CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1995

.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 OF                         Application No. 24604/94                       by R.S.                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 6 September 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC              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 16 September 1993 by R.S. against the United Kingdom and registered on 13 July 1994 under file No. 24604/94;        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 residing in Liverpool and he was born in 1951. The facts as submitted by the applicant, and as may be deduced from the documents, may be summarised as follows.        In 1983 the applicant began a relationship with PC and they co- habited until July 1992. On 17 April 1989 PC had a daughter while the couple were living in Wales and the applicant is the father of the child. The couple moved frequently (in order to avoid the attention of social services) and eventually settled in Ireland.        In July 1992 the applicant left and took the child to England. It was later accepted by the courts that the child was taken without PC's consent. The applicant and the child were subsequently found living in accommodation for the homeless in London. On 7 August 1992 the Wirral Borough Family Proceedings Court made a residence order (pursuant to section 8 of the Children Act 1989 - "the 1989 Act") on an interim and ex parte basis in favour of PC. With the assistance of the police, PC subsequently recovered the child in August 1992 from the applicant. The child has lived with PC in the United Kingdom, in her maternal grandparents house, since that date.        On 1 October 1992 the Family Proceedings Court requested the local authority to provide a full report (pursuant to section 37 of the 1989 Act) and appointed a guardian ad litem. In addition and in light of some concerns about PC's mental health, she was assessed in October 1992 by two approved social workers who concluded that no action was required under the Mental Health legislation. A social work report dated 20 November 1992 stated that the local authority did not wish to apply for a care order and another dated 15 January 1993 commented on the child's good progress.        Between October 1992 and February 1993 the applicant had two access visits which were arranged by the guardian ad litem who reported that these visits were successful and that the child was relaxed in the applicant's company. On the 23 February 1993 the report of the guardian ad litem was finalised.        On 3 and 4 March the Magistrates' Court heard the parties in relation to the interim residence order and an application of the applicant for a residence order. The court had, inter alia, two reports before it from consultant psychiatrists. The first referred to PC's treatment with anti-depressants and tranquilisers for a stress-induced illness and to her subsequent discharge from hospital in January 1993. The second confirmed that the applicant showed no signs of mental illness or psychiatric disorder and that there were no objections from a psychiatric point of view to the child living with the applicant. The report from the guardian ad litem concluded that it was not in the child's best interests to be removed from PC, that it was vital that contact between the applicant and the child be re-established as soon as possible and that it was clear from the two periods of access had that the child had a strong affection for the applicant.        The court, in agreeing with the local authority and the guardian ad litem, found that there was no need to make a care or supervision order in favour of the local authority but made a residence order in favour of PC and a parental responsibility order in favour of the applicant. The court ordered that the applicant was to have access once a week for two hours at a Family Centre until a different arrangement was agreed between the parties with the help of a social worker who would be fulfilling a family assistance order for six months.        The family assistance officer was appointed on 12 May 1993 and unsupervised access visits in the Family Centre took place between 10 March and 15 July 1993. On 12 May 1993 the applicant, who had been unable to agree on any additional access visits with PC, applied for extended access.        On 1 July 1993 a directions hearing before the Magistrates' Court was adjourned until 15 July 1993 pending the completion of a welfare report by the family assistance officer. In July 1993 the family assistance officer began a comprehensive three month assessment of the family. PC agreed to the assessment but the applicant did not.        On 15 July 1993 the directions hearing was again adjourned until 12 August 1993. The date for the full hearing was fixed by the court for October 1993 and the location for the access visits was changed to the local authorities offices. On 6 August 1993 PC applied for an order discharging the access orders made by the court in March 1993.        However, in August 1993 the existing access arrangements were suspended by the local authority, the applicant having indicated orally and in writing that he had no intention of adhering to the court's orders as to access or working in partnership with the local authority.        On 19 and 20 August 1993 the Magistrates' Court considered PC's application and a request for directions from the local authority (in light of the suspension of the access visits). The court ordered one access period of two hours per week at a place and time to be specified by the local authority and the completion of the family assessment within six weeks.        PC gave her consent to the consequent programme of assessment (to include unsupervised access) but the applicant would not. On 1 September 1993 the applicant turned up for a pre-arranged unsupervised access visit, took the child without speaking to the social workers, brought her to a place just at the back of the child's grandparent's home (where PC resided) and attempted to return the child to her grandparents' home rather than to the local authority offices. The child was reported to be distressed during this visit and her behaviour was poor for the following days. On 8 September 1993 further access visits were suspended because the applicant would not agree to the assessment plan. On 13 September 1993 another emergency directions hearing resulted in the reiteration of the access orders given in August 1993. The applicant subsequently again confirmed that he was not willing to comply with those access arrangements unless the local authority was excluded and did not speak to the child. He did not attend for further access visits.        The family assessment officer finalised his report on 30 September 1993 and it stated that the applicant's behaviour throughout the proceedings was extremely difficult and unreasonable, that the applicant appeared intent on prolonging the power struggle between PC and himself, that he was using the child care proceedings for achieving this and that he had used the access visit on 1 September 1993 in order to taunt PC giving no consideration to the effect of his actions on the child. He referred to the applicant's consistent failure to cooperate with the access arrangements, to his attempts to undermine PC's relationship with the child and concluded that these issues combined with the applicant's volatile and unpredictable personality left him with concern, particularly regarding the child's future opportunity to develop a sense of security and stability.        On 20 October 1993, after a hearing, the Magistrates' Court ordered that the applicant have no further access to the child. The court stated that the "paramount consideration" was the welfare of the child and that the court had approached the issue from the assumption that the child's needs were such that the applicant should have access unless there were cogent reasons against this.        The court went on to find as follows. While the child's age limited her ability to express her wishes she appeared content living with PC, happy to see the applicant and would choose to remain in contact with him. Her current environment was stable and any increased access would be unsettling. PC was capable of meeting the majority of the child's needs and had worked hard at providing a stable environment for the child. However, ceasing access would end the distress caused to the child by the applicant's use of the child in his attempts to have her live with him. The applicant was obsessed with the issue of access, was unable to accept anyone's views but his own and his insistence on his own views had affected his judgment leading him to place his own needs ahead of those of the child. The court also referred to the possibility that the applicant might abduct the child again. As to other access options, the applicant's recent behaviour indicated that such options would be doomed to failure or were likely to be abused by him. In conclusion the court stated that:        "unless there is a considerable change in <the applicant's>      attitude he is totally incapable, for the time being, of meeting      <the child's> needs and that <the child's> emotional welfare and      current stability would be at risk if contact were to continue."        The applicant dismissed his legal representatives during the hearing before the Magistrates' Court and again on 8 December 1993 during a another court hearing though not, according to the High Court, before his counsel had settled his notice of appeal to the High Court.        The High Court noted in its judgment dated 2 February 1994 that the essential thrust of the applicant's appeal was that the Magistrates' Court was wrong. The High Court found that there was evidence upon which the Magistrates' Court could come to a conclusion that there were cogent reasons to bring the access to an end and that the applicant had not demonstrated that the Magistrates' Court's decision was wrong.        The High Court noted that the Magistrates' Court had not "shut the door" forever on access and that it was open to the applicant, if he was prepared to approach the question of access in a sensible cooperative spirit as opposed to an obsessively disruptive spirit, to seek to renew access. However, the High Court noted in this respect that the applicant would have to demonstrate to a court that he had changed and was genuinely willing to cooperate in assessment rather than abuse and insult those seeking to carry out such an assessment.   COMPLAINTS        The applicant mainly complains about being deprived of access to his child in violation of his right to respect for his family life. He makes many explanatory submissions in this respect essentially to the effect that the procedures followed (by the local authority, the police and the courts) were unlawful and unfair, that the decisions of the courts on access were unjustified and wrong in light of the evidence submitted and not in the child's interests and that there was unacceptable delay in the proceedings and in arranging access visits.        He also complains about a consequent violation of his rights to freedom of thought, conscience, religion and expression.   He further complains that he has also been consequently denied the right to ensure that the education of his child is in conformity with his own philosophical convictions in violation of the Convention. In addition, he complains about a violation of his right to liberty because he did not fulfil a contractual obligation and of intrusions into his private life and correspondence.   THE LAW   1.    The applicant mainly complains of being deprived of access to his child in violation to his right to respect for his family life. The Commission finds it appropriate to consider this complaint under Article 8 (Art. 8) of the Convention, the relevant parts of which provide as follows:        "1. Everyone has the right to respect for his ... 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 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 finds in accordance with its established case-law that the decision refusing the applicant access constituted an interference with his right to respect for his family life as guaranteed in Article 8 para. 1 (Art. 8-1) of the Convention (see eg. Eur. Court H.R., Eriksson judgment of 22 June 1989, Series A no. 156, p. 27, 59).        The Commission has consequently examined whether this interference is justified under Article 8 para. 2 (Art. 8-2) of the Convention, namely, whether it is "in accordance with the law", pursues one or more of the legitimate aims set out in Article 8 para. 2 (Art. 8-2) and whether it is "necessary in a democratic society" for one or more of those reasons.        The Commission recalls that access by the applicant to his child was refused by the Magistrates' Court and that that decision was confirmed on appeal by the High Court in the context of the exercise of those courts' jurisdiction under the Children Act 1989. The decision was taken on the basis of that court's assessment that further access would be detrimental to the child. The Commission notes that the High Court, having before it arguments as to the lawfulness of the actions of the local authority, did not find that such actions were unlawful. The Commission also notes that the police, in removing the child from the applicant, acted in pursuance of a court order. The Commission accordingly finds that the decision was taken "in accordance with law" and pursued the legitimate aims of protecting the child's health and rights.        As to whether the measure was necessary within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention, the case-law of the Convention organs establishes that the notion of necessity implies that the interference corresponds to a pressing social need and that it is proportionate to the aim pursued. Furthermore, in determining whether an interference is necessary, the Convention organs will take into account that a margin of appreciation is left to the Contracting States who are in principle in a better position to make an initial assessment as to the necessity of given measure (see eg. Eur. Court H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 27, para. 59).        When determining whether or not the decision refusing access was necessary, the Commission observes that it is not its task to take the place of the competent national courts and make a fresh examination of all the facts and evidence. The Commission's task is to examine whether the reasons adduced to justify the interference at issue are "relevant and sufficient" (see eg. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, p. 32, para. 68).        The Commission recalls that the decision of the Magistrates' Court, which was confirmed on appeal by the High Court, to end the applicant's access was made in light of that court's findings as to the best interests of the child. In particular, the court had regard to the applicant's attitude and behaviour, his refusal to comply with orders of the court, the possibility that the applicant might abduct the child again, the applicant's use of the child and his disregarding the child's welfare in order to achieve access and the probable reduction in distress to the child if access ceased. The Commission further notes that prior to reaching its decision the court considered, but in light of the applicant's behaviour felt bound to dismiss, other possible access options. Finally, it is noted, as it was by the High Court, that the Magistrates' Court left open some possibility of the applicant seeking to renew access should he be prepared to renew access in "a sensible cooperative spirit". The Commission is therefore satisfied that the decision in relation to access was not arbitrary or unreasonable and was supported by "relevant and sufficient reasons".        As regards the procedural requirements implied in Article 8 (Art. 8) of the Convention to ensure effective respect for family life (see eg. Eur. Court H.R., H. v. UK judgment of 8 July 1987, Series A no. 120, pp. 27-28 and 59 paras. 87-90 and W. v. UK judgment, loc. cit., pp. 28-29, pp. 63-65), the Commission notes that while the applicant represented himself at the appeal hearing, he was represented initially in the proceedings by solicitor and counsel but he discharged his legal representatives during the hearing in March 1993 in the Magistrates' Court and again after he had lodged his appeal to the High Court. In addition, having considered the relevant submissions of the applicant, the Commission does not find that the procedures employed by the local authority (including in arranging access visits) and by the police were excessive, unfair or showed a lack of respect for the applicant's family life.        Furthermore, the Commission is satisfied that the applicant was given the possibility of putting forward any views which in his opinion would be decisive for the outcome of the case. The Commission also considers that the length of the overall proceedings, being approximately 19 months, was not unreasonable and it does not appear that it led to a de facto determination of the issues by the mere effluxion of time or deprived the applicant of a decision upon the merits of the case (further considered below). The Commission therefore finds that the procedural requirements implicit in Article 8 (Art. 8) of the Convention were complied with and that the applicant was involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests.        The Commission therefore concludes, bearing in mind the margin of appreciation accorded to the domestic authorities, that in the circumstances of the present case the interference was justified as being "necessary in a democratic society" for the protection of the health and rights of the children. Consequently, this part 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 about the decisions taken by the courts, about the procedures adopted by the courts and about delay during the proceedings. The Commission has considered these complaints of the applicant under Article 6 para. 1 (Art. 6-1) of the Convention, the relevant parts of which provide as follows:        "1.    In the determination of his civil rights ..., everyone is      entitled to a fair and public hearing within a reasonable time      by an independent and impartial tribunal established by law..."   (a)   Insofar as the applicant complains that the decisions taken by the courts were wrong and unjustified in light of the evidence submitted, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers, on this point, to its constant case- law (see eg. No. 458/59, X v Belgium, Dec. 29.3.60, Yearbook 3 pp.222, 236; No. 5258/71, X v Sweden, Dec. 8.2.73, Collection 43 pp.71, 77; No. 7987/77, X v Austria, Dec. 13.12.79, D.R. 18 pp. 31, 45).        In particular, the Commission recalls that as regards the courts assessment of the case, it is not for the Commission to re-assess the factual or legal elements of the case before the domestic courts, given that the decisions taken had a basis in law and were, as found above, based on relevant and sufficient reasons (see eg. Eur. Court H.R., Barbera, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 68).   (b)   The applicant also makes submissions to the effect that the procedures before the courts were not fair or equitable in that, inter alia, he had to make his submissions from behind the barristers bench (after he discharged his representatives), he was treated with bias and prejudice by the court and he was overly constrained by the judges when giving evidence and cross-examining. The Commission has considered all of the submissions of the applicant in this respect and does not find that the applicant has substantiated any procedural unfairness in the manner in which the proceedings were conducted.   (c)   As regards the applicant's complaint about delay in the proceedings, the Commission recalls that the proceedings commenced in August 1992 and terminated on 2 February 1994, a period of approximately 19 months.        According to the constant case-law of the Convention organs, the reasonableness of the delay in civil proceedings must be considered with regard to the circumstances of the particular case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case and what was at stake in the litigation for the applicant (see eg. Eur. Court H.R. H. v. UK judgment of 8 July 1987, loc. cit. p. 59, para. 87- 71). In addition, it is recalled that special diligence is required in cases relating to a person's civil status and capacity (Eur. Court H.R., Maciariello judgment of 27 February 1992, Series A no. 230-A, p. 10, para. 18).        In the present case, while the subject-matter of the proceedings - access to a child - was not particularly complex, the Commission has had regard to the sensitive nature of the decision-making process in this type of case which frequently, as in this case, require the compilation of expert reports based on observation over a period of time. It recalls that in the present case reports were filed in court by the guardian ad litem, the family assessment officer, psychiatric consultants and social workers.        The Commission does not find that the conduct of the courts or of the local authority led to any significant or unreasonable delay in the proceedings and considers that the applicant's lack of cooperation with the local authority led to some difficulty in completing social work investigations and reports and necessitated the holding of further directions hearings, which factors contributed to the overall length of the proceedings.        The Commission has also had careful regard to the importance of what was at stake for the applicant. The proceedings were decisive for his future relationship with his child and in a case of this kind there is a duty to exercise exceptional diligence in view of the risk that the lapse of time may result in the de facto determination of the matter before the court. There is, however, also a duty to ensure that all the evidence which may be needed for the court to make a decision of such importance to the applicant is collected and put before the court. In the present case, the Commission is satisfied that the matter was determined with the benefit of the necessary material and on the merits of the case.        Consequently, the Commission finds, having weighed all the relevant circumstances that the proceedings, which involved two instances, did not exceed a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission concludes that the applicant was not in the circumstances of the case deprived of a fair hearing within a reasonable time the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. 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.   3.    The applicant further complains about an interference with his private life and that he has been denied the right to freedom of thought, conscience, religion and to ensure that the education of his child is in conformity with his own philosophical convictions as a result of the access proceedings and the decisions on access. He submits, inter alia, in this respect that during the proceedings and as a result of the final order as to access, he was and is prevented from contributing to, or continuing with, his child's religious, educational and general up-bringing. He further submits that the courts would not allow him to maintain his own views as to the best interests of the child and, because he would not change those views or comply with the courts' view in this respect, he lost access to his child. The Commission has examined the submissions of the applicant in this respect and considers that these complaints do not give rise to any issue separate to those considered above in the context of Article 8 (Art. 8) of the Convention.        As regards the applicant's complaint of a violation of his right to liberty, the Commission recalls that the word "liberty" in Article 5 (Art. 5) of the Convention means a freedom from arrest and detention (see, for example, No. 7050/75, Dec. 12.10.78, D.R. 19 p. 5). However, the applicant complains in this respect that he was obligated to comply with contractual terms, which obligation does not constitute a deprivation of liberty within the meaning of Article 5 (Art. 5) of the Convention. The Commission also considers that the applicant has not substantiated his complaint about an interference with his correspondence.        The Commission therefore finds these complaints of the applicant 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 First Chamber          President of the First Chamber        (M. F. BUQUICCHIO)                      (C. L. ROZAKIS)