CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1996

.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. 24875/94                       by Henry LOGAN                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 6 September 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 6 November 1993 by Henry LOGAN against the United Kingdom and registered on 10 August 1994 under file No. 24875/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government received      on 12 June 1995 and the observations in reply submitted by the      applicant received on 6 September 1995;   -     the parties' oral submissions at the hearing on 6 September 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1957 and resident in Denny, Stirlingshire. He is represented before the Commission by Mr. Cameron Fyfe, a solicitor practising in Glasgow. The facts as submitted by the parties may be summarised as follows.   A.    Particular circumstances of the case        The applicant was divorced from his wife K. on 30 March 1992. There were 2 children of the marriage, C. born in 1987 and G. born in 1989. In or about March 1989, pursuant to an agreement by the applicant and his wife with the Department of Social Security (DSS), the applicant began paying £40 per month. This sum was increased a number of times between 1989 and 1993, and at the date that the Child Support Act 1991 (the 1991 Act) came into force on 5 April 1993, the applicant was paying £121.33 per month.        On 24 February 1993, the applicant was granted access to the children by the Sheriff Court. Pursuant to the court order, the applicant was allowed access every second Sunday from 10.00 to 16.00h. He lives 30 miles from the children's home.        On 23 April 1993, an application was made under the 1991 Act by the applicant's former wife for a child support maintenance assessment to be made in respect of both children. She was required to do so by the Secretary of State pursuant to section 6 of the 1991 Act as she was in receipt of income support.   A maintenance enquiry form was sent to the applicant.   It was completed and signed by him on 30 April 1993 and returned to the Child Support Agency on 21 May 1993.        On 13 October 1993, a maintenance assessment was carried out and set at £56.78 per week payable from 29 April 1993, the date on which the enquiry form was sent to the applicant.   As from that date, the former agreement as to maintenance made by the applicant with the DSS under which the applicant paid £30.00 per week became unenforceable in accordance with the provisions of the Act.        On 22 November 1993, due to the applicant's failure to make regular payments, a Deduction from Earnings Order issued by the Secretary of State was sent to the applicant's employer who was obliged to deduct each week from the applicant's salary the maintenance payment due and a sum in respect of arrears that had accrued between 29 April 1993 (when the enquiry form was sent to the applicant) and 13 October 1993 (when the assessment was made). On 23 November 1993 the applicant asked for the Deductions from Earnings Order to be cancelled and this was agreed on the basis that he pay maintenance due under the assessment every two weeks as originally specified and an additional £5.00 per week towards arrears.        On 17 January 1994, the applicant was informed that the assessment had been reduced to £55.57 per week pursuant to a review requested by him and that the assessment would be backdated to 29 April 1993.   The amount due per fortnight is therefore £111.14 with a contribution for arrears, which the applicant has paid regularly.        The applicant is a school librarian employed by a local authority. He originally submitted that he received a net four weekly income of £790. He claimed that his expenses (rent, loans, insurance, utility bills etc. plus the child support payments and arrears) amount to £604.61 per month which left him with the sum of £221.49 per four weeks to pay for food, prescriptions, dental care and petrol.   He claims that the cost of exercising his right of access, which he has every second Sunday from 10.00 to 16.00h is £15 (£30 over a four week period).   He includes in the £15 the cost of the 60 mile round trip and taking his children out for the day. As a result of the increased assessment, the applicant claims that he is now only able to visit his children once per month instead of once per fortnight.   B.    Relevant domestic law and practice        Assessment of child maintenance        The Child Support Act 1991 (the Act) provides for the assessment, collection and enforcement of periodical maintenance payable by parents in respect of children not in their care. The Act was designed to improve the position of children whose parents live apart.   Research commissioned for the government white paper ("Children Come First", 1990 Cm. 1264) had indicated that 30 % of lone mothers and 3% of lone fathers received regular child maintenance and that the average payment was very low. It was considered that the burden of supporting lone parents fell largely upon the State.         The amount of child support maintenance payable by an absent parent is fixed in accordance with a formula set out in Schedule 1 to the 1991 Act, which takes into account four separate elements: the amount needed to support the child, the assessable income of the parents, the deduction rate or proportion of the assessable income which will go to the child and the protected income, which is intended to ensure that the standard of living of the absent parent is maintained at a minimum level (the amount needed for basic living expenses).        A parent with care of a child may apply to the Secretary of State for a maintenance assessment to be made. Where a parent caring for a child claims state benefits (eg. income support, family credit) he or she may be required to authorise the Secretary of State to recover child support maintenance from the absent parent (section 6).        Once a maintenance assessment is made, any prior maintenance agreement becomes unenforceable insofar as it relates to periodic maintenance payments for the children concerned (section 10 (2)).        To implement the provisions of the 1991 Act, the Child Support Agency (CSA) was established.        Review procedures        Pursuant to sections 17 and 18 of the 1991 Act, a person may request the review of a maintenance assessment by a child support officer if there has been a material change of circumstances since the assessment was made or where the assessment was made in ignorance of, or in mistake as to a material fact, or was wrong in law.        Pursuant to section 20, any person aggrieved by the decision of a child support officer on such a review   may appeal to the Child Support Appeal Tribunal. The President of the Tribunals, a lawyer of at least 10 years' standing, is also President of the Social Security Appeals Tribunals and is appointed by the Lord Chancellor.   Each Tribunal consists of a Chairman and two other persons. The Chairman is required to be a lawyer of 5 years's standing, while the other persons are drawn from a panel constituted by the President who have knowledge or experience of the area where they are to work and be representative of the persons living or working in the area.        Appeals on points of law from the Tribunal lie to a Child Support Commissioner who is a solicitor or barrister of more than 10 years standing (section 24). Leave must be granted by either the Chairman of the Tribunal which heard the case or by the Commissioner. If he finds that a decision appealed against is wrong in law, he must set it aside and either make the decision himself or send it back to the Tribunal or to a different Child Support Officer with directions as to how it is to be determined.        Appeal may be made on point of law from the Commissioner's decision to the appropriate court, namely the Court of Appeal or the Court of Session (section 25). Leave must be obtained either from the Commissioner or from the Court of Appeal or Court of Session.     COMPLAINTS   1.    The applicant complains that in determining the amount of maintenance he has to pay, the CSA has determined his "civil rights" such that he was entitled to access to an independent and impartial tribunal.   He submits that there is no redress for any individual who has been found liable to make a contribution where that contribution has been correctly calculated in accordance with the applicable provisions. He invokes Article 6 para. 1 of the Convention.   2.    The applicant complains that the level of maintenance payments has been assessed at such a high rate that he can only afford to visit his children once a month instead of once a fortnight, as he is entitled to do.   He complains that this impedes the development of his relationship with his children contrary to Article 8 of the Convention.   3.    The applicant also complains that the financial burden of the maintenance payments interferes with the practice of his religion. He has been a practising Zen buddhist for six years. The nearest priories are 120 and 200 miles away and the cost of transport is restricting his ability to participate in buddhist groups and meetings. He invokes Article 9 of the Convention.   4.    The applicant further complains that he has no effective remedy for the alleged violations of his rights under the Convention contrary to Article 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 6 November 1993 and registered on 10 August 1994.        On 17 January 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were received on 12 June 1995, after an extension of the time-limit fixed for that purpose.   The applicant's submissions in reply were received on 6 September 1995, also after an extension of the time-limit.        On 23 January 1996 the Commission granted the applicant legal aid.        On 15 May 1996 the Commission decided to invite the parties to an oral hearing.        On 27 August 1996, the applicant submitted further documentary materials.        At the hearing, which took place on 6 September 1996, the Government were represented by Ms. S.J. Dickson, Agent, Mr. D. Pannick QC,   Counsel and three advisers, Mr. K. Baublys, Ms. J. Bell and Ms. S. McCrory. The applicant, who was present, was represented by Ms.   N. Stewart, Counsel and Mr. A. Philp, Solicitor.   THE LAW   1.    The applicant complains of a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that he is unable to challenge the maintenance assessment before a court. Article 6 (Art. 6) of the Convention provides so far as relevant :        "1.    In the determination of his civil rights and obligations or      of any criminal charge against him, everyone is entitled to a      fair and public hearing within a reasonable time by an      independent and impartial tribunal established by law."        The Government submit that Article 6 (Art. 6) is inapplicable since the proceedings do not involve a determination of the applicant's "civil rights or obligations".   Rather, the Act sets out the rights and obligations of the applicant and the CSA, in assessing the amount of the maintenance payment, merely carries out calculations in accordance with the provisions of the Act and regulations adopted thereunder without being able to exercise any independent discretion.   It contends that since the CSA is not resolving a legal claim or dispute, but simply applying the power vested in it by the Act, and since the applicant does not contend that the calculation carried out by the CSA was incorrect, the application under Article 6 (Art. 6) is manifestly ill-founded.        In the alternative the Government submit that should the Commission consider that the CSA does make determinations of civil rights and obligations, the Act provides for the possibility of a fair and public hearing in respect of matters of fact and law.        The applicant submits that in assessing the level of maintenance payments, his civil rights and obligations are being determined.   He claims that the tribunals to which he does have access do not allow consideration of the merits of his claim, since they only have jurisdiction to consider whether the assessment was made correctly within the terms of the Act and regulations made thereunder.   He contends that the fact that no tribunal can take into account the individual circumstances of the case (in his case the fact that it cannot take account of where he lives and the cost of visiting the children), deprives him of the right to have the merits of his case considered before an impartial tribunal.        The Commission recalls that Article 6 para. 1 (Art. 6-1) applies only to disputes ("contestations") over rights and obligations which can be said, at least on arguable grounds to be recognised under domestic law. It does not in itself guarantee any particular content for "rights and obligations" in the substantive law of Contracting States nor does it require that there be a national court with competence to invalidate or override national law (cf. Eur. court H.R. James and others v. United Kingdom judgment of 21 February 1986, Series A no. 98, p.46, para. 81, Lithgow and others v. United Kingdom judgment of 8 July 1986, Series A no. 102, p.70 para. 192). It is also established case-law that Article 6 para. 1 (Art. 6-1) guarantees to everyone who claims that an interference with his "civil rights" is unlawful   the right to submit that claim to a tribunal satisfying the requirements of that provision (Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43 p. 20 para. 44). The claim or dispute, however, must be of a "genuine and of a serious nature" (cf. Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 14, para. 32).        As to whether there is a dispute as to any of the applicant's civil rights or obligations, the Commission notes that the applicant accepts that the maintenance assessment imposed on him by the CSA was calculated correctly under domestic legislation. It is also uncontested that there is no scope under the applicable provisions at the present time for costs of access visits to be taken into account in the assessment, which is the basis of the applicant's claims. In the circumstances, the Commission therefore considers that there cannot be said to be any dispute, or any dispute of a "genuine" or "serious nature"   as to any civil right or obligation arising in this case.        It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant contends that the amount of maintenance he is required to pay under the Act leaves him with insufficient money to enable him to maintain reasonable contact with his children in violation of Article 8 (Art. 8) of the Convention, that 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 Government deny that there has been any interference in the applicant's family life and emphasise that the CSA is intended to protect family life, maintenance payments being intended to provide for children's basic living costs, which are the responsibility of both parents and should come before the provision of less essential items of expenditure.   Even assuming an interference with the applicant's rights under Article 8 (Art. 8) of the Convention, the Government claim that such interference would be justified and proportionate: there is a pressing social need to ensure that parents fulfil their responsibilities to their children and, the CSA strikes a fair and reasonable balance between the absent parent's responsibilities for his or her children and the need for a system that produces fair and consistent results, preserves the parents' incentive to work and reduces the dependency of parents with care on income support, providing consequent savings to tax-payers.        The applicant submits that after having paid maintenance payments he is left with insufficient money to maintain reasonable contact with his children and that such contact is a fundamental right and is as essential as food and warmth and clothing.   The applicant adds that he is not seeking to expend money on outings and gifts during access periods but simply to gain regular contact with his children.   He claims that this restriction impedes the development of his relationship with his children contrary to their best interests and discloses a failure to respect that relationship.        The Commission has considered the applicant's complaints in the context of the financial obligations that are acknowledged to exist between the applicant and his children.   The Commission notes that the relevant legislation, insofar as it seeks to regulate the assessment of maintenance payments from absent parents, does not by its very nature affect family life.   Nor, in the light of the factual information supplied by the applicant regarding his income and expenses, including the cost of visiting his children every fortnight, does the Commission consider that the applicant has shown that the effect of the operation of the legislation in his case is of such a nature and degree as to disclose any lack of respect for his rights under Article 8 (Art. 8).   In the circumstances, the Commission does not therefore find it necessary to go on to consider whether, had there been an interference, it would have been justified within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.        It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant complains that the cost of the increased maintenance order restricts the practice of his religion. He invokes Article 9 (Art. 9) which provides:        "1.    Everyone has the right to freedom of thought, conscience      and religion; this right includes freedom to change his religion      or belief and freedom, either alone or in community with others      and in public or in private, to manifest his religion or belief,      in worship, teaching, practice and observance.        2.     Freedom to manifest one's religion or beliefs shall be      subject only to such limitations as are prescribed by law and are      necessary in a democratic society in the interests of public      safety, for the protection of public order, health or morals, or      for the protection of the rights and freedoms of others."        The applicant who has practised zen buddhism for a period of at least six years submits that the increased maintenance payments restrict his ability to attend centres or meeting places of buddhist worship, since the nearest priories are 120 and 200 km away from his home.      The applicant admits that it is possible for him to practise his religion without making such visits but states that it is also of the essence that he regularly spends time with the monks of his religion who are to be found in the priories.        The Commission finds that the applicant's complaints fail to disclose any effective restriction on his freedom to manifest and practise his religion of zen buddhism. Not every act which is motivated by religion or belief falls within the concept of "practice" (e.g. No. 11579/85, Dec. 7.7.86, D.R. 48 p. 253). The Commission is not persuaded on the basis of the applicant's submissions that visits to the priories can be considered as an indispensable element of the applicant's religious worship.        It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicant complains that he had no effective remedy available to him in respect of his complaints as required by Article 13 (Art. 13). That provision reads as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy      before a national authority notwithstanding that the      violation has been committed by persons acting in an      official capacity."        The Government submit that insofar as Article 13 (Art. 13) is being invoked to seek a remedy against legislation as such which is considered not to be in conformity with the Convention, the complaint is incompatible with the provisions of Article 13 (Art. 13).   Further, that since there has been no violation of Article 6 para. 1 (Art. 6-1) or Article 8 (Art. 8), the question of a breach of Article 13 (Art. 13) does not arise.        The applicant submits that, assuming Article 6 (Art. 6) is inapplicable, he has been denied an effective remedy in respect of the interference with his rights under the Convention since he is unable to complain to a court or other body which has the jurisdiction to determine his claims.        The Commission recalls that Article 13 (Art. 13) of the Convention requires a remedy in domestic law only in respect of grievances which can be regarded as "arguable" in terms of the Convention (see Eur. Court H.R., Powell and Rayner v. United Kingdom, judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).        The Commission finds that the applicant cannot be said, in light of its findings above to have an "arguable claim" of a violation of his Convention rights.        It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.         M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber