
he had known for over twenty years.
In March 1985 the matter of access was again referred back to
the High Court. The child was said to be upset by the access visits
and refused to see the applicant. The social worker reported that the
child "is adamant that she does not want to see her father again, and
I could not get her even to consider access which would be entirely on
her own terms. She did, however, accept that her view may change with
time. I think (the applicant) will have a lot to do, and from a
distance, before he will be able to re-establish any kind of rapport
with his daughter."
It was on this evidence that the judge on 25 March 1985
discharged the access order, and the applicant has not seen the child
since that date.
On 23 March 1986 the mother and Mr. Y were convicted of
obtaining money by deceit, and the mother was sentenced to a term of
imprisonment of three months which expired on 23 May 1986.
Following the mother's imprisonment in March 1986, the
applicant, acting in person, applied to the High Court for care and
control of the child to be given to him. The applicant based his
contention on his and his present wife's ability to provide the
necessary continuity for the child. He stated that they lived
principally in a motor home in which they travelled extensively, both
in the United Kingdom and abroad, but had two houses in which a
permanent base could be provided for the child in England. The
applicant was further prepared to guarantee the child's fees and
future at the boarding school which she was then attending, the fees
previously having been paid by the local authority. The applicant
contended that the mother could not provide the necessary stability
for the child due to her over-dependence upon alcohol and her various
clashes with the law.
Judgment was delivered by the High Court on 1 May 1986. The
judge had some sympathy for the applicant's application and found him
to be undoubtedly a devoted father. The judge, however, concluded
that "at the end of the day, despite the difficulties that the mother
has had, this child has still got a stable background. It is quite
clear that she and her mother are very close indeed ... as I have
said, despite the difficulties that the mother has had to contend with
(the child) is a stable, attractive girl of whom everybody, including
her present headmistress, is very fond indeed." The judge rejected
the applicant's application and on the question of renewed access did
not rule out the possibility of this in the future. The judge ordered
in particular:
1. that the applicant's summons be dismissed;
2. that the child remain in the care and control of the mother;
3. that the child remain under the supervision of the Cambridge
County Council;
4. that the applicant be restrained from approaching within a
quarter of a mile of the school or home of the child and
not communicate with the school;
5. that the social worker concerned report at six monthly
intervals upon the possibility of access between the applicant
and the child being restored; and
6. that the applicant bring no further application with regard
to the child without the leave of the court.
The applicant appealed against the decision of the High Court
to the Court of Appeal, but the appeal was rejected on 24 July 1986
and leave to appeal to the House of Lords was not granted.
In the High Court proceedings and the Court of Appeal
proceedings, the applicant was not legally aided, whilst the
mother received legal aid and legal representation.
COMPLAINTS
The applicant complains that he was denied a fair hearing as
guaranteed by Article 6 of the Convention in the determination of his
civil rights in relation to his applications for care and control and
access to the child. He states that he was not given the opportunity
of cross-examining the court welfare officer in the hearing at the
High Court on 1 May 1986 on matters relating to the court welfare
officer's alleged molestation of the child. He also complains of
having been ordered by the High Court judge not to bring any further
application with regard to the child without the leave of the court.
The applicant also contends that the grant of legal aid to the
mother and his non-eligibility for legal aid prejudiced a fair
hearing in relation to his applications.
The applicant further claims to be a victim of Article 3 of
the Convention referring to the alleged mal-administration of the
courts and their officers in allowing the court welfare officer to
continue to supervise and make reports on the child after the
applicant's allegations of sexual impropriety. The applicant contends
that contact with the court welfare officer subjected the applicant to
inhuman or degrading treatment.
The applicant further invokes Articles 8, 10, 11, 13 and 14 of
the Convention in consequence of the order of the judge on 1 May 1986.
He claims the order denying care and control or access to the child
was an infringement of his right to respect for private and family
life, freedom of expression and freedom of association. The applicant
contends that he has been discriminated against in these proceedings
and that there is no effective remedy under English law for breaches
of any of the Articles he has raised.
The applicant appeals to the Commission to rectify these
matters by returning the child to him and awarding compensation to the
child and to him.
THE LAW
1. The applicant first complains that he was denied a fair hearing in
the proceedings relating to his applications for care and control and
access to his daughter, contrary to Article 6 (Art. 6) of the
Convention, which provides as far as material:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
The applicant contends in particular that his right to a fair
hearing was prejudiced in that he was not given the opportunity to
cross-examine the court welfare officer in the hearing on 1 May 1986
on matters relating to the court officer's alleged molestation of the
child. He also complains of having been ordered by the High Court
judge not to bring any further application with regard to the child
without the leave of the court.
The Commission considers that there is nothing to show
that the applicant was hindered from cross-examining the court welfare
officer on matters pertinent to the hearing. As regards the order not
to bring new applications regarding the applicant's daughter, the
Commission notes that the applicant was not thereby excluded from
access to a court, since the judge expressly indicated that he could
ask for leave of the court in order to bring such applications.
It follows that this aspect of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains of his non-eligibility for legal
aid. The Commission observes that no right to free legal aid in civil
proceedings is, as such, included among the rights and freedoms
guaranteed by the Convention, although denial of legal aid could in
certain circumstances amount to a failure to ensure a fair hearing
under Article 6 para. 1 (Art. 6-1) of the Convention (cf. No.
6958/75, Dec. 10.12.75, D.R. 3 p. 155). Furthermore, the Commission
has also held that the operation of financial qualifications for legal
aid, and a restriction on its availability to cases with objective,
fair, prospects of success is a reasonable application of limited
public funds for the purpose of ensuring a fair hearing (cf. No.
8158/78, Dec. 10.7.80, D.R. 21 p. 95). There is no indication that
the applicant was refused legal aid on any other ground. Nor is there
any indication that the absence of legal aid adversely reflected on
the fairness of the court proceedings concerned.
It follows that this part of the applicant's complaint is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also complains that his necessary contact with
the court welfare officer, after he had allegedly molested the child,
amounted to inhuman or degrading treatment which the court and its
officers should have prevented. The Commission does not however
consider that the treatment of which the applicant complains attains
the degree of seriousness which would bring it within the sphere of
application of Article 3 (Art. 3) of the Convention according to the
consistent case-law of the Commission and the European Court of Human
Rights. 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.
4. The applicant also complains that his right to respect for
private and family life has been infringed by the court not awarding
him care and control or access to the child.
Article 8 (Art. 8) provides:
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
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 recognises that according to its established
case-law the right to respect for family life also extends to the
right of a parent to have access to or contact with his child on the
understanding that the State may not interfere with the exercise of
that right otherwise than in accordance with the strict conditions set
out in paragraph 2 of the Article (Art. 8-2) (cf. No. 911/60, Dec.
10.4.61, Collection 7 p. 7; No. 7911/77 Dec. 12.12.77, D.R. 12 p. 192;
and No. 6427/78, Dec. 13.3.80, D.R. 18 p. 225).
When deciding the question of care and control and access to
children following the breakdown of a marriage, domestic courts may properly
take into account under paragraph 2 of Article 8 (Art. 8-2) the welfare of the
child and the child's own wishes. Where a domestic court has refused to a
parent a right of care and control or access to his or her child, the
Commission nevertheless ultimately has a task to judge whether such refusal is
justified under the provisions of paragraph (2) of Article 8 (Art. 8-2).
In the present case the applicant had, prior to the application
heard on 1 May 1986, consented to the mother having care and control of
the child. The High Court had up to that point accepted his right
to limited access. The High Court on 1 May 1986 refused the applicant
care and control of the child and also refused him access to the
child, at least for the immediate future. In so doing, the Court
based its decision on not only the events of the past and the various
reports submitted from time to time, but also on the wishes of the
child.
There was evidence before the High Court and the Court of
Appeal on the question as to how the child's best interest could be
served and whether to grant the applicant care and control or a
right of access to the child would be in the child's best interests.
In these circumstances the Commission, having regard to the
facts as submitted by the applicant, finds that there is nothing to
show that the courts acted otherwise than in the best interests of the
child in refusing the applicant care and control and access. Hence,
the measures taken in the case were in accordance with the law and
necessary in a democratic society for the protection of the health of
the child under Article 8 para. 2 (Art. 8-2) of the Convention,
It follows that this aspect of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The applicant further complains that there have been
violations of his rights under Article 10 (Art. 10) - the right to
freedom of expression, Article 11 (Art. 11) - the right to freedom of
association, and Article 14 (Art. 14) - the freedom from
discrimination.
The Commission has also examined these complaints as they have
been submitted by the applicant. However, these complaints are wholly
unsubstantiated and it follows that this part of the application is
also manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
6. The applicant further complains that he has been denied any
effective remedy before a national authority in respect of his
complaints, contrary to Article 13 (Art. 13) of the Convention.
In so far as this complaint relates to fairness of court
proceedings under Article 6 (Art. 6) of the Convention and to respect
for family life under Article 8 (Art. 8) of the Convention, the
Commission recalls its constant case-law that Article 6 (Art. 6) of
the Convention provides a more rigorous procedural guarantee than
Article 13 (Art. 13) and therefore operates as a lex specialis with
regard to a civil right to the exclusion of the more general
provisions of Article 13 (Art. 13) of the Convention. The Commission
also refers to its above findings under Article 6 (Art. 6).
It therefore follows that no separate issue arises in respect
of these complaints under Article 13 (Art. 13) of the Convention.
In respect of the applicant's remaining complaints under
Article 13 (Art. 13) of the Convention, the Commission observes that this
provision is only applicable when an applicant has an arguable claim
that there has been a breach of other rights and freedoms contained in
the Convention (cf. Eur. Court H.R., judgment of Silver and others
of 25 March 1983, Series A no. 61).
The Commission has already considered that the applicant's
substantive complaints under the Convention do not disclose any
appearance of a violation of any of the other provisions of the
Convention. Furthermore the applicant has not made out a clear
complaint of how he considers Article 13 (Art. 13) to be at issue in
respect of his remaining complaints.
The Commission therefore considers that the applicant has not
been shown to have an arguable claim under Article 13 (Art. 13) of the
Convention.
It follows that this aspect of the applicant's complaint is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (J.A. FROWEIN)