AS TO THE ADMISSIBILITY OF
Application No. 29779/96
by Peter SMALLWOOD
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
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 13 July 1995 by
Peter SMALLWOOD against the United Kingdom and registered on
10 January 1996 under file No. 29779/96;
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 a British citizen born in 1956 and resident in
Liverpool, England. The facts, as they have been submitted by the
applicant, may be summarised as follows.
The applicant is the natural father of two boys born out of
wedlock, J born in October 1986 and A born in May 1989. He had a
relationship with the mother of the children over a period of three
years, cohabiting between October 1986 and May 1989.
Following the breakup of this relationship (shortly before the
birth of A) the boys lived with their mother and for about two and a
half years between November 1989 and April 1992 the applicant enjoyed
generally satisfactory access to the children pursuant to various court
orders. A Court Order (by consent) of 27 April 1992 gave the applicant
parental responsibility pursuant to section 4(1) of the Children Act
1989 and fortnightly contact.
After a series of disputes over access and one particular
incident of violence between the applicant and the mother's boyfriend
which was witnessed by the children in June 1992, the mother refused
to allow contact to continue. Unable to accept this, the applicant
attended week by week for the contact with his sons which was not given
and on two occasions the police were called to deal with disturbances.
On 26 March 1993 following five court welfare reports and a
hearing by the County Court at which the applicant was represented by
counsel, the contact order made on 27 April 1992 was rescinded and a
general prohibition was made against the applicant prohibiting him from
using violence towards or harassing the children or their mother. In
particular the County Court noted the mother's genuine belief that
contact between her children and their father was harmful to them and
furthermore referred to the applicant as a man totally obsessed with
his rights and the duties of other people towards him. It also noted
that the eldest boy held the firm view that he does not want to see his
father and notwithstanding his young age his brother was beginning to
fear his father. On 1 December 1993 the appeal brought in person by
the applicant to the Court of Appeal was dismissed and leave to the
House of Lords was refused. On 16 December 1993, the County Court
ordered a sixth court welfare report on the specific question of
contact before refusing a further requested contact order.
A further application for a contact order, made by the applicant
in person, was refused by the County Court on 13 July 1994. In
reaching this conclusion, the Court referred to the bitterness which
existed between the parties and also referred to the applicant as "a
man with an obsessive outlook who had lost any sense of proportion,
balance and judgment". The Court also rescinded the order of parental
responsibility made on 27 April 1992 agreeing with the mother that his
use of parental responsibility was not for well intentioned reasons,
but rather to oppose any decision by the mother.
On the same day, the County Court made an order prohibiting the
applicant from visiting the children's school on the basis that the
father's approach to the school was really a "ruse to see the children
and was not sincerely intentioned". It accepted the evidence of the
mother that if the children saw the applicant at school they would
become hysterical and that if he visited the school in their absence
it would nonetheless come to their attention, causing them to be upset
and to lose confidence in the school and in their mother. In addition,
the Court made an order under section 91(14) of the Children Act 1989
that the father should make no application to the court under the
Children Act 1989 in relation to contact or parental responsibility
during the next three years without leave of the court.
Following a hearing at which the applicant appeared personally,
the Court of Appeal dismissed the applicant's appeal on 1 May 1995
finding that there was at least a real danger that the manner in which
the order of parental responsibility was being used at the time was
such that it was right, although with hesitation, to rescind it. In
relation to the order made by the lower court prohibiting the applicant
from making any application for the next three years without leave, the
Court of Appeal found that it was premature and set it aside. However,
it did warn the applicant that if he made another request for contact
which was unsuccessful then such an order could become justified. It
also commented that contact with his children might be open to
discussion at a less immediate future date should such an initiative
be taken by the children themselves.
Legal aid had been refused to the applicant for the proceedings
in the County Court and his appeal to the Court of Appeal on the basis
that his appeal was not likely to succeed.
COMPLAINTS
1. The applicant invokes Article 8 and complains that the rescission
of the order of parental responsibility made in his favour amounts to
an interference with his right to respect for family life. He also
claims that this constitutes a breach of his children's rights under
Article 8. He also complains that the order prohibiting him from
visiting his children's school together with his lack of parental
responsibility amount to a breach of Article 8.
2. The applicant also complains that he is discriminated against as
a natural father because parental responsibility can only be rescinded
under section 4 of the Children Act in the case of a natural father.
The applicant claims that compared with married fathers and unmarried
mothers he has been the victim of a violation of Article 8 together
with Article 14.
3. The applicant invokes Article 6(1) in relation to the complaint
that without parental responsibility he would have no standing in any
future adoption proceedings.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention of the decision to rescind the order of parental
responsibility and to issue a prohibited steps order preventing him
from going to his children's school. The applicant also complains under
Article 14 together with Article 8 (Art. 14+8) that the Children Act
1989 discriminates against natural fathers of children born out of
wedlock in relation to the rescission of parental responsibility.
Article 8 (Art. 8), so far as relevant, provides as follows:
"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 ... for the protection of health or morals, or for
the protection of the rights and freedoms of others."
Article 14 (Art. 14) provides:
"The enjoyment of the rights and freedoms set forth in
[the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, birth or other
status."
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of these complaints and that it is
therefore necessary in accordance with Rule 48 para. 2 (b) of the Rules
of Procedure to give notice of this part of the application to the
respondent Government.
2. The applicant complains that without parental responsibility he
would have no standing in any adoption proceedings which may take place
with respect to his two children born out of wedlock. He invokes
Article 6 para. 1 (Art. 6-1) which guarantees access to a court, inter
alia, in the determination of a civil right.
The Commission recalls that, according to the constant case-law
of the Convention organs, the Convention does not provide for an action
popularis or permit individuals to complain about a law in abstracto.
An applicant must be able to demonstrate that the measures, about which
the applicant complains, have been applied to the applicant's detriment
or that the applicant is personally and directly affected by those
measures (cf., for example, Eur. Court HR, Klass v. Germany judgment
of 6 September 1978, Series A no. 28, p. 18, paras. 33-34 and Marckx
v. Belgium judgment of 13 June 1979, Series A no. 31, p. 13, para. 27).
In the present case the Commission notes that no adoption
proceedings have been introduced thus the question of the applicant's
standing in those proceedings does not arise at this time. In these
circumstances the Commission considers that the complaint of the
applicant in respect of his lack of standing in adoption proceedings
may be premature. To the extent however that it might be said that the
applicant's existing civil rights were determined in the proceedings
before the County Court and Court of Appeal, the Commission finds that
the decisions of these courts took place after hearings which complied,
procedurally and substantively with the requirements of Article 6
para. 1 (Art. 6-1) of the Convention.
Accordingly, the Commission finds that this complaint must be
declared inadmissible as manifestly ill-founded pursuant to Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECIDES TO ADJOURN the examination of the applicant's complaints
that there has been an interference with his right to respect for
family life and that he has been subject to discrimination as a
natural father;
unanimously
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy