CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 octobre 1997

.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. 31316/96                       by Salome STOPFORD                       against the United Kingdom          The European Commission of Human Rights sitting in private on 20 October 1997, the following members being present:              Mr     S. TRECHSEL, President            Mrs    G.H. THUNE            Mrs    J. LIDDY            MM     E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 April 1996 by Salome STOPFORD against the United Kingdom and registered on 2 May 1996 under file No. 31316/96;        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 on      22 July 1996 and the observations in reply submitted by the      applicant on 3 October 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a citizen of South Africa and the United Kingdom born in 1947 and resident in London. She makes this application on her own behalf and on behalf of Sophiso (Phiso) Masango, a citizen of South Africa of Zulu origin born in 1986. She is represented before the Commission by Mr Alan Levy, counsel, and Mishcon de Reya, solicitors practising in London.        The facts as submitted by the parties may be summarised as follows.        Particular circumstances of the case        The applicant, who arrived in the United Kingdom in or about 1970, married an Englishman, Mr. Stopford, in 1973. They had three daughters. In 1982, the applicant and her three children returned to live in South Africa.        In 1984, the applicant first made acquaintance with Charles Mahlangu, who was working as a driver. Through him, she was introduced to Selina Masango and employed her to work in her home. Selina Masango was closely attached to and integrated in the Stopford family, caring for the applicant's daughters as nanny and acting as cook and housekeeper.        On 13 February 1986, Selina Masango gave birth to Sophiso (called Phiso), whose natural father was Charles Mahlangu. When, in June 1987, the applicant's family moved to a predominantly white community adjacent to Johannesburg, Selina Masango initially intended sending Phiso to her village 150 kilometres away in order to comply with apartheid regulations. The applicant who had already become attached to Phiso offered to take responsibility for him in such a way as would enable him to remain as a member of her household. It was implied in that arrangement that he would receive a standard of medical care and education which Selina Masango and Charles Mahlangu would be unable to give him.   It appears that while Selina Masango lived in the servant quarters closely adjacent to the applicant's house, Phiso's life was centred in the applicant's house.        Early in 1992, the applicant decided to leave South Africa due to the unsettled situation and to return to live in the United Kingdom with her family. With the agreement of Selina Masango and Charles Mahlangu, who signed a document to this effect, Phiso accompanied the applicant's family to London. The applicant considered that this was an indefinite arrangement which would endure until the completion of Phiso's education. Charles Mahlangu and Selina Masango asserted in subsequent proceedings that the arrangement was for five years precisely. It was part of the agreement that Selina Masango should be provided with the means of visiting Phiso in London or should receive visits from him.        On 16 March 1992, the applicant, her daughters and Phiso arrived in the United Kingdom. During the immigration control on arrival, the applicant stated that she intended to adopt Phiso. He was given a three month immigration pass.        On 12 May 1992, the applicant instructed solicitors concerning the problem of Phiso's immigration status and continued residence in the United Kingdom. The applicant's solicitors took steps seeking to discover Selina Masango's views as to adoption. While there was some ambivalence in early contacts, by early 1993, Selina Masango and Charles Mahlangu were taking the view that the applicant was in breach of the agreed terms for reciprocal visits for Phiso and Selina Masango and that Phiso should be returned immediately. In a letter dated 11 October 1992, the applicant wrote to Selina Masango stating that she was applying for adoption in order that Phiso could stay in the country and study and that she did not want to take him away from Selina Masango, who was his mother. Selina Masango did not reply to the letter.        On 26 January 1993, the applicant gave notice to Westminster Council of her intention to adopt Phiso. In April 1993, Simone, the applicant's eldest daughter visited South Africa with the primary purpose of locating Selina Masango, arranging an air ticket and accompanying her back to London for a visit. Simone had difficulties making contact with Charles Mahlangu and Selina Masango. When she did, Charles Mahlangu seemed supportive of the idea but was living separately from Selina Masango. Selina Masango would not agree to the plan until she had returned to discuss it with her parents in her village. Simone then lost contact with her and though she waited two extra weeks, left South Africa without further word from Selina Masango.        Between June and August 1993, Selina Masango wrote ten letters, mainly to Phiso, which appealed for his return.        On 28 July 1993, the applicant's solicitors issued an adoption application, and at the same time, as an alternative, an application for a residence order.        On 2 September 1994, Charles Mahlangu and Selina Masango went through a ceremony of civil marriage in South Africa.        On 23 September 1994, the Official Solicitor was given leave to instruct Dr. Cameron, a consultant child psychiatrist.        On 27 September 1994, solicitors acting on behalf of Charles Mahlangu and Selina Masango applied to have Phiso made a ward of court. They applied in the context of the wardship for the immediate return of Phiso to South Africa.        On 17 March 1995, the High Court gave leave to Westminster Council to instruct an expert in the field of trans-racial adoption.        Charles Mahlangu and Selina Masango arrived in the United Kingdom for the hearing of the various applications concerning Phiso. They refused the applicant's offer to stay at her family home. Contact was arranged between them and Phiso.        After a hearing, the High Court judge, Thorpe J., gave his judgment on 19 June 1995. He had heard oral evidence from the applicant, her three daughters, the trans-racial adoption expert social worker, a social worker from Westminster Council,   Dr. Cameron, Charles Mahlangu and Selina Masango, Phiso's natural parents.        Dr. Cameron provided two reports, the first dated 16 May 1995 and a second dated 15 June 1995 taking into account his contacts with the natural parents.        In his first report, Dr. Cameron found that Phiso had a loving relationship with the applicant and that he also displayed a trusting and loving attitude to his mother even though he had not seen her for three years. He stated that Phiso had spontaneously suggested that his mother come to stay with them in London which indicated that he wished the pattern of life which he had previously enjoyed in South Africa to be replicated in London, living daily with both the applicant and her family and his mother being present. Given the history of his upbringing, it was not surprising that Phiso now had "two 'psychological mothers' to both of whom he is emotionally attached". He stated that Phiso would benefit from returning to his parents' care in South Africa since he would be brought up in his own racial group and identify with the cultural patterns of that group, and since being centred psychologically within his own community of origin would give him strength as an individual. However, these gains had to be weighed against the disadvantages: these included the loss of education, being removed from a lively family group where he is the adored youngest sibling to being the lonely eldest child in a very different social setting. He expressed the view that Phiso would not benefit from a denial of meaningful contact with either family and his own wish was for an ongoing relationship with both.   He recommended dialogue between the adults with a view to continuing an agreeable compromise which allowed him to benefit from educational opportunities which were agreed for him initially but allowing use of holidays for benefitting from his own family roots.        In his second report, Dr. Cameron stated, having interviewed the parents and observed a contact visit, that Phiso was pleased to meet his natural parents who were clearly overjoyed to see their son once more. He found that Phiso's present and future interests would be promoted by confirming his natural parents' role and confirming the understanding reached in 1992 by the parties. If his home base were insensitively interrupted now then the emotional impact on the boy could be profoundly damaging. Wrenching him away from his London family where his main security was centred would be emotionally damaging and would run the risk of having long term psychological after-effects. To this end, he proposed that the natural parents enjoy liberal and meaningful contact with Phiso in the United Kingdom as a preparation for a 2-3 week visit in the summer; Selina Masango, and possibly Charles Mahlangu, should visit London in the Christmas holidays and regular communication should start between Phiso and his natural parents with the applicant's support. A review could then take place in two years by the Court, by which stage it would be hoped that sensible discussion would have facilitated Phiso enjoying generous contact visits so that he grew up feeling himself to be a significant member of his natural family. This was the proposal which was advocated in the proceedings by the Official Solicitor as representative of Phiso.        Mr. Justice Thorpe found that there was no doubt of Phiso's profound psychological attachment to his mother but that his father had been a distant and shadowy figure in his life. It seemed to him that the application for adoption had no chance of success and that the parents' application for immediate return ignored the psychological attachment of Phiso to the applicant's family and the dangerous consequences of forcefully and precipitately rupturing that contact. He had during the proceedings made it plain that it was vital that the adults in the case resume communication and move from their respective extreme positions. As a result, the applicant's counsel had withdrawn the application to adopt and the parents had agreed to visit Phiso at the applicant's home and talk directly to the applicant and her daughters. He commented on how the relationship of real love between the applicant's family and Selina Masango had withered away and changed to active distrust and animosity on the side of Selina Masango. It was in his view clear from the correspondence between the two sides that good intentions to perform the agreement reached in March 1992 were frustrated in real measure by immigration difficulties and by a convenient abandonment after the frustration of Simone's failed attempt to facilitate Selina Masango's visit in April 1993. He found:        "It is manifest from the correspondence which I have reviewed      that <the applicant> bears a heavy responsibility for the failure      to perform the essential conditions of the parents' consent,      which were designed to preserve the relationship between them and      their child and to preserve his attachment to his own people and      culture. To her credit she has not sought to deny that      responsibility. She seemed to me to be a woman of unusually      forceful personality, with an unusual capacity to achieve against      the odds. That conclusion, however, demonstrates how unequal is      the bargaining power as between herself and Selina and Charles...        Dr. Cameron, the only witness called by the Official Solicitor,      gave a particularly impressive exposition of his findings and      conclusions over the course of cross-examination that took the      best part of the day. I have no doubt at all of the profundity      and wisdom of his findings and conclusions.        Finally, there is the evidence of the parents. It is very      difficult for me to assess them because they gave evidence      through an interpreter and because they come from a race, a      culture and a tradition which I am not qualified to understand      or to put in due perspective... I, however, have reached the      conclusion that the evidence of both parents is quite unreliable      on a number of important issues. That is not to say that they are      untruthful people. It is simply to say that their recall has      become increasingly subjective as the pressure of this litigation      has intensified...        The submission of the local authority, adopted by the parents,      is that there is a principle to be extracted from the case of In      re K.D. [1988] AC 806, in particular the citation from the speech      of Lord Templemean at page 812:              'The best person to bring up a child is the natural parent.            It matters not whether the parent is wise or foolish, rich            or poor, educated or illiterate, provided the child's moral            and physical health are not endangered.'        ... It begs the question: who is the natural parent, when the      issue is to determine who should have the daily care of a child      when one applicant is the biological mother and the other the      psychological parent... This case is further complicated by the      fact that this boy has two psychological parents and they are      both psychological mothers. ... The only guiding principle is      that that overrides all cases affecting children..., namely that      the welfare of the child is paramount. It is the function of the      judge to choose the solution which promotes welfare, or more      relevantly, is likely to prove the least damaging to the child      in its intellectual, physical, emotional and psychological      development..."        The judge referred to the three possibilities, confirmation of his placement with the applicant, immediate return to South Africa and continuance of the earlier understanding with proper implementation and open communication between the parties. He agreed with Dr. Cameron that the third was in the best interests of Phiso but was concerned with avoiding uncertainty as to the middle and longterm future of Phiso. With reference to the matter coming back for review in two years' time, he stated:        "...this court has to have regard to the wishes and feelings of      the child, and if, in two years' time, there is a continuing      offer of London education from <the applicant> supported by      fervently expressed wishes and feelings from Phiso, that      represents a formidable combination. But any such presentation      would be very stringently scrutinised to ensure that the stated      wishes and feelings were not the product of both influence and      isolation, and that <the applicant's> attachment was not      something that was impeding Phiso from development which must be,      in the last resort and profoundly, Zulu development, and not      Afrikaans or English development.        So I think there must be a firm recognition that Phiso returns      to South Africa. The only question is when and how that can be      achieved... it is in Phiso's interests that there should be a      clear ruling from this court that, whilst return is impossible      in the immediate future, and while the arrangement that was      negotiated in March 1992 must be given primacy, at its conclusion      the presumption is return, unless there is at that stage a      consensual extension to represent the restoration of co-operation      between the adults and a renewed capacity to put Phiso's welfare      first and adult interests and needs a firm second.        A final consideration that bears upon the future and the      timescale of return is the parents' need to prove themselves in      light of the rejection of their case that they have been a      settled married couple throughout the history. The reality is      that they have only come together since, and perhaps as a result      of this case. Their present house seems inadequate. Their      presentation of the future is dependent on the generosity of      others and their ability to earn consistently and achieve      material targets that have opened to them in the new South      Africa. In Phiso's interests this court should not take too much      on trust. The next two years will give the parents the chance to      turn their proposals into reality."        The terms of his order, signed on 10 July 1995, were determined by agreement with counsel for all parties. It provided for monthly telephone contact, and one paid air ticket per year to be provided by the applicant to Selina Masango and any further contact as agreed. The matter was to be reviewed in two years time with a view to establishing the date and circumstances of Phiso's permanent return to South Africa.        The case went on appeal before the Court of Appeal which delivered judgment on 5 March 1996. The Court of Appeal ordered that Phiso be placed in the care and control of his parents who were granted leave to remove him permanently from the jurisdiction. It ordered that there be reasonable contact as agreed between the parties, including staying contact twice per annum.        Lord Justice Neill considered that there was a strong supposition that it was in the interests of Phiso that he be brought up with his natural parents. He commented that the adult parties had not been working towards the re-introduction of Phiso to his family and country as envisaged by the judge's plan. Having regard to the evidence of Dr. Cameron that the change would be deeply traumatic, he had, after anxious consideration, concluded that any further delay in return could not be in the interests of Phiso who had the right to be reunited with his Zulu parents and with his extended family in South Africa.        Lord Justice Ward commented that it was "a sorely difficult case" and that the Court of Appeal had to be chary about interfering with such a delicate exercise of discretion   made by a judge as experienced and sensitive as in this case. However he differed from the judge's approach to the law which he found indicated an established line of authority as to the relative weights of competing claims between natural and psychological parents, the strong supposition being that it is in the interests of the child to be brought up by its natural parents. He considered that with hindsight and fresh evidence before them it was clear that trust and harmony between the adult parties had not been restored and there had been no harmonious dialogue, indeed very little dialogue. He referred to the applicant's application to be released from her obligation to provide for two trips to South Africa. There was, in his view, no hope of repairing the breach between the families.   He found that the evidence before the judge disclosed the harsh fact that the applicant had deceived the parents and that she had always known that she did not have the mother's consent to an adoption. In the language of child abduction, this was a wrongful removal, or at least it became so by 4 November 1992 when the mother called for Phiso's return to South Africa. Since Dr. Cameron's intermediate position was no longer viable, he concluded that delaying further would only cause further harm. He stated further:        "I am under no illusions whatever about the harm that the return      to South Africa will cause. It is not just the uncertainty about      the stability of his parents' marriage and their relationship nor      about their housing conditions nor economic security nor personal      safety. He will leave the comforts of Maida Vale for the      comparative discomfort of Brakpan. I am sure he will cope with      all that. The real harm is spelled out by Dr. Cameron ... in the      following extracts from his evidence:              If you take him away now from the <applicant's> family            against his will, then the risk is that he will go downhill            emotionally, he will go downhill psychologically, he will            pine for the <applicant> and <her girls>, he will get            grumpy and disagreeable, he will not quickly grasp Ndelele            and Afrikaans, he will be a bit of an outsider with the            group when he gets there and everything may go horrible            wrong...              To remove him in the middle of a turmoil of disagreement            would be very profoundly damaging, to such an extent that            the boy might never recover his poise and psychological            well-being and confidence. That is what worries me!"        He was however in agreement with the judge that the boy's development must be, in the last resort and profoundly, Zulu, which input he would not receive in London where there was no prospect of meaningful contact with his natural family. He concluded that the supposition in favour of return was not outweighed by the other relevant factors.        On 26 April 1996, the House of Lords refused the applicant leave to appeal against the decision of the Court of Appeal.        On 3 May 1996, the Court of Appeal refused an application to stay its order pending application to the European Commission of Human Rights. Consequently, Phiso was handed over to his mother and, in the beginning of May 1996 following an initial postponement of the departure by one day caused by Phiso's distress, left with her for South Africa.        On 5 December 1996, Phiso returned to the United Kingdom with the consent of his natural parents. As from 6 December 1996 onwards Phiso has been living with the applicant and her family.        By decision of 25 February 1997, following leave for appeal granted to the Official Solicitor, the High Court ordered, inter alia, the discharge of the orders of 5 March 1996, i.e. that Phiso be placed in the care and control of his parents who were granted leave to remove him permanently from the jurisdiction and that there be reasonable contact as agreed between the parties including staying contact twice per annum. The High Court further ordered that Phiso remain a ward of the court, granted the applicant a residence order in respect of Phiso and outlined the contact and visiting arrangements between Phiso and his natural parents.     COMPLAINTS   In respect of Phiso        The applicant complains that the removal of Phiso from her care and returning him to South Africa constitutes treatment in violation of Article 3 of the Convention and discloses a lack of respect for his rights under Article 8 of the Convention. It is also alleged that Phiso did not receive a fair hearing as required by Article 6 para. 1 of the Convention.   In respect of the applicant        The applicant complains under Article 6 para. 1 that she did not receive a fair hearing in the proceedings before the domestic courts and under Article 8 that there was a failure to respect her family life. She also invokes Article 13 of the Convention contending that she had no effective remedy for her complaints.        She refers to the following factors:        -      a failure to give due weight to the wishes and feelings of            Phiso and the Official Solicitor who represented him;        -      a failure to give proper weight to the fact that she was            the psychological parent of Phiso, with a close bond going            back throughout his whole life and with whom Phiso had a            deep emotional attachment;        -      a lack of regard to the uncontradicted evidence of the            expert child psychiatrist as to the significant damage that            Phiso would suffer if uprooted immediately.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 30 April 1996 and registered on 2 May 1996. Also on 2 May 1996, the President of the Commission decided to indicate to the Government, in accordance with Rule 36 of the Commission's Rules of Procedure, that it was desirable to suspend the measure returning Sophiso Masango until the Commission had had an opportunity to examine the application.        On 24 May 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 22 July 1996.   The applicant replied on 3 October 1996, after an extension of the time-limit fixed for this purpose.        On 13 September 1996 the Commission granted the applicant legal aid.        By letter of 24 March 1997, the Government informed the Commission of the decision of 25 February 1997 of the High Court and submitted that, in these circumstances, the application had become substantially without object.        The applicant's reaction to the Government's letter of 24 March 1997 was received on 23 April 1997.        On 8 September 1997, the applicant submitted additional information to the Commission on Phiso's current situation.     THE LAW   1.    The applicant complains both herself and on behalf of Phiso that his removal from the applicant's care and his return to South Africa disclose a lack of respect for their rights under Article 8 (Art. 8) of the Convention.        Article 8 (Art. 8) of the Convention 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 Government submit in the first place that the applicant cannot make complaints on behalf of Phiso under the Convention. Given the existence of a real conflict of interest between them related to the question whether Phiso should be left in the care and control of the applicant or of his natural parents, the applicant cannot be regarded as a proper person to represent the interests of Phiso.        The applicant submits that Article 25 (Art. 25) of the Convention is to be applied with flexibility in the case of children applicants so as to ensure their effective representation and that, in the present case, no one but the applicant is available to represent Phiso before the Commission. His natural parents will obviously not do so nor is representation available through the Official Solicitor on grounds of his being part of the Government.        The Commission notes that at the time of the introduction of the application on 30 April 1996, the applicant did not hold custody or parental rights over Phiso. Moreover, by judgment of 5 March 1996, the Court of Appeal ordered that Phiso be placed in the care and control of his parents who were granted leave to remove him permanently from the jurisdiction.        The Commission further notes that the applicant has failed to demonstrate that she is otherwise entitled to represent Phiso before the Commission with respect to this application and has not substantiated that Phiso or his legal representative supports the proceedings before the Commission.        In these circumstances, the question arises whether the applicant is capable of introducing an application to the Commission on behalf of Phiso.        However, the Commission does not find it necessary to determine this issue, as the application is in any event inadmissible for the following reasons.        As to the substance, the Government submit that the ties between the applicant and Phiso do not constitute family life within the meaning of Article 8 (Art. 8) of the Convention as Phiso's natural parents were seeking his return and, had they known that the applicant intended to keep him in England, they would not have allowed Phiso to leave South Africa.        Even on the assumption that the ties between the applicant and Phiso would fall within the scope of Article 8 para. 1 (Art. 8-1) of the Convention, the Government submit that the interference at issue was justified under the terms of paragraph 2 of this provision as necessary in a democratic society for the protection of Phiso's rights and those of his natural parents. After having balanced the various interests involved, in which Phiso's views and interests were held to be decisive, and acknowledging that any solution would involve damage for Phiso, it was found that Phiso's return to his natural parents would cause him least damage. The Government consider that this decision was very far from amounting to arbitrary interference with the rights at issue.        The applicant submits that Phiso's ties with the applicant and her children far outweigh the actual links with the natural parents, and his long standing ties with the applicant and her children fall within the scope of the rights guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention in that these rights include the right to establish and develop relationships. Given the medical evidence of the damaging effects of Phiso's forcible removal, against his own will, from his de facto family, the applicant submits that the interference at issue is to be considered as having a disproportionate and predicted adverse impact upon Phiso and thus is not "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.        The Commission notes that Phiso has returned to the United Kingdom on 5 December 1996 and has been living with the applicant and her family as from his return. The Commission further notes that, on 25 February 1997, the High Court ordered the issuance of a residence permit to Phiso, thus allowing him to remain in the United Kingdom with the applicant and her family.        The Commission recalls that the question whether an applicant can claim to be a victim of a violation of the Convention is relevant at all stages of the proceedings and that someone who has obtained redress at the domestic level for the alleged violations the Convention cannot claim to be a victim of those violations (cf. No. 17926/91, Dec. 28.6.93, D.R. 75, p. 167).        As on 25 February 1997 Phiso has been given the right to take up residence in the United Kingdom with the applicant, the Commission considers that the applicant and Phiso can no longer claim to be victims within the meaning of Article 25 (Art. 25) of the Convention as regards their complaints under Article 8 (Art. 8) 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.   2.    The applicant further complains on behalf of Phiso that his removal from her care and his return to South Africa constituted treatment contrary to Article 3 (Art. 3) of the Convention.        Article 3 (Art. 3) of the Convention reads:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Government submit that the damage to Phiso did not attain the level of severity necessary to establish a breach of Article 3 (Art. 3) of the Convention, having regard to the nature of any damage and the context in which it was inflicted, namely where a court has anxiously and carefully considered the risk of damage involved in each alternative decision and has opted for the decision which in its opinion was least damaging to the child.        The applicant submits that the facts of the case disclose a clear breach of Article 3 (Art. 3) of the Convention. The suffering and humiliation Phiso endured was not only predicted by the sole and unchallenged expert medical opinion, but was also graphically borne out by events prior to his forcible removal, in particular his extreme distress causing a postponement of his removal and his subsequent treatment.        The Commission considers in the first place that Phiso's admission to the United Kingdom does not deprive him of the status of "victim" within the meaning of Article 25 (Art. 25) of the Convention in respect of the complaint under Article 3 (Art. 3) of the Convention, as this complaint is not only based on the decision to entrust him to his natural parents, as such, but also on the strain and distress the implementation of this decision caused him.        As to the substance of the complaint, the Commission recalls the general principles determined by the Court as regards Article 3 (Art. 3) of the Convention in respect of a removal by a Contracting State of a non-national (Eur. Court HR, Nsona v. the Netherlands judgment of 28 November 1996, Reports 1996-V, No. 23, para. 92).        Given that Phiso is not a national of the United Kingdom and that he has no formal family ties with the applicant and her family, the Commission considers that the United Kingdom was in principle entitled to refuse Phiso permission to take up permanent residence in the United Kingdom.        The Commission further considers that the situation at issue is exceptional and any decision taken by the judicial authorities in Phiso's case would inevitably entail a certain degree of hardship to the parties involved.        The Commission notes that, before his departure from South Africa, Phiso had always lived with the applicant and her family in the direct vicinity of his natural parents. He left for the United Kingdom with the applicant and her family on the understanding that there would be regular contacts between him and his natural family, an understanding which, however, does not appear to have been implemented.        The Commission further notes that the decision at issue was taken after judicial proceedings in which the various interests at stake were carefully balanced against each other and in which Phiso's interests appear to have been the central point of attention. On the basis of this decision, Phiso was to be reunited with his natural parents in South Africa, of which he is a national and where he has resided for a major part of his life.        In these circumstances, the Commission accepts that this decision and the practical implementation thereof must have caused this young child considerable emotional strain and distress. However, it cannot find that the decision and treatment of Phiso was of such a nature that it would warrant a finding that he has been a victim of "inhuman or degrading treatment" within the meaning of Article 3 (Art. 3) of the Convention inflicted by the authorities of the United Kingdom.        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.   3.    The applicant further complains that she and Phiso did not receive a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention in the proceedings which resulted in the decision of 5 March 1996 of the Court of Appeal.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair ... hearing ... by a ...      tribunal..."        The Commission notes that the decision which resulted from the proceedings complained of has been set aside by the High Court in its decision of 25 February 1997.        In these circumstances, the Commission considers that the applicant and Phiso can no longer claim to be victims within the meaning of Article 25 (Art. 25) of the Convention as regards this part of the application.        Even assuming that the applicant and Phiso could still be considered as victims under Article 25 (Art. 25) of the Convention, the Commission notes that the decision of 5 March 1996 was taken after adversarial proceedings in which all parties were represented by counsel and were given ample opportunity to state their case and to submit whatever they found relevant for the outcome of the proceedings.        In these circumstances, the Commission finds no indication that these proceedings fell short of the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this complaint is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicant finally complains that she had no effective remedy within the meaning of Article 13 (Art. 13) of the Convention as regards her complaints under the Convention.        Article 13 (Art. 13) provides 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 Commission considers that, having regard to its above findings as regards the complaint under Article 6 para. 1 (Art. 6-1) of the Convention, it is unnecessary to examine the complaint under Article 13 (Art. 13) of the Convention since the requirements of the latter provision are less strict and are here absorbed by those of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this complaint must also be rejected under Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.          For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.           M. de SALVIA                         S. TRECHSEL           Secretary                           President       to the Commission                    of the Commission