AS TO THE ADMISSIBILITY OF
Application No. 36931/97
by Patricia HERRON
against United Kingdom and Ireland
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1997, the following members being present:
MM M.P. PELLONPÄÄ, Acting President
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 February 1995
by Patricia HERRON against the United Kingdom and Ireland and
registered on 18 July 1997 under file No. 36931/97;
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 an Irish citizen, born in 1951 and currently
resident in Dublin. She is unrepresented.
The facts as submitted by the applicant may be summarised as
follows.
The applicant and TM were married in 1982, separated under Irish
law in 1987 and divorced under English law in 1992. They have one
child, N, a boy, born in 1980. The applicant has lived in Ireland from
1982 onwards. N lived in Ireland from 1982 until he was taken to
England by his father in October 1993. There has been protracted
litigation concerning N with over 80 applications in Ireland alone.
In 1988 the applicant alleges that she discovered that her son
had been sexually abused by TM and his brother between 1983 and 1987.
She claims that TM was a practising homosexual and paedophile. The
applicant alleges that she was informally told by the Irish police that
no prosecution proceedings would be brought against TM, despite a full
disclosure by N, because TM, who had been imprisoned for various
offences prior to their marriage, was a police informer.
The applicant was awarded custody of N on 11 December 1990 by an
Irish High Court Judge who granted TM supervised access. In a note of
judgment it was recorded that the judge found the allegations of sexual
abuse to be "false". However, in a letter from the judge to the
applicant dated 2 February 1994 he wrote:
"I did not think your husband's sexual abuse of your child has
(sic) been proved as a matter of probability. It was unnecessary
for my decision to make a finding on that particular aspect of
the case".
In 1992 the applicant brought a private prosecution against TM
in Ireland but claims that she was denied access to files because of
the police decision not to prosecute TM. The applicant brought judicial
review proceedings to compel the Director of Public Prosecutions in
Ireland either to bring proceedings himself or to disclose
documentation to the applicant for her private prosecution. These
proceedings were heard by the Irish High Court and then the Irish
Supreme Court which found, in delivering its judgment on 19 May 1994,
that there needed to be evidence of mala fides or improper motives on
the part of the Director of Public Prosecutions before his decision
could be challenged by way of judicial review and there was no prima
facie case in this instance for mala fides or improper motives.
The applicant experienced serious difficulties with N's behaviour
which she attributed to his alleged abuse. In 1992 the applicant kept
N from school to supervise an intensive period of therapy to teach him
appropriate social skills. However, N ran away from home and was later
found to have suffered non-accidental injuries. He stated that he had
been beaten by his mother's cohabitee, DO'S. N refused to return home
and a place of safety order was obtained by the Southern Health Board
in June 1992 who contacted TM. The applicant then obtained an order
prohibiting contact between TM and N. In August 1992 N returned to his
mother. She obtained an order preventing TM from taking N out of the
jurisdiction in February 1993. N continued to display behavioural
difficulties. The applicant believed that he required psychological
counselling as an in-patient and described him as having a psychopathic
personality.
N ran away from home on at least 8 occasions between August and
September 1993 and went missing in October 1993. The applicant became
aware that TM was in Cork and informed the police. N appears to have
approached his father for help and was taken to England by TM on
19 October 1993.
The applicant applied under the Hague Convention for N's return.
Initially, the English High Court ordered that N be returned to
Ireland. N then instructed his own solicitors to become a party and his
father attempted to obtain a stay of the proceedings. Neither was
successful. The applicant then instructed a private investigator to
ensure that N remained in local authority care. Upon learning this, N
absconded. The order to return to Ireland was then stayed in the hope
of encouraging N to return to care. This was successful and N was
granted leave to become a party on 29 November 1993.
In the English Court of Appeal N appealed the order for his
return to Ireland and gave evidence, through reports from English and
Irish social workers that he was genuinely frightened of his mother and
her cohabitee, DO'S. He said that he had been physically and
emotionally abused, had contemplated suicide and wished to stay in
England with TM. On 21 December 1993 the court held that N's wishes
were sufficiently strong for the order for return to be over-ruled
pursuant to Article 13 of the Hague Convention. Interim residence was
granted to the applicant's sister and N was made a ward of the English
High Court.
On 7 June 1994 an order was made for TM to have interim care of
his son. No transcript of that judgment has been provided. On
24 June 1994, upon an application by the Official Solicitor, the
English High Court ordered that, in N's best interests, allegations of
sexual abuse before 1988 would not be re-opened during the substantive
hearing determining N's residence. Inter alia, this would protect N,
who was then a party, from hearing all the allegations and would also
reflect the fact that they had not been proved as a matter of
probability in the Irish court. This decision was not appealed.
In the substantive hearing in the English High Court in October
1994 the applicant suggested that N should either be placed in a secure
unit in Ireland or accommodated by the London Borough of Westminster,
until they decided whether or not to take him into care. TM suggested
that N should remain with him. Both parents gave evidence although the
judge did not find either to be very impressive witnesses. The judge
also heard from a consultant child psychiatrist and a social worker,
both of whom recommended that N remain with his father, the
psychiatrist emphasizing the importance of attendance at the Bloomfield
clinic in Guy's hospital. Two reports had also been prepared by doctors
at the Bloomfield clinic. The psychiatrist considered that forcibly
detaining N in an Irish assessment centre would not be beneficial.
While the judge saw the force of the applicant's argument that N should
be returned to Ireland as he was an Irish child who was used to Irish
culture, he also noted the psychiatrist's view that force would have
to be used against N to ensure that he returned to Ireland.
In his judgment delivered on 11 October 1994, the judge
identified N as being a disturbed boy. He considered that N needed
considerable care, including the loving care of a parent, if he was to
overcome his difficulties. The judge noted that the applicant did not
propose to visit N if he were returned to Ireland and detained in a
secure unit unless N asked her to do so. The judge decided that it
would be in his best interests if he remained with TM, placing limited
reliance upon N's wishes. He described the proposal as being the least
disadvantageous for N. The judge also ordered that N should not be
taken to Ireland without the leave of the court. The decision was not
appealed.
N travelled to Ireland on his own in March 1996 leading the
applicant to make a further application in November 1996 the purpose
and contents of which are unexplained. The applicant is of the belief
that there is a conspiracy between the United Kingdom and Ireland to
protect TM from prosecution for sexual offences and that one effect of
the conspiracy has been to allow TM to have care and control of N.
COMPLAINTS
1. The applicant complains under Article 8 of the Convention that
the United Kingdom authorities have been negligent in failing to bring
TM to justice or to protect N from sexual abuse and have also violated
her custody rights.
2 The applicant complains under Article 8 of the Convention that
the Irish authorities have been negligent in failing to protect N from
abduction, sexual abuse and removal from the applicant's custody, have
failed to prosecute TM for alleged sexual abuse and have perverted the
course of justice.
3. The applicant complains under Article 3 of Protocol No. 4 against
the United Kingdom that N has been prevented from returning to Ireland
by the High Court order dated 11 October 1994.
4. The applicant invokes Article 5 of Protocol No. 7 in relation to
the United Kingdom and Ireland, arguing that the English and Irish
authorities have been biased against her in comparison with their
treatment of TM.
THE LAW
1. The applicant invokes Article 8 (Art. 8) against the United
Kingdom and complains that the English authorities have undermined her
rights of custody, been negligent in their duty to bring TM to justice
and protect N from sexual abuse and have perverted the course of
justice in violation of her family rights.
Article 8 (Art. 8) provides as follows:
"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 finds that the decisions of the English courts
revoking the order to return N. to Ireland and awarding care and
control of N to TM disclose an interference with the applicant's right
respect for family life. While the Commission notes that the
applicant's proposals in October 1994 were for N to be placed in secure
accommodation in Ireland where she would visit him, rather than be
returned to her home, the decision of the English High Court in
granting custody to TM may be regarded as interfering with her parental
rights in terms of being able to control the treatment given to her
son.
Once the interference with the applicant's right to family life
is established, the Commission is required to consider whether or not
the interference was justified, by reference to the conditions set out
in Article 8 para. 2 (Art. 8-2) of the Convention: the interference
must be "in accordance with the law", it must be "necessary in a
democratic society" and it must pursue the legitimate aims set out in
Article 8 para. 2 (Art. 8-2) itself (eg. Eur. Court HR, W. v. the
United Kingdom judgment of 8 July 1987, Series A no. 121, para. 60).
The applicant has suggested that there is an international
conspiracy to prevent N from living with her, allegations which are
wholly unfounded. There is no indication that the decision made by the
English High Court 11 October 1994 was not "in accordance with the
law". The judge applied the principles under the wardship jurisdiction,
namely, to have regard to the welfare of the child, to come to the
conclusion that it was in N's best interests to remain a ward of court
with care and control to his father.
The Commission is also of the opinion that the interference had
a legitimate aim under Article 8 para. 2 (Art. 8-2) namely promoting
and protecting the best interests of the child, N and as such, may be
regarded as having been effected for "the protection of health or
morals" or for the "protection of the rights and freedoms of others".
As regards the question of the necessity of the interference the
Commission recalls that the Court's case-law states that necessity
implies that the interference corresponds to a pressing social need and
is proportionate to the legitimate aim pursued (eg. Eur. Court
HR, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130,
para. 67).
In determining the question of whether the interference is
necessary in a democratic society, the Commission acknowledges that the
Contracting State must be allowed a margin of appreciation since in
general, having the benefit of first-hand experience of the case and
the parties, it will be in a better position to evaluate the necessity
of any interference. However, the review which can be carried out by
the Commission is not limited to ascertaining whether a respondent
State exercised its discretion reasonably, carefully and in good faith
but extends to an examination of whether or not the reasons which are
used to justify the interference are "relevant and sufficient" (see eg.
Eur. Court HR, Olsson judgment, op. cit., para. 68).
The Commission observes that the court heard extensive evidence
from the parents, a social worker who had worked with N, a consultant
child psychiatrist and also had before it two other doctors' reports.
Both independent witnesses who gave oral evidence, the social worker
and the psychiatrist, were of the view that a return to Ireland would
be detrimental to N, particularly given that the applicant intended
that N should be detained in a secure unit upon his return to Ireland.
The judge noted N's objections to returning to Ireland and identified
N as being a disturbed boy who needed the loving care of a parent which
he felt was more likely to come from his father. Consequently, the
judge awarded care and control of N to TM. The fact that the judge
described this choice as being the least disadvantageous for N reflects
the difficulty of the decision. The Commission finds that his decision
can be considered to be based on "relevant and sufficient reasons".
The Commission must also consider whether or not the manner in
which the court came to its decision disclosed any evidence of either
procedural or substantive unfairness (eg. Eur. Court HR, W. v. the
United Kingdom judgment, op. cit., paras. 62-64). The applicant has
complained in particular that, in its decision of 24 June 1994, the
High Court excluded evidence regarding the alleged sexual abuse of N
from being considered within the substantive hearing regarding N's
residence. The Commission notes that matters concerning the
admissibility of evidence fall primarily within the appreciation of the
domestic courts (Eur. Court HR, Schenk v. Switzerland judgment of
12 July 1988, Series A no. 140, para. 46). The applicant was
represented in the hearing on 24 June 1994 and was afforded the
opportunity to put forward arguments as to the relevance of abuse
allegations. The Commission recalls however that the court considered
that, in N's best interests, the evidence regarding sexual abuse ought
not to be included noting in particular that, as a party N would have
been aware of all the allegations and moreover, that the Irish High
Court judge had not found the allegations proven as a matter of
probability. It does not find that this decision discloses any
arbitrariness or unfairness.
As regards the complaint that there has been a failure to protect
N from sexual abuse and to bring TM to justice, the Commission notes
that the alleged sexual abuse occurred in Ireland between 1983 and
1987, six years before N went to England. There is no suggestion that
any abuse has occurred since that date.
The Commission accordingly finds that the interference with the
applicant's right to respect for her family life may be regarded as
being necessary in a democratic society for the protection of the
rights of others, namely the applicant's son, N, and therefore complies
with the requirement of Article 8 para. 2 (Art. 8-2). It follows that
this part of the application must be rejected as manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also invokes Article 8 (Art. 8) of the Convention
against Ireland complaining that the Irish authorities have been
negligent in failing to protect N from removal from her custody,
abduction and sexual abuse, have negligently failed to prosecute TM for
alleged sexual abuse and have undermined her custody rights and
perverted the course of justice in the English and Irish courts in
violation of her family rights.
There is no suggestion that the Irish authorities should have
known about the alleged abuse prior to the applicant reporting it in
1988. This complaint is unsubstantiated and, assuming that there were
no domestic remedies to exhaust, would fail under the six month rule
imposed by Article 26 (Art. 26) of the Convention, since the
application was introduced on 1 February 1995. The alleged negligence
in failing to protect N from abduction and removal from her custody has
also not been the subject of any proceedings. Again assuming that there
were no remedies to exhaust, the Commission notes that this complaint
would also fail under the six month rule as N was taken to England in
October 1993.
The allegations that the Irish authorities have perverted the
course of justice appear to stem from the applicant's wholly
unsubstantiated allegations that there is an international conspiracy
to protect paedophiles including TM. The Commission notes that the
English High Court alone has decided N's long term residence. As
regards the applicant's unsuccessful attempt to bring judicial review
proceedings against the Director of Public Prosecutions in Ireland to
obtain an order for mandamus to force him to institute proceedings
against TM, the Commission notes that its case law provides that the
right of access to court does not include a right to have criminal
proceedings instituted against a third party (eg. No. 9777/82,
Dec. 14.7.83, D.R. 34, p. 158).
The Commission finds that this part of the application discloses
no appearance of a violation of the provisions of the Convention and
should be rejected as being manifestly ill-founded as a whole pursuant
to Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant complains under Article 3 of Protocol No. 4 (P4-3)
against the United Kingdom that N has been prevented from returning to
Ireland by the High Court order dated 11 October 1994.
Article 3 of Protocol No. 4 (P4-3) provides that:
"1. No one shall be expelled, by means either of an individual
or of a collective measure, from the territory of the State of
which he is a national.
2. No one shall be deprived of the right to enter the territory
of the State of which he is a national."
Protocol No. 4 has not been ratified by the United Kingdom. It
follows that the Commission is not competent to deal with this part of
the application as it is incompatible pursuant to Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicant invokes Article 5 of Protocol No. 7 (P7-5) against
both the United Kingdom and Ireland.
Article 5 of Protocol No. 7 (P7-5) provides that:
"Spouses shall enjoy equality of rights and responsibilities of
a private law character between them and in their relations with
their children, as to marriage, during marriage and in the event
of its dissolution. This Article shall not prevent States from
taking such measures as are necessary in the interests of the
children."
Protocol No. 7 has not been ratified by the United Kingdom nor
Ireland. These complaints must therefore also be rejected as
incompatible pursuant to Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy