CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    Application No. 11117/84                   by E.M. and C.M.                   against the United Kingdom             The European Commission of Human Rights sitting in private on 7 May 1987, the following members being present:                   MM. C. A. NØRGAARD, President                   G. SPERDUTI                   J. A. FROWEIN                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   G. TENEKIDES                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ                 Mr.   H. C. KRÜGER Secretary to the Commission           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 August 1984 by E. and C. M. against the United Kingdom and registered on 4 September 1984 under file N° 11117/84;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The application is presented by Ms.   E.M., born in 1948 and her daughter, born out of wedlock in 1980 and concerns certain aspects of the legal status of "illegitimate" children under Scots law.           The applicants are represented by Mr John Hanlon, Solicitor, of Messrs McSherry, Halliday & Co., T. Gordon Coutts, Q.C., and Douglas J. May, advocate.           The first applicant raised an action of affiliation and aliment against Mr.   J. in Kilmarnock Sheriff Court on 18 May 1983 She sought a finding that the defender is the father of the second applicant, and an order for payment of aliment for her child.   The court was also asked to appoint the first applicant guardian of the child under Section 4(2A) of the Guardianship of Infants Act 1925.           Mr J. stated, in his defence, that he was not the father of the second applicant.           The parties to the action brought by the first applicant lodged in court a joint minute stating that the first applicant and Mr.   C were willing to give samples of blood but that no competent person could grant authority to obtain blood from the child.   They asked the court to appoint a curator ad litem to represent the child's interest in the action and to remit the case to Court of Session to enable the parties to seek its consent for a blood sample to be taken from the child.           In the meantime, in January 1983, Sheriff Smith in Kilmarnock Sheriff Court had ruled in the case of Susan Clarke that the mother of an "illegitimate" child could not consent to take blood tests for purposes of evidence in paternity proceedings since she did not have the status of tutor of the child.   He had advised the mother, in that case, to petition the Court of Session, asking it to use its special equitable jurisdiction to authorise the taking of blood tests. On 26 April 1984 the Court of Session gave its order authorising the taking of blood in the Susan Clarke case.           On 15 May 1984 the Sheriff refused the request made in the joint minute, stating that the appropriate procedure was not to transfer this action to the Court of Session, but to present a separate petition to the Court of Session, asking it to use its special equitable jurisdiction (nobile officium).   He also denied the first applicant's request to be appointed guardian on the basis that Section 4(2A) does not apply where a child has a parent.           The first applicant, accordingly, petitioned the Court of Session in August 1984.   The petition stated that as the first applicant was not the tutor of the child she was unable to give the necessary consent to taking a blood test.   It asked the Court of Session to give its authority for a blood test to be taken.           On 4 October 1984 the Court of Session appointed Mr.   Stein, advocate, to be curator ad litem to represent the interests of the second applicant (C.M.).    The curator ad litem lodged answers in July 1985 requesting that the petition be dismissed. He stated that it was not competent for the court to grant authority to take blood tests without the consent of the child concerned or of a proper person on her behalf.   He also alleged that no person is lawfully entitled to give his consent.           Since the lodging of the application the law in Scotland concerning children born out of wedlock has been changed by the Law Reform (Parent and Child) (Scotland) Act 1986 which came into force on 8 December 1986.           Under Section 2 of the 1986 Act "a child's mother shall have parental rights whether or not she is or has been married to the child's father".   Parental rights means "tutory, curatory, custody or access, as the case may require and any right or authority relating to the welfare or upbringing of a child conferred on a parent by any rule of law" (Section 8).           Consent to the taking of blood samples from a pupil child can now be granted by either his tutor or any person having custody or care and control of him or by order of a court (Section 6 (2) and (3)).           The first applicant is now competent, as the second applicant's tutor, to consent to blood tests being taken from the second applicant.   COMPLAINTS           Articles 8 and 14           The applicants complained of the following aspects of the status of the "illegitimate" child under Scots law.           Under Scots law the parents of a "legitimate" child have the rights of guardianship in respect of their child with the consequent powers to act in the child's interest to grant consent to blood tests, to administer the child's property, to raise court actions in respect of pupil children and to consent to actions raised by minor children. Moreover, a "legitimate" child has the right to the protection and guidance of his parents or, in the event of his parents being dead, to such guardians as are appointed to him by parental testament or by a court under the Guardianship of Infants Act 1925.           An "illegitimate" child, on the other hand cannot have a legal guardian.   If the child has property an application has to be made to the court for the appointment of a factor loco tutrix.   If the child, when a pupil, requires to raise an action, the action has to be raised in the child's name and a curator ad litem appointed by the court.   Scots law denies to the mother the tutory or curatory of her "illegitimate" child.           The mother and "illegitimate" child are not recognised by Scots law as a family.   Decisions in relation to the child's well-being and property are required to be taken by a person outside the family. Consequently, the law discriminates against parents and children in the enjoyment of their right to respect for family life, contrary to Articles 8 and 14 of the Convention.   OBJECT OF THE APPLICATION           The applicants sought a declaration that there is a breach of the Convention in respect of their position and that of "illegitimate" children and their mothers under Scots law.   They sought also to persuade the United Kingdom Government to promote legislation to amend the law of Scotland.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 30 August 1984 and registered on 4 September 1984.   The Commission decided, on 10 July 1985, to give notice of the application to the respondent Government and to request it to submit its observations in writing before 8 November 1985 on the admissiblity and merits of the applicants' complaints under Articles 8 and 14 (Art. 8, 14) of the Convention. The observations of the respondent Government were received on 11 November 1985 and the applicants' observations in reply on 30 December 1985.           The Commission again considered the application on 13 May 1986 and decided to adjourn it pending the judgment of the Court of Session in the applicants' case.           In the meantime the Law Reform (Parent and Child) (Scotland) Act 1986 was given the Royal assent on 26 March 1986 and came into force on 8 December 1986.   The applicants' legal representatives informed the Secretariat on 2 Febuary 1987 that, in view of the coming into force of the 1986 Act, the applicants no longer sought to pursue their application.   REASONS FOR THE DECISION           The Commission notes that the applicants complained under Articles 8 (Art. 8) and 14 (Art. 14) of the Convention of the legal status of a child born out of wedlock under the law of Scotland.   It further notes that the applicants now seek to withdraw their application in view of the coming into force of the Law Reform (Parent and Child) (Scotland) Act 1986 which inter alia has the effect of conferring full parental powers on the first applicant in respect of her child.   Against this background, the Commission finds the applicants no longer seek to pursue their application and that there are no reasons relating to the general interest to continue an examination of the application.        For these reasons, the Commission        DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES   Secretary to the Commission             President of the Commission           (H. C. KRUGER)                          (C. A. NØRGAARD)