AS TO THE ADMISSIBILITY OF
Application No. 22597/93
by Thorbergur THORBERGSSON
against Iceland
The European Commission of Human Rights (Second Chamber) sitting in
private on 11 January 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 1993 by
Thorbergur THORBERGSSON against Iceland and registered on
8 September 1993 under file No. 22597/93;
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 facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is an Icelandic citizen, born in 1930. He resides in
Reykjavík. Before the Commission he is represented by Mr. Eirikur
Tomasson, an attorney at law practising in Reykjavík.
I.
In 1980, the applicant took up cohabitation with B. Shortly
afterwards they moved to Norway where their daughter A was born on
10 August 1982. B had two older children of a previous relationship.
In 1983, the social welfare authorities in Norway became concerned
with the situation of the children due to B's alcoholism and adverse
domestic conditions. At that time the applicant was working on Norwegian
offshore oil rigs and was therefore often away from home due to his work.
In August 1983 the applicant sent his family back to Iceland, but he
remained in Norway. Soon thereafter, the Reykjavík Municipal Department
of Social Affairs concerned themselves with the children, again due to
the mother's alcoholism.
Shortly afterwards the applicant's sister contacted C and D, and
asked them if they were prepared to accept her niece, A, in fosterage.
C and D agreed to consider the matter and discussed it with the staff of
the Reykjavík Child Welfare Committee. In December of the same year a
meeting was held with the applicant, his sister, C and D and others,
where the fosterage of A was discussed.
On 16 December 1983 the applicant signed the following agreement:
(translation)
"I, the undersigned, ..., do hereby grant my consent for the
Reykjavík Child welfare Committee to place my child, A, born
10 August 1982, and my stepchildren, E, born 5 March 1972 and
F, born 14 April 1980, in fosterage for a trial period of
three months with a view to fosterage until the age of 16. My
consent is granted on the condition that my rights of access
are guaranteed under further agreement with the staff of the
Child Welfare Committee and the prospective foster parents."
On 6 March 1984 the Reykjavík Child Welfare Committee decided to
entrust C and D with the fosterage of A on a trial basis and on 25 June
the same year, the Committee decided to entrust them with the fosterage
of A until she would reach the age of sixteen.
In February 1985, the applicant moved back to Iceland and requested
access to his daughter, A. Disagreement arose between him and the foster
parents C and D regarding the applicant's access to A. The foster parents
doubted the purpose of the applicant's access to A while the applicant
insisted on access.
On 3 March 1985 an agreement was reached between the applicant and
the foster parents with the mediation of the staff of the Reykjavík Child
Welfare Committee regarding the arrangement of the access. According to
this agreement the applicant was to have access to his daughter for one
afternoon every second month in the home of C and D in the presence of
a member of the staff of the Committee. The agreement should be valid for
one year on a trial basis. Access proceeded in accordance with this
agreement in September and November 1985 and February 1986. However, no
agreement was reached on the continuation of the access arrangement.
There was great disparity between the views of the applicant and C and
D concerning access.
In March 1986, the applicant and A's mother, B, formally terminated
their cohabitation, which had in fact already come to an end in the
autumn of 1983. On 3 April 1986 the Chief County Magistrate of Reykjavík
confirmed an agreement between the applicant and B, according to which
the applicant should have custody of A.
II.
In April 1986 the applicant requested that the fosterage of A be
terminated. Accordingly, the Child Welfare Committee of Reykjavík
commenced an investigation in the matter, firstly as to whether the
fosterage should be terminated and, in the alternative, as to how the
access of the applicant to A should be arranged. In its decision of
12 May 1986 the Committee held inter alia:
(translation)
"From the case documents it is evident to the Child Welfare
Committee that the neglect of A's parents in respect of her
upbringing and conditions was such that it was necessary and
entirely justifiable to entrust others with the child's care. The
father agreed at the time that the girl should be placed in
fosterage for a trial period of three months with a view to future
fosterage. He put great emphasis on her placement in her present
foster home. The documents reveal that the child was in a poor state
when she came to her foster parents and also that she made excellent
progress there. It appears evident that her upbringing and
conditions are well taken care of by her foster parents and that a
change of her conditions would not be in her interests. For this
reason the Child Welfare Committee cannot agree to the father's
demand that the fosterage should be terminated.
In the opinion of the Committee it is also clear that the foster
parents have not made a satisfactory effort to encourage a positive
relationship between the child and her father. It is the opinion of
the Child Welfare Committee that the child has the right of access
to her father and natural family. It is the duty and responsibility
of the foster parents to respect that right and actively contribute
to as positive a relationship between them as circumstances will
allow. There is nothing in the case documents to justify a decision
to deprive [the applicant] of his right of access to the child."
On the basis of the Act on Children's Welfare No. 53/1966, sections
1 and 13, the Child Welfare Committee accordingly passed the following
decision:
(translation)
"The girl, [A], shall remain with her foster parents and the
decision of the Committee of 25 June 1984 shall stand. It is
furthermore the decision of the Committee that access between child
and father shall be as follows: 5 whole days a year, 8-9 hours each
time at regular intervals, of which one day shall be at Christmas.
Access shall take place alternately in the home of the foster
parents and the home of the natural father."
The applicant appealed against this decision to the Child Welfare
Council which confirmed it in a decision of 24 July 1986. The applicant
did not bring the case before the courts.
In the autumn of 1986 the foster parents moved to Norway for a
year's stay. This intention had been the cause of disagreement regarding
the applicant's right of access to his daughter. Nevertheless, the
applicant met with his daughter on 17 and 18 October 1986 in Norway, on
30 December 1986 in Reykjavík and on 7 March and 24 May 1987 in Norway.
The foster parents returned to Iceland in August 1987. The applicant
then immediately requested access to his daughter. The foster parents
considered it contrary to A's interests for the access to take place in
the home of the applicant but permitted that he visited her five times
a year. The applicant resided in Reykjavík but the foster parents resided
in Blonduos, which is in the north of Iceland. The applicant visited A
on 13 August and 24 October 1987 in Blonduos.
The disagreement concerning the arrangement of the applicant's
access to A continued. On 14 December 1987 the Reykjavík Child Welfare
Committee decided that access should take place in the home of the foster
parents. This arrangement should apply for the following two years and
the matter should be reviewed in the autumn of 1989. Access took place
in accordance with this arrangement on 29 December 1987 and
26 March 1988. The applicant, however, was not satisfied with the
arrangement.
III.
In March 1988, the applicant requested the intervention of the Child
Welfare Council in the disagreement between him and the foster parents
concerning access to A. The Council took up the matter and in October of
the same year the applicant wrote a letter to the Council where he
requested custody of A.
On 10 November 1988 the Child Welfare Council decided as follows:
(translation)
"The child shall have access to her father four times each year,
four hours each time. Access shall take place alternately in the
home of the foster parents and in the home of the father. All access
shall take place under the supervision of the Reykjavík Child
Welfare Committee. The first meeting under this decision shall take
place in the home of the foster parents."
The applicant was very dissatisfied with this decision. In
particular, he objected to the fact that according to the decision of
10 November 1988, a social worker should be present when he met A. He
refused to meet A at Easter 1989 for this reason.
The applicant did not challenge the Child Welfare Council's decision
before the courts. However, he complained to the Parliamentary Ombudsman
about the decisions and interventions of the child welfare authorities
in the case. Having investigated the matter the Ombudsman concluded on
3 May 1989 as follows:
(translation)
"Section VIII of the Children's Act No. 9/1981 provides for mutual
access rights between parents and children. This right of parents
and children is specifically protected in Article 8 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms. Restricting this right is unavoidable if a child is placed
in fosterage, and further restrictions may be unavoidable if access
to the parent poses a danger to the child. In the present case,
however, nothing has emerged which could justify the severe
restriction of access rights described in the minute entry of the
Icelandic Child Welfare Council of 10 November 1988. The opinion of
the Council that [A] has "no need to see her father more frequently
than four times a year" is improper and cannot justify this
arrangement of access rights.
In accordance with the above it is my recommendation that the
Icelandic Welfare Council review its decision on the access rights
of [the applicant] and [A]."
The Child Welfare Council refused to comply with the Ombudsman's
request to pass a new decision on the applicant's right of access to his
daughter.
A visited the applicant on 17 June 1989 and he visited her in the
foster home in October of the same year. At Christmas the applicant
refused to see A as he did not wish a social worker to be present. A had
then come to Reykjavík expressly for the purpose of meeting him. On
14 July 1990 the applicant visited A, but from that time onwards it
appears from the documents submitted by the applicant that no further
meetings took place as the applicant did not accept that a member of the
Child Welfare Committee staff should be present.
On 21 December 1990 the applicant requested the Reykjavík Child
Welfare Committee to recognise his right of access to his daughter and
that the access be so arranged in the future that their relations could
be as normal as possible. The applicant repeated his request on
1 February 1991 and set the express condition that A should be allowed
to associate with him in his home without supervision on the part of the
child welfare authorities. At a meeting of the Child Welfare Committee
on 27 February 1991 an entry was registered in the minutes with the
following conclusion:
(translation)
"The Committee has used every possible recourse to effect a
reconciliation in the matter and to establish as normal access as
possible between father and daughter. The Child Welfare Committee
feels it cannot bring about access by coercive means, and it is
probable that this could increase further the existing tension and
in the end the victim could be the child itself. For this reason the
Child Welfare Committee is unable to undertake to bring about
further access between father and daughter at this time."
The applicant appealed against this decision to the Child Welfare
Council, which passed a decision on 21 August 1991, worded as follows:
(translation)
"It is the decision of the Council that [A], born 10 August 1982,
shall not associate with her natural father, ..., at present. It is
furthermore decided that [A] shall remain in fosterage with [C and
D]."
When this decision of the Child Welfare Council was received the
applicant instituted proceedings against the Child Welfare Council and
C and D in the District Court of Reykjavík, where he requested that the
decision of the Council be overturned, that his right of access to A be
recognised and a decision be passed in determination of his access
rights. In its judgment, dated 12 June 1992, the District Court stated
inter alia as follows:
(translation)
"In this case the parties have repeatedly been subjected to
conditions regarding the arrangements of the access of [the
applicant] to the girl [A]. It is a fact, however, that [the
applicant] has been unwilling to accept the conditions to which he
has been subjected. He has from the beginning instigated disputes
regarding the access despite the fact that he has been granted
access to the child beyond what is normal. Only two months after
entering into an agreement with the defendants in March 1985 he
consulted a lawyer regarding the matter. Despite the fact that the
agreement was honoured to the letter by the defendants, he wanted
further access and would not submit to the supervision of the staff
of the Reykjavík Child Welfare Committee. He repeatedly refused [to
meet A] due to the condition of the presence of the staff members.
[The applicant] has made various allegations regarding the
defendants, he harassed them and their relatives in various ways.
He also threatened the staff of the Child Welfare Committee and the
Child Welfare Council.
[The applicant] has shown no understanding of the circumstances of
the girl. He has very unrealistic ideas about children and their
upbringing. He brought the child presents immoderately. The presents
were not always appropriate to the child's abilities and needs and
he did not consult with the foster parents regarding presents. On
the contrary, he disregarded the instructions of the staff of the
Child Welfare Committee and even gave the child things which he knew
the child already possessed. With his promises and presents he
raised unrealistic expectations in the child.
The attitude of [A] to [the applicant] has varied in the course of
time. The reports of the staff and experts in this matter indicate
that she regarded the defendants in this case [C and D] as her
parents and felt that [the applicant] was a disturbance in her life
and she was inclined to leave him out of her existence. The girl
repeatedly refused to go to [the applicant] and the defendants had
to persuade her and she also said to the staff that she did not wish
to visit [the applicant] nor have him visit her. The opposition of
the child to relations with [the applicant] has increased in the
past months. From the above it is clear that [the applicant] had
always demanded and been granted access to the child on his own
terms rather than hers.
It must be regarded as a principle under Icelandic law that parents
and children who do not reside together have rights of access to one
another. As regards children and parents who do not have custody
this right is regulated by law in section 40, cf. section 41 of the
Children's Act No. 9/1991 and section 47 of Act No. 60/1972 on the
Establishment and Termination of Marital Relations. In Icelandic law
there are no specific provisions on the access of natural parents
and their fostered children. By the nature of the case, however, the
above principle must also apply to parents and their children under
such circumstances...
According to expert testimony, the child [A] was in a very poor
state psychologically and physically when she was removed from the
home. The mother was severely alcoholic but it must be regarded as
clear that the father could not manage his role as a parent. There
is thus no doubt that the intervention of the child welfare
authorities, the removal of the child from her home and her
placement in fosterage, are measures taken from the point of view
of child welfare, also with respect to the father, cf. Act No.
53/1966 on the Protection of Children and Adolescents... The natural
parents both agreed to the fosterage without deprivation of custody
taking place. Matters of fosterage are at the discretion of child
welfare authorities and fall within the scope of Act No. 53/1966.
The child welfare authorities are empowered to decide that a child
remain in fosterage even if a natural parent who has not been
deprived of custody requests that the child be returned to him/her
under section 36, subsection 3 and sections 32, 26 and 13 of the
same Act...
The access of parents and children is a principal right and cannot
be restricted unless there are important and legitimate reasons for
doing so. It is another principle of Icelandic law that in the
consideration of cases involving children the welfare of the child
shall be the guiding principle, i.e. what is best for the child.
This principle is contained in section VIII of the Children's Act
No. 9/1981 and section 16, subsection 3 of Act No. 53/1966, and
arises out of the nature of the case... It is the opinion of the
Court that in the interests of a child there may be legitimate
reason to prohibit access of a parent to a child if the access
causes anxiety and tension, directly or indirectly, i.e. due to the
disruptive effect of the access on the environment of the child.
Thus the Child Welfare Council bases its decision on legitimate
grounds...
On the part of [the applicant] it is contended that in its
assessment the Child Welfare Council gave in to the opposition of
the foster parents and gave up trying to establish equitable access
rights. The documents of the case show beyond any doubt that from
the beginning the relations between the natural father and the
foster parents have been poor...It is unavoidable that a child will
become aware of tension between those who are closest to the child
and that this will affect the child. It is proper, in the view of
the Court, to take account first and foremost of the feelings of the
child in this regard. The documents of the case also show that
numerous members of the staff of the child welfare authorities have
made an effort to reconcile the conflicting views of the parties and
offer them guidance so that access could be established...
It is in the important interests of a child to live a normal family
life and it is the child's right that this life be protected,
whether in the care of natural parents or foster parents. The child
has been with her foster parents since the age of two and is now
reaching the age of ten. All the documents of the case indicate that
she has made progress, that she has adapted well and is content with
her foster family. On the other hand, she has had social
difficulties in school and the dispute of her adult relatives have
caused tension which has had an adverse effect on her. Everyone who
has worked on the case and testified before the Court agrees that
it would be best if peace could be established in the child's
surroundings so that she could have access to her natural father as
well. From the testimony of the parties [the applicant, C and D] it
is clear that they have not attempted to resolve their strained
relations with the child's interests in mind. There are no time-
limits on the decisions of the Child Welfare Council and therefore
the case can be reopened when there is reason to do so...
On the grounds indicated above the Court rejects [the applicant's]
claim that the decision of the Child Welfare Council of
21 August 1991 be overturned ..."
The applicant appealed against this judgment to the Supreme Court
which upheld it by judgment of 11 February 1993. The conclusion was inter
alia based on the following grounds:
(translation)
"The parent's right of access to his/her child following divorce was
introduced into law with the passing of Act No. 60/1972 on the
Establishment and Termination of Marital Relations. In the
Children's Act No. 9/1981 this right was extended to legitimate and
illegitimate children alike and phrased so in section 40, subsection
1:
'If only one parent has custody of a child, the
child has the right of access to the other parent,
who is then obliged to associate with the child and
to observe further conditions as may be pertinent.
If the Ministry of Justice considers that special
circumstances make the access of a child to its
parent contrary to its interests, the Ministry may
suspend the right of access.'
Under law this right has thus been made subject to the condition
that there are no objections to the parent's right of access to the
child due to special circumstances. This is still the case, cf.
section 37, subsection 3, of the present Children's Act No. 20/1992.
The placement of a child in fosterage is a child welfare measure.
The Act on Children's Welfare No. 53/1966, which was valid until 1
January 1993, did not provide for the access of children in
fosterage to their natural parents. The facts of this case reveal
that in practice the procedure has been established among child
welfare committees that agreements are made so that a parent may
associate with his child one to four times a year. In Act No.
58/1992 on the Welfare of Children and Adolescents, which took
effect in January 1993, there are provisions in section 33 on the
access of children in fosterage to their natural parents. Subsection
3 of the said provision states that a child welfare committee may
rule that the parents' rights of access shall be suspended if
special circumstances make such access contrary to the needs and
interests of the child in the opinion of the committee.
Provisions on the permanent fosterage of children are now to be
found in Act No. 58/1992. In subsection 1 of section 29 of the said
Act the fosterage of children is defined, and subsection 2 states
that fosterage can be of two kinds, permanent or temporary.
Permanent fosterage means that it continues until custodial duties
terminate under law.
When a child is placed in permanent fosterage until the age of 16
it is generally not intended that the foster child return to its
parents. The purpose of such measures is to ensure the child a good
upbringing and care until majority age.
There is no disagreement in this case that [the applicant] has a
right to access to his child unless there are important reasons to
the contrary...
It is clear that the access of [the applicant] to the child has
created very difficult conditions which it has turned out to be
impossible to improve despite repeated attempts on the part of the
child welfare authorities. It has also appeared that the child
showed no express desire to associate with her father in the way he
demanded. This led to great tension and difficulty in the child's
domestic life in the home of its foster parents. The result was that
a choice had to be made as to which should count for more, the
interests of the child or those of the father.
On the basis of an examination of these elements and having regard
to the purpose of placing a child in permanent fosterage, the
conclusion must be that the arguments supporting the ruling of the
defendant, the Child Welfare Council, which was carefully prepared
and based on expert testimony, were so weighty that this ruling
should remain unaltered. The judgment appealed against is thus
upheld."
COMPLAINTS
The applicant complains that the Icelandic child welfare authorities
have acted contrary to Article 8 of the Convention by failing in their
duty to grant him a right to normal access to his daughter:
- firstly by limiting his access to his daughter in the ruling
of the Icelandic Child Welfare Council of 10 November 1988,
where access was limited to four times per year, four hours
each time; and
- secondly by subsequently terminating entirely his access to
his daughter for an unspecified period of time in the decision
of the Child Welfare Council of 21 August 1991.
THE LAW
The applicant complains that the child welfare authorities and the
Icelandic courts have limited and then terminated entirely his access to
his daughter, A, who stays with her foster parents. He invokes Article
8 (Art. 8) of the Convention which reads 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 notes that the events and decisions complained of in
the present case have taken place over a period of ten years. Therefore
the issue can be raised if the applicant has exhausted all domestic
remedies according to Article 26 (Art. 26) of the Commission, as regards
the different decisions complained of.
The Icelandic child welfare authorities first decided in the case
on 12 May 1986 and 24 July 1986 regarding the arrangement of the
applicant's access to A. The applicant did not bring the case before the
courts at that time. Secondly the child welfare authorities decided to
restrict further the applicant's access to A on 10 November 1988. The
applicant did not challenge this decision either before the courts.
Thirdly, the Icelandic child welfare authorities terminated the
applicant's access to A by a decision of 27 February 1991. The decision
was confirmed by the Child Welfare Council on 21 August 1991. The
applicant decided to challenge this before the courts. A final judgment
in the Supreme Court of Iceland was pronounced on 11 February 1993 and
thus all domestic remedies were exhausted as regards the decision on
termination of access.
In the present case the Commission does not consider it necessary
to decide specifically on the admissibility of the complaints concerning
the former decisions of the child welfare authorities according to
Article 26 (Art. 26) of the Convention. They must be viewed as a
background which lead to the final decision, complained of in the case,
namely the termination of the applicant's access to his daughter.
It is established case-law of the Commission that the right to
respect for family life within the meaning of Article 8 (Art. 8) of the
Convention includes the right of a parent who does not have custody of
a child, to have access to or contact with the child. The mutual
enjoyment by parent and child of each other's company constitutes a
fundamental element of family life (e.g. Eur. Court H.R., Rieme judgment
of 22 April 1992, Series A no. 226-B, p. 68, para. 54). Furthermore the
Commission considers that the natural link between a parent and a child
is of fundamental importance and that, where actual family life in the
sense of living together has come to an end, continued contact is
desirable and should in principle remain possible. Respect for family
life within the meaning of Article 8 (Art. 8) thus implies that this
contact should not be denied unless there are strong reasons which
justify such an interference (e.g. Jonsson v. Sweden, No. 12495/86, Dec.
7.12.87, D.R. 54 p. 187).
In the present case the Commission recalls that the applicant is the
father of an eleven year old girl, A. The applicant lived with A and her
mother, B, in Norway until B moved with A to Iceland in 1983. The
applicant remained in Norway until he moved to Iceland in the beginning
of 1985. Soon after B and A came to Iceland it appeared that B was not
capable of taking care of A. In March 1984, when A was one and a half
years old, she was placed in fosterage with C and D with the applicant's
consent, but on condition that his right of access to A would be
guaranteed.
First the Commission must examine whether the decision to terminate
access was an interference with the right to respect for family life
which is guaranteed in paragraph 1 of Article 8 (Art. 8-1) of the
Convention. Second, if there was an interference with family life, it
must examine whether such interference can be justified under paragraph
2 of Article 8 (Art. 8-2).
The Commission finds that the relationship between the applicant and
A in the circumstances described above falls within the scope of the
concept of actual "family life" which was established between them at the
time of A's birth when her parents were living together. Furthermore, the
Commission is of the opinion that the decision to refuse the applicant
access to his daughter was an interference with the applicant's right to
family life, since contact with his daughter constitutes a fundamental
element of that right.
a) In accordance with the law
When considering whether this interference can be justified under
paragraph 2 of Article 8 (Art. 8-2) the Commission will first examine
whether it was in accordance with the law. The lawfulness and the basis
of the decisions of the Icelandic child welfare authorities and
subsequently the Icelandic court decisions will be examined for that
purpose.
The Commission observes that the decisions were originally based on
provisions in the Children's Act No. 9/1981, section 40, subsection 1,
which stated that if special circumstances made the access of a child to
its parents contrary to its interests, the Ministry of Justice could
suspend this right. In the new Act No. 58/1992 on the Welfare of Children
and Adolescents, which took effect in January 1993, section 33,
subsection 3 provides that a child welfare committee may rule that the
parents' right of access shall be suspended if special circumstances make
such access contrary to the needs and interests of the child in the
opinion of the committee. In these circumstances the Commission finds,
and this is not disputed by the applicant, that the interference was in
accordance with the law within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention.
b) Legitimate aim
The Commission notes that the decision to terminate access was taken
in the interests of A or, in other words, "for the protection of the
rights and freedoms of others" within the meaning of paragraph 2 of
Article 8 (Art. 8-2).
c) Necessary in a democratic society
As regards the question whether the interference was "necessary in
a democratic society", the Commission recalls that the notion of
necessity implies that the interference corresponds to a pressing social
need and, in particular, that it is proportionate to the legitimate aim
pursued. However, in examining whether the interference was necessary in
the present case the Commission does not intend to substitute its own
judgment for that of the competent domestic courts. Its function is to
assess from the point of view of Article 8 (Art. 8) the decision which
the courts took in the exercise of their discretionary power.
It is an important function of the law in a democratic society to
provide safeguards in order to protect children from harm and mental
suffering resulting, for instance, from the break-up of the relationship
of their parents. In such cases this purpose may be achieved by keeping
the child away from a situation which could be detrimental to his or her
mental development owing to the existence of a loyalty conflict vis-à-vis
one or both of the parents or foster parents and the inevitable pressure
put on him or her causing feelings of insecurity and distress (cf.
Hendriks v. the Netherlands, Comm. Report 8.3.92, para. 120, D.R. 29 p.
5)
As regards the present case the Commission recalls that the
applicant's access to A, after he returned to Iceland in 1985 until
access was terminated in August 1991, did not lead to a normal
relationship between them. On the contrary, it was marked by the
continuing tension between the applicant and the foster parents. The
authorities, and subsequently the courts, found it established that A had
adapted well and was content with her foster family. The conflict between
A's foster parents and the applicant had on the other hand led to such
difficulties and disturbances in her life that she showed no express
desire to associate with her father.
The Commission finds that the competent national courts carefully
considered the applicant's request for access to his daughter. They came
to the conclusion, however, that, given the difficulties, it was
important for the child's well-being to be kept out of these
difficulties. In these circumstances the Commission is satisfied that the
interference complained of, namely the refusal of the applicant's request
for an access arrangement, could reasonably be considered to be required
by the interests of the child and that the courts, when so deciding, did
not go beyond their discretionary power.
The Commission has not overlooked the applicant's situation. The
absence of one's child may cause considerable suffering to a parent.
However, where, as in the present case, there is a serious conflict which
can only be resolved to the disadvantage of one of them, it is legitimate
under Article 8 (Art. 8) to let the interest of the child prevail.
The Commission concludes, therefore, that the interference with the
applicant's right to respect for his family life could reasonably be
considered to be justified under Article 8 para. 2 (Art. 8-2) as being
necessary in a democratic society for the protection of the rights and
freedoms of another person, namely the child concerned.
It follows that the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy