CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 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 }  AS TO THE ADMISSIBILITY   Application No. 12523/86 by David GRIBLER against the United Kingdom             The European Commission of Human Rights sitting in private on 13 May 1987, the following members being present:                       MM. J.A. FROWEIN, Acting President                         G. SPERDUTI                         M.A. TRIANTAFYLLIDES                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      Mr.   J. RAYMOND, Deputy 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 19 August 1986 by David GRIBLER against the United Kingdom and registered on 4 November 1986 under file No. 12523/86;           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 facts as they have been submitted by the applicant, a British citizen, born in 1935 and of no fixed abode, may be summarised as follows:           The applicant married in April 1973 and from that marriage had one child, a daughter, born on 23 August 1974.   By July 1977 the marriage had broken down and the applicant issued wardship proceedings in the High Court contesting the mother's ability to provide a proper home and making allegations that the mother was an alcoholic.   During the course of these proceedings, the mother received legal aid from the Law Society, whilst the applicant did not.   The hearing came to an end prematurely, by consent, partly due to the applicant's inability to proceed any further due to the expense involved.   An order was made by the judge for care and control of the child to be given to the mother and for the social services department of the area in which the mother was living to supervise this.   Provision was made in the order for the applicant to have access to the child.           In December 1977 the marriage was dissolved, a decree nisi was granted and later the decree was made absolute.           In June 1978 there was an attempted reconciliation between the applicant and the mother, and the High Court made an order allowing them to take the child out of England and Wales to Spain on holiday. This holiday proved successful and, on returning to England, the applicant and the mother agreed to attempt to start a new life in the United States of America.   They left England to settle in the USA indefinitely, taking the child with them.   They did not notify the social services of their plans and they did not seek the leave of the High Court although they were aware that failure to do this would be in breach of the High Court order since the child was still a ward of court.           The social services, in December 1979, restored the matter before the judge who made an order to suspend the supervision order and made an order requiring that the applicant and the mother attend before the court within fourteen days of their return to the jurisdiction.           The reconciliation did not work out and the applicant contends that this was due to the drinking problem of the mother.   The mother and child returned to England and in February 1980, after living in several places, moved to London to live with a relative and a friend of the relative, Mr.   X, and his children.   During this period the applicant returned to England and became very anxious for the child's safety.   He was concerned about the mother's excessive drinking and also the relationship which had developed between her and Mr.   X. The applicant believed him to be both violent and dangerous, and after receiving some inside information from the police about Mr.   X, the applicant was fearful that the child was at serious risk and therefore took her back to America with him on 10 May 1980.   The applicant was aware that this was in breach of the High Court order, but feared that if he expressed his concerns to the High Court, it might put the child into care.           On 13 May 1980 the mother and the social services department of the County Council obtained from the High Court an order requiring the child to be handed over by the applicant.   The applicant was aware of the order but did not comply with it.   Whilst the applicant was in the United States, he corresponded with his solicitors, explaining why he had taken the child back with him to America.   He also corresponded with the mother and offered to pay for her outward journey to visit him and the child;   she did not accept this offer.   The applicant states that he was prepard to return the child to the mother if she was prepared to accept treatment for her drinking problem.           By September 1981 the relationship between the mother and Mr.   X came to an end after she had been seriously assaulted by him. During the course of September 1981, sixteen months after the child had been taken to the United States, the mother travelled out there and had a meeting with the applicant.   The parties could not agree on what action to take and they instituted separate proceedings against one another in the American courts.   Agreement was however quickly reached and was embodied in an order of a Californian Court.   The terms were, inter alia, that the mother was to return to England with the child and to immediately report to the High Court in England, informing it of the return of the child to the court's jurisdiction. In addition, the applicant was to be informed of the child's whereabouts and be allowed to visit and communicate with the child according to the orders made by the High Court.           On the mother's return to England, she took no immediate steps to notify the High Court or the local authority of her and the child's return to the country and she did not notify the applicant of her and the child's whereabouts.   The applicant then returned to England and notified the High Court in November 1981 of the mother's return with the child to the country and began a search for them.           The mother applied ex parte to the High Court for an order that the applicant should not remove the child from her care and control.   The order was granted on 12 November 1981 and it provided that the applicant should not have access to the child except on seven days' notice.   The applicant states that he received no notice of this order until 5 December 1981 when he went round to where the mother and child were living and was denied access to the child.           The mother applied to the High Court for committal of the applicant for a breach of the High Court order in that he had taken the child out of the care and control of the mother and out of the jurisdiction of the High Court on 10 May 1980.   The application was heard and judgment was delivered on 18 January 1982 ordering a two month committal suspended on the condition that the applicant pay £750 compensation to the mother in part discharge of her expenses in tracing the child in the USA.   Directions were also given for the application by the applicant for access to the child and these directions included the submission of a report by the welfare officer and also a report by the supervising authority.           In May 1982 the applicant was granted, by the High Court, a defined period of one hour's visiting access which was to be supervised by the social worker involved with the case.           The welfare officer's report was made on 14 July 1982.   The welfare officer reported that in January 1982 the mother went through a form of "marriage" with a man, Mr.   Y, she had been living with since March 1981.   Mr.   Y at that time was still married and the "marriage" was bigamous.   Separate to this, the mother of the child had received suspended sentences of imprisonment in May 1982 after pleading guilty to certain matters of dishonesty.   There were also various other criminal proceedings pending in connection with a business venture, and the welfare officer reported that it was hoped the outcome of these would not result in the mother's imprisonment.           Despite the difficult position, the welfare officer felt that the mother was caring for the child in an "efficient and capable manner" and additionally the applicant himself was not adverse to allowing the mother to retain custody of the child.   The welfare officer recommended that the applicant be allowed limited access and that the social worker involved should keep himself appraised of how matters progressed and report back to the court.   The child, at this stage almost eight years old, was happy with these arrangements but asked that an elder sibling accompany her on any access visits.           In July 1982 the High Court ordered visiting access for the applicant every three weeks and there then followed a period in which access proceeded according to the court order.   The applicant made application to the court for visiting access for the child to visit his home, but this was turned down following a report by the court welfare officer, made on 17 October 1983.   This report concluded that "until access is a happy event on every occasion for (the child) she will not learn to trust and respect her father and feel secure enough to say yes to visiting access".           In June 1984 the High Court ordered supervised access by the court welfare officer.   The applicant states that on one supervised visit, on the court welfare officer's suggestion, the applicant took his child swimming.   The applicant alleges that on this occasion the court welfare officer molested the child in the swimming pool. The applicant states that he did not intervene or make a complaint at the time as he was worried about the effect the complaint would have on the court welfare officer's report for the court hearing scheduled for July 1984.   At that hearing the applicant complained to the judge who recommended he refer the matter to the appropriate authorities. The applicant wrote to the Inner London Probation Committee, lodging a formal complaint, who, after receiving a denial of the alleged molestation from the court welfare officer concerned, informed the applicant that they would be taking no further action and advised him that if he wished to proceed with the matter he should refer the allegation to the police.   The police, on the ground that no evidence had been provided to substantiate the allegation, took no action on the matter.           From the welfare reports it was clear that not all was well with the access arrangements although they were proceeding.   In July 1984 the child made it clear to the court welfare officer that she was prepared to continue to see the applicant and go out with him only on the clear understanding that she was giving him his last chance and that if he upset her again she would refuse to see him.           In December 1984 the applicant married his present wife whom he had known for over twenty years.           In March 1985 the matter of access was again referred back to the High Court.   The child was said to be upset by the access visits and refused to see the applicant.   The social worker reported that the child "is adamant that she does not want to see her father again, and I could not get her even to consider access which would be entirely on her own terms.   She did, however, accept that her view may change with time.   I think (the applicant) will have a lot to do, and from a distance, before he will be able to re-establish any kind of rapport with his daughter."           It was on this evidence that the judge on 25 March 1985 discharged the access order, and the applicant has not seen the child since that date.           On 23 March 1986 the mother and Mr.   Y were convicted of obtaining money by deceit, and the mother was sentenced to a term of imprisonment of three months which expired on 23 May 1986.           Following the mother's imprisonment in March 1986, the applicant, acting in person, applied to the High Court for care and control of the child to be given to him.   The applicant based his contention on his and his present wife's ability to provide the necessary continuity for the child.   He stated that they lived principally in a motor home in which they travelled extensively, both in the United Kingdom and abroad, but had two houses in which a permanent base could be provided for the child in England.   The applicant was further prepared to guarantee the child's fees and future at the boarding school which she was then attending, the fees previously having been paid by the local authority.   The applicant contended that the mother could not provide the necessary stability for the child due to her over-dependence upon alcohol and her various clashes with the law.           Judgment was delivered by the High Court on 1 May 1986.   The judge had some sympathy for the applicant's application and found him to be undoubtedly a devoted father.   The judge, however, concluded that "at the end of the day, despite the difficulties that the mother has had, this child has still got a stable background.   It is quite clear that she and her mother are very close indeed ... as I have said, despite the difficulties that the mother has had to contend with (the child) is a stable, attractive girl of whom everybody, including her present headmistress, is very fond indeed."   The judge rejected the applicant's application and on the question of renewed access did not rule out the possibility of this in the future.   The judge ordered in particular:   1.       that the applicant's summons be dismissed;   2.       that the child remain in the care and control of the mother;   3.       that the child remain under the supervision of the Cambridge         County Council;   4.       that the applicant be restrained from approaching within a         quarter of a mile of the school or home of the child and         not communicate with the school;   5.       that the social worker concerned report at six monthly         intervals upon the possibility of access between the applicant         and the child being restored; and   6.       that the applicant bring no further application with regard         to the child without the leave of the court.           The applicant appealed against the decision of the High Court to the Court of Appeal, but the appeal was rejected on 24 July 1986 and leave to appeal to the House of Lords was not granted.           In the High Court proceedings and the Court of Appeal proceedings, the applicant was not legally aided, whilst the mother received legal aid and legal representation.     COMPLAINTS           The applicant complains that he was denied a fair hearing as guaranteed by Article 6 of the Convention in the determination of his civil rights in relation to his applications for care and control and access to the child.   He states that he was not given the opportunity of cross-examining the court welfare officer in the hearing at the High Court on 1 May 1986 on matters relating to the court welfare officer's alleged molestation of the child.   He also complains of having been ordered by the High Court judge not to bring any further application with regard to the child without the leave of the court.           The applicant also contends that the grant of legal aid to the mother and his non-eligibility for legal aid prejudiced a fair hearing in relation to his applications.           The applicant further claims to be a victim of Article 3 of the Convention referring to the alleged mal-administration of the courts and their officers in allowing the court welfare officer to continue to supervise and make reports on the child after the applicant's allegations of sexual impropriety.   The applicant contends that contact with the court welfare officer subjected the applicant to inhuman or degrading treatment.           The applicant further invokes Articles 8, 10, 11, 13 and 14 of the Convention in consequence of the order of the judge on 1 May 1986. He claims the order denying care and control or access to the child was an infringement of his right to respect for private and family life, freedom of expression and freedom of association.   The applicant contends that he has been discriminated against in these proceedings and that there is no effective remedy under English law for breaches of any of the Articles he has raised.           The applicant appeals to the Commission to rectify these matters by returning the child to him and awarding compensation to the child and to him.   THE LAW   1.      The applicant first complains that he was denied a fair hearing in the proceedings relating to his applications for care and control and access to his daughter, contrary to Article 6 (Art. 6) of the Convention, which provides as far as material:   "1.    In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           The applicant contends in particular that his right to a fair hearing was prejudiced in that he was not given the opportunity to cross-examine the court welfare officer in the hearing on 1 May 1986 on matters relating to the court officer's alleged molestation of the child.   He also complains of having been ordered by the High Court judge not to bring any further application with regard to the child without the leave of the court.           The Commission considers that there is nothing to show that the applicant was hindered from cross-examining the court welfare officer on matters pertinent to the hearing.   As regards the order not to bring new applications regarding the applicant's daughter, the Commission notes that the applicant was not thereby excluded from access to a court, since the judge expressly indicated that he could ask for leave of the court in order to bring such applications.           It follows that this aspect of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains of his non-eligibility for legal aid.   The Commission observes that no right to free legal aid in civil proceedings is, as such, included among the rights and freedoms guaranteed by the Convention, although denial of legal aid could in certain circumstances amount to a failure to ensure a fair hearing under Article 6 para. 1 (Art. 6-1) of the Convention (cf.   No. 6958/75, Dec. 10.12.75, D.R. 3 p. 155).   Furthermore, the Commission has also held that the operation of financial qualifications for legal aid, and a restriction on its availability to cases with objective, fair, prospects of success is a reasonable application of limited public funds for the purpose of ensuring a fair hearing (cf.   No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).   There is no indication that the applicant was refused legal aid on any other ground.   Nor is there any indication that the absence of legal aid adversely reflected on the fairness of the court proceedings concerned.           It follows that this part of the applicant's complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant also complains that his necessary contact with the court welfare officer, after he had allegedly molested the child, amounted to inhuman or degrading treatment which the court and its officers should have prevented.   The Commission does not however consider that the treatment of which the applicant complains attains the degree of seriousness which would bring it within the sphere of application of Article 3 (Art. 3) of the Convention according to the consistent case-law of the Commission and the European Court of Human Rights.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.      The applicant also complains that his right to respect for private and family life has been infringed by the court not awarding him care and control or access to the child.           Article 8 (Art. 8) provides:   "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 according to its established case-law the right to respect for family life also extends to the right of a parent to have access to or contact with his child on the understanding that the State may not interfere with the exercise of that right otherwise than in accordance with the strict conditions set out in paragraph 2 of the Article (Art. 8-2) (cf.   No. 911/60, Dec. 10.4.61, Collection 7 p. 7; No. 7911/77 Dec. 12.12.77, D.R. 12 p. 192; and No. 6427/78, Dec. 13.3.80, D.R. 18 p. 225).           When deciding the question of care and control and access to children following the breakdown of a marriage, domestic courts may properly take into account under paragraph 2 of Article 8 (Art. 8-2) the welfare of the child and the child's own wishes.   Where a domestic court has refused to a parent a right of care and control or access to his or her child, the Commission nevertheless ultimately has a task to judge whether such refusal is justified under the provisions of paragraph (2) of Article 8 (Art. 8-2).           In the present case the applicant had, prior to the application heard on 1 May 1986, consented to the mother having care and control of the child.   The High Court had up to that point accepted his right to limited access.   The High Court on 1 May 1986 refused the applicant care and control of the child and also refused him access to the child, at least for the immediate future.   In so doing, the Court based its decision on not only the events of the past and the various reports submitted from time to time, but also on the wishes of the child.           There was evidence before the High Court and the Court of Appeal on the question as to how the child's best interest could be served and whether to grant the applicant care and control or a right of access to the child would be in the child's best interests.           In these circumstances the Commission, having regard to the facts as submitted by the applicant, finds that there is nothing to show that the courts acted otherwise than in the best interests of the child in refusing the applicant care and control and access.   Hence, the measures taken in the case were in accordance with the law and necessary in a democratic society for the protection of the health of the child under Article 8 para. 2 (Art. 8-2) of the Convention,           It follows that this aspect of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.         The applicant further complains that there have been violations of his rights under Article 10 (Art. 10) - the right to freedom of expression, Article 11 (Art. 11) - the right to freedom of association, and Article 14 (Art. 14) - the freedom from discrimination.           The Commission has also examined these complaints as they have been submitted by the applicant.   However, these complaints are wholly unsubstantiated and it follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   6.       The applicant further complains that he has been denied any effective remedy before a national authority in respect of his complaints, contrary to Article 13 (Art. 13) of the Convention.           In so far as this complaint relates to fairness of court proceedings under Article 6 (Art. 6) of the Convention and to respect for family life under Article 8 (Art. 8) of the Convention, the Commission recalls its constant case-law that Article 6 (Art. 6) of the Convention provides a more rigorous procedural guarantee than Article 13 (Art. 13) and therefore operates as a lex specialis with regard to a civil right to the exclusion of the more general provisions of Article 13 (Art. 13) of the Convention.   The Commission also refers to its above findings under Article 6 (Art. 6).           It therefore follows that no separate issue arises in respect of these complaints under Article 13 (Art. 13) of the Convention.           In respect of the applicant's remaining complaints under Article 13 (Art. 13) of the Convention, the Commission observes that this provision is only applicable when an applicant has an arguable claim that there has been a breach of other rights and freedoms contained in the Convention (cf. Eur. Court H.R., judgment of Silver and others of 25 March 1983, Series A no. 61).           The Commission has already considered that the applicant's substantive complaints under the Convention do not disclose any appearance of a violation of any of the other provisions of the Convention.   Furthermore the applicant has not made out a clear complaint of how he considers Article 13 (Art. 13) to be at issue in respect of his remaining complaints.           The Commission therefore considers that the applicant has not been shown to have an arguable claim under Article 13 (Art. 13) of the Convention.           It follows that this aspect of the applicant's complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Deputy Secretary to the Commission       Acting President of the Commission                     (J. RAYMOND)                           (J.A. FROWEIN)