Information Note on the Court’s case-law No.
February 1995
McMichael v. the United Kingdom - 16424/90
Judgment 24.2.1995
Article 6
Civil proceedings
Article 6-1
Fair hearing
Adversarial trial
Procedures in Scotland for dealing with children needing compulsory measures of care: violation
Article 14
Discrimination
Parental rights in relation to children born out of wedlock
violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.SCOPE OF ISSUES BEFORE THE COURT AND ADMISSIBILITY OF EVIDENCE
1.Certain grievances under Article 8 of Convention - declared inadmissible by Commission.
Conclusion: no jurisdiction to entertain complaints (unanimously).
2.Further complaint not dealt with in Commission's report or admissibility decision.
Conclusion: not necessary to rule whether jurisdiction to entertain complaint (unanimously).
3."New" material included in Government's memorial - took form either of further particulars as to facts underlying complaints declared admissible by Commission or of legal argument relating to those facts.
Conclusion: Court not precluded from taking cognisance of material.
II.ARTICLE 6 § 1 OF THE CONVENTION
Allegation of violation by reason of both applicants' inability to see certain documents submitted in care proceedings concerning their child.
A.Applicability
1. Second applicant
Issue not contested.
2. First applicant
Child born out of wedlock - first applicant had not sought to obtain legal recognition of his status as a (natural) father - as a consequence, first applicant was not a party along with the mother (second applicant) in care proceedings concerning their child - those proceedings did not involve determination of any of his "civil rights" under Scots law in respect of the child.
Conclusion: Article 6 § 1 not applicable in respect of first applicant (unanimously).
B.Compliance
Government conceded absence of "fair trial" in specified instances.
1."Tribunal"
Children's hearing: whether could be regarded as a "tribunal" -not necessary to decide.
Sheriff Court: conditions of Article 6 § 1 as regards composition and jurisdiction of court satisfied.
2."Fair hearing"
Children's hearing: in this sensitive domain of family law, may be good reasons for opting for an adjudicatory body that does not have the composition or procedures of a court of law of classic kind - but fair (adversarial) trial means opportunity to have knowledge of and comment on observations filed or evidence adduced by other party - in present case, lack of disclosure to second applicant of such vital documents as social reports - capable of affecting her ability not only to influence outcome of children's hearing but also to assess prospects of making appeal to Sheriff Court.
Sheriff Court: documents lodged with court not made available to appellant parent - requirement of adversarial trial not fulfilled.
Conclusion: violation in respect of second applicant (unanimously).
III.ARTICLE 8 OF THE CONVENTION
Allegation of violation by reason of non-disclosure to both applicants of documents submitted in care proceedings.
A.Applicability, "interference"
Applicability of Article 8 and existence of an "interference", within meaning of paragraph 2, with exercise of right to enjoyment of "family life" - not disputed.
B.Justification of "interference"
1.General principle: whilst Article 8 contains no explicit procedural requirements, decision-making process leading to measures of "interference" must be fair and afford due respect to interests safeguarded by the Article.
2.Difference in legal circumstances of applicants: first applicant not associated as a party in care proceedings, as he could have been - however, the two applicants acted very much in concert in endeavour to recover custody of and have access to child - they were living together and leading a joint "family life" - no material distinction to be drawn between them as regards "interference" resulting from care proceedings.
3.Necessity of examination under Article 8: difference in nature of rights protected by Articles 6 § 1 and 8 - in present case, despite the Court's finding of violation under Article 6 § 1, examination of same set of facts also under Article 8 was justified.
4.Compliance: unfair character of care proceedings - conceded by Government - decision-making process determining custody and access arrangements in regard to child did not therefore afford adequate protection of applicants' interests.
Conclusion: violation in respect of both first applicant (six votes to three) and second applicant (unanimously).
IV.ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 6 § 1 AND/OR ARTICLE 8
1.Allegation of violation by reason of first applicant's lack of legal right, as natural father, to custody of child or to participate in care proceedings.
2.Difference of treatment is discriminatory if it has no reasonable and objective justification - that is, if it does not pursue legitimate aim or if there is no reasonable relationship of proportionality between means employed and aim sought to be realised.
3.Complaint essentially directed against first applicant's status as a natural father under Scots law - aim of relevant legislation was legitimate - conditions imposed on natural fathers for obtaining recognition of parental role respected principle of proportionality.
Conclusion: no violation (unanimously).
V.ARTICLE 50 OF THE CONVENTION
A.Damage
Claim for compensation for distress, sorrow and injury to health.
Impossible to affirm with certainty that no practical benefit could have accrued if procedural deficiency in care proceedings had not existed - some, although not major part, of evident trauma, anxiety and feeling of injustice experienced by both applicants in connection with care proceedings to be attributed to inability to see confidential documents in question — compensation assessed on equitable basis.
Conclusion: respondent State to pay applicants jointly specified sum for non-pecuniary damage (unanimously).
B.Other relief
Request for a number of declarations and consequential orders - Court not empowered under Convention to give relief sought.
Conclusion: claim rejected (unanimously).
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This summary by the Registry does not bind the Court.
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