AS TO THE ADMISSIBILITY OF
Application No. 28625/95
by Peter WHITEAR
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
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 30 June 1995 by
Peter WHITEAR against the United Kingdom and registered on
21 September 1995 under file No. 28625/95;
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 1948 and resident in
Buckinghamshire in England. The facts as submitted by the applicant
and contained in the relevant documents may be summarised as follows.
The applicant and A married in 1981 but separated in 1985,
shortly before their daughter ("F") was born. On 14 May 1985 A issued
a petition for divorce. On 18 February 1986, in the course of the
divorce proceedings, A was granted custody of F and arrangements were
made for the applicant to remain in contact with F. Since 1991 A has
been living with a Mr. S. The applicant lives alone.
On 14 May 1986 the applicant applied to the Court for a contact
order and he was granted an order allowing him to visit F once per
fortnight. Shortly thereafter recriminations between the parents and
disputes as to contact arrangements arose. In 1992 the local authority
became involved because of concern as to the effect that the parents
were having on F. In November 1992 the local authority obtained a
report from a consultant psychiatrist ("Dr. W"). While he described F
as being a child at risk of significant harm from the continuing
hostility that existed between the mother and father, he recorded that
F showed no anxiety or hesitation in meeting the applicant and
described their relationship as healthy. Having seen the parents
together, Dr. W wrote the following:
"it became apparent that the two parents were locked in a power
struggle whereby [the applicant] perceives [A] as using
withholding [F] as a way of controlling him and [A] sees [the
applicant] as shouting at her as a way of controlling her. Both
parents admitted that this pattern of relating had become very
entrenched and it appeared that both of them had resorted to
using the law as a way of trying to gain extra power over the
other."
On 11 May 1993 an order was made by consent providing for F to
live with her mother and to have substantial contact with the
applicant, including staying with him for alternate weekends and for
part of the school holidays. There was provision for contact during
the week by telephone. However, this arrangement did not work
satisfactorily and on 17 June 1994 the Court Welfare Officer recorded
a change in the attitudes of F; she now wished to spend less time with
her father. The welfare officer considered that F's change in attitude
was because she recognised that it was the contact that she was having
with her father that gave rise to the hostility that was clearly
overshadowing the family.
On 18 November 1994 A applied for the contact orders of
11 May 1993 and 25 July 1994 to be discharged and the applicant to be
prevented from making any further application as to contact. She
claimed that the applicant had failed to return F from a contact visit
on 16 November 1994 and that she had to take F out of school the next
day since F was anxious, upset, tired and hungry. Further, she claimed
that the applicant had told F that he would not be returning her on
time in the future. On 2 December 1994 Judge Pearce sitting in the
County Court referred the matter to the High Court and invited the
Official Solicitor to act as guardian ad litem to F. The applicant
denied the allegations and on 13 February 1995, applied for a residence
order.
By 16 June 1995, when the matter came before the High Court there
had been eighty-five applications to the court by A and the applicant
of which forty three related directly to contact.
In the course of the proceedings before the High Court, the
Official Solicitor, following recommendations from an experienced child
psychiatrist, Dr. S, recommended that F should continue to live with
her mother, that face-to-face and telephone contact with her father
should cease but that contact by letter should be encouraged. Dr. S
had based his recommendations contained in his report on interviews
that he had carried out with the applicant, A, F and Mr. S. He
concluded that F was well cared for by A and that were her carer to be
changed by order of the court, it would have a disastrous effect on
her; she would suffer a profound sense of loss, bereavement, a sense
of betrayal and resentment and her capacity to develop relationships
with others would be interfered with. He stated that F had expressed
her opinion that she should have no contact with her father very
cogently and that she had adhered to this view despite an apparently
successful contact session with the applicant. He further stated that
although she was no doubt influenced by the views of her mother, he
believed her views were genuinely held and that serious note should be
taken of her wishes. Dr. S concluded that there should be no enforced
contact with the applicant and that were F to wish for contact, it
would be facilitated by A and Mr. S. As regards the possible benefits
of the court enforcing contact, Dr. S stated as follows:
"Her father is not a stranger to her. She has grown up with the
knowledge of who and what he is and she is aware of paternal
relations. She is aware that if and when she wants to resume
contact with her father, and paternal relations, this would be
facilitated by her mother, at her request. She is of an age and
capacity when she can write letters and make telephone calls of
her own volition and, as she gets older, she will certainly be
in a position to seek contact with her father if she wishes. She
is not growing up devoid of male influence for Mr. S does appear
to be a satisfactory step-parent. In my opinion F requires a
lengthy period of stability without the hassle and inevitable
strain that follows contentious litigation.... F is the
unfortunate victim of her parents' ongoing "battle" and if this
matter drags on and on, without a definitive decision, it will
only prolong the insecurity for F - and with it, have a
detrimental effect on her development and, I would submit, cause
serious harm.
I have no doubt that [the applicant] has much to offer F in terms
of his general cultural interests and in time it may be feasible
for F to turn to him and to learn from him. She will, however,
need to develop a strength of character, a quality of resilience,
"toughness" and independence that I think it was not easy for her
mother to attain. Whilst I would not at this stage advocate
defined contact, there is no reason why [the applicant] should
not be encouraged to maintain written contact with F,
particularly at times of celebrations such as birthdays and
Christmas, so that he remains "alive" in F's mind, thereby
encouraging her to resume contact when she feels more secure."
On 16 June 1995 Mr. Justice Johnson, dismissed the applicant's
application for a residence order and, accepting the recommendations
of the Official Solicitor and Dr.S, ordered that unless otherwise
previously agreed in writing between A and the applicant, there should
be no contact by the applicant, either face to face, by telephone or
in any other way, save that the applicant should be permitted to write
and send gifts to F once per calender month. In the course of his
judgment he stated the following:
"But it is obvious, I think, that Dr. S has it right when
he says that contact cannot continue in the sense of face-to-face
contact or indeed of contact over the telephone. There have been
no less than forty-three court hearings in which judges have
sought to wrestle with the problems created for [F] by her
parents. I think [F] is entirely right in her judgment in the
matter, that the only way to preserve her security and to give
her the peace which she wants and which she deserves is to cut
off contact. That I propose to do. It is a result which I
regard as being the best option for [F] not in the sense that I
think it is a good option but I think it is the least bad of the
options. It is a result which I regard as totally unjust to the
father and one which the mother may regard as a step towards the
ambition about which she spoke ... in November 1992..."
On 11 March 1996 the applicant was refused leave to make an
application for a residence order. On 7 June 1996 the applicant made
a further application for leave to apply for a residence order but the
judge advised him to re-apply for leave to apply for a contact order.
This he did on 3 July 1996. On 26 July 1996 the parties came before
the court and leave was again refused. The applicant made a further
application for leave on 9 September 1996 which was again refused.
COMPLAINTS
1. The applicant complains under Article 8 of the Convention of an
interference in his right to respect for his family life. The
applicant accepts that the order denying him access to his daughter is
in accordance with the law, in that it was made under the Children Act
1989 but does not accept that it was necessary for any of the reasons
set out in the second paragraph of Article 8.
2. The applicant further complains under Article 5 of Protocol No. 7
that, in being refused contact with his child, he was not treated
equally with his former spouse who now enjoys unlimited contact with
A and that the denial of contact was not in F's interest.
THE LAW
1. The applicant complains that the refusal to grant him access to
his child constitutes an interference in his right to respect for his
family life in violation of Article 8 (Art. 8) of the Convention. That
provision 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 recognises that in principle a parent always has
a right of access to his or her child under paragraph 1 of Article 8
(Art. 8-1) of the Convention (see Eur. Court HR, W v. United Kingdom
judgment of 8 July 1987, Series A No. 121, p. 27, para. 59). However,
when deciding the question of access to children on the break-up of a
marriage, domestic courts may properly take into account under
paragraph 2 of Article 8 (Art. 8-2) a child's mental stability and
physical well-being. In every case where a domestic court has refused
to a parent a right of access to his of her children, the Commission
nevertheless ultimately has the task of judging whether such a refusal
was justifiable under paragraph 2 of Article 8 (Art. 8-2) and in
particular, whether it was supported by necessary and sufficient
reasons (see Eur. Court HR, Olsson v. Sweden (no. 1) judgment of
22 June 1989, p. 32, para. 68; Johansen v. Norway judgment of
7 August 1996, para. 64 to be published in Reports 1996).
The Commission recalls that while authorities enjoy a wide margin
of appreciation in assessing the necessity of taking a child into care,
a stricter scrutiny is called for in respect of further limitations,
such as restriction placed by the authorities on parental rights of
access (see Eur. Court HR, Johansen v. Norway judgment, ibid). The
Commission considers that such principles apply equally to a decision
as to the rights of access of a parent who has not been granted custody
of his/her child.
In considering whether the right of access to a child by a parent
not entitled to custody, is or is not in accordance with Article 8
(Art. 8) of the Convention, the Commission considers that the best
interests of the child are of crucial importance (see Johansen v.
Norway, ibid). Consequently, the interference would be justified as
pursuing a legitimate aim when intended to protect the child's health
(in the broad sense) (see no. 7911/77, Dec. 12.12.77, D.R. 12 p. 192).
As regards whether the interference was necessary in a democratic
society, the Commission must consider whether the reasons were
"necessary and sufficient" in the light of the case as a whole (see
Eur. Court HR, Johansen v. Norway, referred to above).
The Commission observes that in this case the applicant was
initially able to see his daughter without too many difficulties, but
that because of disputes between himself and A access became
increasingly problematic. A situation developed where the applicant
and A were constantly applying to the courts; over 85 applications
appear to have been made of which at least 45 concerned access. On the
advice of Dr. S, a child psychiatrist, who considered the constant
litigation between the applicant and A to be damaging to F, the Court
finally terminated the applicant's access rights on 16 June 1995. The
Commission notes that the judge considered his judgment caused severe
injustice to the applicant. However, the Commission also notes the
specialist advice on which his decision was based. From the report of
Dr. S, it appears that F expressed a wish not to see the applicant any
more. In view of the fact that she was 10 years old at the relevant
time, and taking into account the assessment of Dr. S that she had
sufficient maturity to know her mind, the Commission considers that the
determination of the judge pursued the legitimate aim of protecting the
health (in the broad sense) of F.
The Commission recalls that when determining the rights of access
between parents, the State is attempting to minimise the damage caused
by a broken relationship. Thus, it attempts to balance the interests
of the mother, the father and the child. As stated above, the
Commission has always regarded the interests of the child as primary.
In view of the recurrent litigation between the applicant and A, the
judge considered the stability of F to be sufficiently threatened to
require him to make a determination that would cause injustice to one
party. When he took the decision to end contact between the applicant
and F, he was aware that this was unjust to the applicant. However,
having considered all the possible solutions and balanced the interests
of the parties involved, he decided that this was the best solution for
F. In the circumstances the Commission considers that the interference
was justified for the purposes of Article 8 para. 2 (Art. 8-2).
It follows that this complaint must be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains under Article 5 of Protocol No. 7
(P7-5) that he has not been treated equally to A and that the Court's
decision to refuse him contact was not in F's interest.
The Commission recalls that the United Kingdom has not ratified
Protocol No. 7.
It follows that this complaint must be dismissed as incompatible
ratione personae in accordance with Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy