CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 janvier 1998

.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. 28983/95                     by Alaa AL-BANAA                     against The United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 15 January 1998, the following members being present:               MM    M.P. PELLONPÄÄ, President                N. BRATZA                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS           Mrs   J. LIDDY           MM    L. LOUCAIDES                B. MARXER                B. CONFORTI                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ           Mrs   M. HION           Mr    R. NICOLINI               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 1 May 1995 by Alaa AL-BANAA against The United Kingdom and registered on 26 October 1995 under file No. 28983/95;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      25 April 1997 and the observations in reply submitted by the      applicant on 21 August 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British civil engineer born in 1956 in Baghdad.   He resides in Bristol.   A.    Particular circumstances of the case        The facts of the case as submitted by the parties may be summarised as follows.        The applicant and J.M.L. married in March 1985. On 15 October 1986 J.M.L. filed a divorce petition.        On 22 January 1987 a daughter, L., was born.   Immediately after the birth, J.M.L. denied the applicant any contact with the child.        On 29 January 1987 the provisional divorce (decree nisi) was pronounced, custody of the child being given to the mother.        It appears that a dispute over the paternity of the child arose. According to the applicant, this dispute was resolved on 24 November 1987.   The applicant never raised the issue of paternity again.        On 25 March 1988 the applicant made an application for access to his child.        On 17 August 1988 the Bristol County Court granted the applicant supervised access on two occasions, for a period of one hour each. Having refused to allow access on 9 September 1988 and 13 September 1988, and stated her intention not to allow supervised access to take place, the mother was committed to 24 hours' imprisonment on 8 November 1988.        On 14 December 1988, following the mother's refusal to allow access, the applicant filed an application for custody and access.        On 30 January 1989 Judge Counsell (Bristol County Court) dismissed the applicant's application for custody and access on the ground that, although it was in the child's interests to see her father regularly, the mother was obdurate and would not accept this.        On 14 February 1989 the final divorce (decree absolute) was pronounced.        On 19 April 1990 the applicant renewed his application for access.   On 13 July 1990 Judge Counsell (Bristol County Court) refused to make an order for access, considering that such an order was not feasible as the mother was opposed to it and, as a consequence, granting direct access would be harmful for the child.        The applicant appealed against this decision. On 27 November 1990 the Court of Appeal decided to appoint the Official Solicitor to represent the child and adjourned the appeal hearing.        The Official Solicitor submitted a first report on 21 March 1991.      On 25 June 1991 the Court of Appeal adjourned the hearing in order to allow the Official Solicitor to obtain a report from a child-psychiatrist as to whether access to the father was in the child's interests.        A second report was submitted by the Official Solicitor on 22 July 1991.        At the hearing of 25 July 1991 the Court of Appeal noted that the parents had arranged to attend conciliation sessions and dismissed the applicant's appeal for that reason.        On 30 August 1991, as conciliation had failed, the applicant filed another application for access.        On 17 January 1992 Judge Counsell from the High Court of Justice (Family Division), sitting in Bristol, after examination of a further report of the Official Solicitor, and after hearing the child- psychiatrist, ordered a first access of the applicant to see his daughter.   The access visit took place on 15 February 1992, and the applicant was able to see his daughter for the first time.   During the visit, which lasted one and a half hours, the mother of the child, the Official Solicitor and the child-psychiatrist were present.        On 9 March 1992, following the meeting between the applicant and his daughter, and upon the recommendation of the psychiatrist, the Court ordered that the applicant should have access to his daughter on a regular basis, namely the third Saturday of alternate calendar months, for a period of approximately 1 1/2 hours.   The court ordered that such access should take place on 11 April 1992, 13 June 1992 and 8 August 1992.   The court also allowed the applicant to write to his daughter once per month and decided to review the matter on 12 August 1992.        On 11 April 1992 the applicant's daughter was brought for a visit to the applicant's house.   She was accompanied by her mother and her grandfather.   As she refused to leave the car, the applicant, accompanied by R.B., a person appointed by the court, went to the car, where he spoke to her for about five minutes.        On 13 April 1992 the applicant made an application for contact, which, on 19 May 1992, led to no order.        The visit scheduled for 13 June 1992 did not take place due to the mother's opposition.        On 20 June 1992, following an application for contact made on 15 June 1992, Judge Counsell (Bristol County Court) made an order requesting the Official Solicitor to ensure that contact on 8 August took place.        The Official Solicitor submitted a fourth report on 30 July 1992.        On 5 August 1992 Judge Counsell (High Court) ordered that contact take place on 8 August 1992 at the applicant's house and that similar contact should take place thereafter on the third Saturday of alternate calendar months.        On 8 August 1992 the applicant's daughter visited him at his house.   The visit lasted one and a half hours.On 17 October 1992 the applicant's daughter was brought by her mother and her grandfather to the applicant's house for another visit.   Refusing to leave the car, the child told R.B. and C.G., appointed by the court to be present at the visit, that she did not want to see the applicant.   Consequently, the visit did not take place.        On 10 November 1992, following an application for contact   of 19 October 1992, a contact order was refused.        The applicant's daughter came for another visit on 19 December 1992, but after speaking with the applicant in the presence of her maternal grandfather for some minutes, she started crying and said she wanted to go home.        On 22 December 1992 the applicant requested that contact should take place in a neutral setting without any member of the mother's family being present.   He also requested that contact take place not once every six or eight weeks, but once every fortnight.        On 12 February 1993, after examination of the Official Solicitor's report of 9 February 1993, Judge Counsell (Bristol High Court of Justice) adjourned the hearing to 20 May 1993 in order to enable, firstly, the applicant to obtain legal representation, and secondly, the Educational Welfare Officer to undertake conciliation proceedings between the parents.   The Judge ordered that there be no contact in the meanwhile.        On 20 April 1993 Judge Counsell (Bristol County Court) ordered the Official Solicitor to obtain information as to progress in the conciliation proceedings between the applicant and the mother of the child.        On 20 May 1993, after hearing a child-psychiatrist, Judge Counsell (Bristol High Court of Justice) refused the applicant's application for contact subject to reviewing the matter in March 1994 in order, firstly, to allow the Official Solicitor to approach the Family Conciliation Service with a view to initiating further attempts at conciliation between the parents and secondly, to allow the Official Solicitor to provide the court with a further report on the matter. The Judge ordered that in the meantime the applicant should have no direct physical contact with his daughter, as such contact could be damaging to the child.   The applicant was nevertheless allowed to have indirect contact such as sending his daughter cards at Christmas, on her birthday, at Easter and once during the summer holidays, sending her small monetary gifts at Christmas and on her birthday and obtaining information from his daughter's school as to her progress.        On 16 June 1993 the applicant filed an appeal against the order of 20 May 1993 prohibiting direct physical contact.   On 11 November 1993 the Court of Appeal (Family Division) dismissed the appeal, considering that, on the evidence, the trial judge's decision was within the bounds of his discretion.        The applicant's application for leave to appeal to the House of Lords was dismissed by the Court of Appeal on 23 November 1993.   On 7 February 1994 the House of Lords refused leave to appeal.On 1 March 1994 the child-psychiatrist submitted a report to the court, where he wrote the following:        "[...] currently L. is able to talk in a neutral way about her      father [...] and she is also able to accept his sending Christmas      and birthday cards to her.   However, that degree of acceptance      is currently fragile, and if she were forced against her express      wishes to have increased indirect contact, or direct contact with      him, then the effect would be that she would turn profoundly and      more permanently against him [...]. L. has an inner conflict      about visiting her natural father, whom she asks not to be      required to visit for the time being, although she thinks she may      like to see him in the future [...].   Either time should be      allowed to gradually effect the change which will permit L. to      request direct contact with her father, or a [fourth] attempt to      improve parental attitudes through conciliation could be tried.      The latter course is preferred but is dependent on finding an      appropriate and acceptable family conciliator [...]"        According to the applicant's written statement on 15 March 1994, the applicant received the child-psychiatrist report of 1 March 1994 on 14 March 1994.        On 16 March 1994, after examination of the reports submitted by the Official Solicitor and the child-psychiatrist, after hearing the parties, including the applicant's personal cross-examination of the psychiatrist, and in the light of the failure of the conciliation proceedings between the parents, Judge Counsell (High Court of Justice, Family Division) stated first that in taking a decision, the welfare of the child was paramount.   It noted further, on the one hand, the distress and suffering caused to the applicant by the absence of direct contact with his child, and on the other hand, that the child had a serious loyalty conflict vis-à-vis her mother which could become detrimental to her mental development if she was forced to have direct contact with the applicant for the following five years.   The judge reached the conclusion that, although in principle, it was in the interest of the child to see and know her father, forcing direct contact, as well as continuing the court proceedings, would be damaging for the child for the time being.   Taking into account the fact that the child had expressed the view that at that time she did not want to see the applicant, although she thought that at some time in the future she might want to do so, and invoking section 1(1) of the Children Act 1989, the Judge ordered that there should be only indirect contact between the applicant and his daughter by his sending her cards at Christmas, on her birthday and during the summer holidays and by his receiving his daughter's school reports.   The Court also decided that, pursuant to section 91(14) of the Children Act 1989, the applicant could not file another application without leave of the court until 16 March 1999.        The applicant's appeal against the decision of 16 March 1994 was dismissed by the Court of Appeal (Family Division) on 31 October 1994. The Court concurred with Judge Counsell in finding that a direct access and further court proceedings could be damaging for the child, and confirmed that the High Court's decision was in compliance with the Children Act 1989.   The Court also ordered that the child-psychiatrist provide a report concerning the attitude of the child to contact with the applicant, to be served on both parents and filed with the court by 1 November 1996. On 25 April 1995 the House of Lords refused to grant the applicant leave to appeal.        In his report of 12 December 1996, following a report of the child-psychiatrist in which it was noted that the child had moved steadily in her attitude towards contact with her father, the Official Solicitor recommended an increase in the amount of indirect contact between the applicant and his daughter and a further review on the question of direct contact by 1 January 1998.   In particular, the Official Solicitor recommended that the applicant's daughter be permitted to send letters and cards to her father as often as she wishes and that the applicant be permitted to write one letter in reply to each of those.        On 24 June 1997 the applicant consented to an order being made in the terms of the Official Solicitor's recommendations.        On 8 July 1997 an order was accordingly made.   B.    Relevant domestic law        Section 1(1) and (2) of the Children Act 1989        "(1) When a court determines any question with respect to -      (a)   the upbringing of a child; or      (b)   the administration of a child's property or the application           of any income arising from it,        the child's welfare shall be the court's paramount consideration.        (2)   In any proceedings in which any question with respect to      the upbringing of a child arises, the court shall have regard to      the general principle that any delay in determining the question      is likely to prejudice the welfare of the child.        [...]"        Section 91(14) of the Children Act 1989        "On disposing of any application for an order under this Act, the      court may (whether or not it makes any order in response to the      application) order that no application for an order under this      Act of any specified kind may be made with respect to the child      concerned by any person named in the order without leave of the      court."   COMPLAINTS   1.    The applicant complains under Article 6 of the Convention that he was deprived of a fair hearing before the High Court sitting in Bristol, as some important documents were given to him a short time before the hearing.   He points out in this respect that for the hearing of 16 March 1994 he was given the psychiatrist's report only on 14 March 1994.   He also complains that he was not informed in advance that the judicial discretion provided for in Section 91(14) of the Children Act would fall for consideration at the hearing of 16 March 994.   As a consequence, he did not have a proper opportunity to advance evidence and submissions in this respect or to obtain legal representation.2.    The applicant complains, under Article 6 of the Convention, that the proceedings concerning his applications for access were not decided within a reasonable time.   He contends that the negligence of the authorities in enforcing the original court order has led to the proceedings being delayed for over 9 years.   In particular, he complains that the hearing on 30 January 1989 was unjustifiably adjourned for 15 months, and his application for contact was unduly adjourned on 20 May 1993 for 10 months.   3.    The applicant complains under Article 8 of the Convention that the British court decisions preventing him from having access to his child violate his right to respect for family life.   4.    The applicant complains that the refusal of access constitutes racial discrimination contrary to Article 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 1 May 1995 and registered on 26 October 1995.        On 17 January 1997 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 25 April 1997.   The applicant replied on 21 August 1997, after an extension of the time-limit.   THE LAW   1.    The applicant complains, under Article 6 (Art. 6) of the Convention, about the unfairness of the proceedings before the High Court on 16 March 1994.   In particular, he complains that he was given some important documents only a short time before the hearing on 16 March 1994, and that he was not told in advance about the possible use of Section 91(14) giving the judge discretionary powers.   As a consequence, he alleges that he could not properly prepare his case and obtain legal representation.        Article 6 (Art. 6) of the Convention reads as follows:        "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 Commission notes firstly that the applicant did not request an adjournment of the hearing of 16 March 1994 either to properly prepare his case or to obtain legal representation.   Instead, he cross- examined the psychiatrist and gave evidence himself.   The Commission also observes that no explanation was provided by the applicant as to his refusal to cross-examine the Official Solicitor.        The Commission finds that, in any event, the applicant had not demonstrated that his written statement of 15 March 1994 and his oral submissions at the hearing on 16 March 1994 were not considered by the Court, or that the manner in which the court conducted the hearing was otherwise unfair.    As a result, the Commission finds no evidence to indicate that the applicant could not present his case properly or that the Court conducted the proceedings unfairly.        Accordingly, this complaint does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission concludes 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 complains, under Article 6 (Art. 6) of the Convention, that the proceedings concerning his applications for access were not decided within a reasonable time.        The Government submit that the proceedings for contact and access instituted by the applicant cannot be looked at as a whole.   Each application or renewed application for contact is therefore to be considered a separate and distinct determination of the applicant's rights for the purposes of Article 6 (Art. 6) of the Convention.   In the Government's view, were the position otherwise, proceedings for access or contact would be considered to last from the date of the first application until the child reaches the age of majority, a potential maximum period of 18 years.        In so far as it is alleged that any of the separate periods taken to determine the applicant's civil rights are unreasonable, the Government submit in the first place that, pursuant to Article 26 (Art. 26) of the Convention, the applicant is time-barred from complaining about any decision pronounced more than six months before the introduction of his application to the Commission, on 1 May 1995. Therefore, the only decision finally determined within the preceding six months about which the applicant can now complain is the decision of the High Court of 16 March 1994 (subsequently upheld on 31 October 1994 and 25 April 1995), although the previous determinations are relevant as background.        As to the substantive issues, the Government rely on the complexity of the proceedings and the fact that the determination went through three levels of jurisdiction.   They point out that under Section 1(2) of the Children Act 1989 the Court is required to have regard to the general principle that any delay in determining any question relating to a child's upbringing is likely to prejudice the welfare of the child.   Since it is the welfare of the child which is the Court's paramount consideration, there are bound to be cases in which planned and purposeful delay will improve the chances of meeting the child's needs (such as where it is felt that the Court would benefit from a full investigation and a report from a psychiatrist). The Government consider that in the present case, such reports were obtained with a minimum of delay.   It also notes the amount of time it took the applicant to agree to the recommendations in the report of the Official Solicitor dated 12 December 1996.The applicant refutes the Government's arguments that each or renewed application is to be considered a separate and distinct determination of his rights for the purposes of Article 6 (Art. 6) of the Convention.   In the applicant's view, the proceedings for access which he initiated from the birth of his daughter should be looked at   as a whole. In this respect, he states that all his applications necessarily followed on from the first application.   Had the matter been resolved from the first application, no further proceedings for access or contact would have been necessary. The applicant further states that the proceedings, from the first application and the first Order were not complex, but it was the lack of enforcement of the first Order that made them become complex.        The Commission recalls that, in order to keep the parents and children concerned no longer than necessary in uncertainty, proceedings relating to a parent's access to his child should not be unduly prolonged (cf. Hendricks v. the Netherlands, Comm. Report 8.3.92, para. 137, D.R. 29, pp. 14, 41).   It also recognises that the decision to be taken requires careful examination of the family situation and needs to take into account the possibility of reaching an agreed arrangement.        The Commission notes that the applicant filed several applications for access.   The first application was granted on 17 August 1988, the second was dismissed by Bristol County Court on 30 January 1989.   The applicant renewed the application for access 15 months later, on 19 April 1990, which was dismissed by the County Court on 13 July 1990, that is four months later.   The appeal was dismissed on 25 July 1991 by the Court of Appeal.   Another set of proceedings was instituted by the applicant on 30 August 1991.   He was then granted access by judgments of 17 January 1992, 9 March 1992, 15 June 1992 and 5 August 1992.   On 19 October 1992 the applicant filed another application for contact, which was dismissed on 10 November 1992.   The last set of proceedings started on 22 December 1992, when the applicant filed an application seeking more frequent contacts, was reviewed on 16 March 1994, and ended on 25 April 1995 with the decision by the House of Lords not to grant leave to appeal.        The Commission notes that these proceedings, although they had the same object, that is to allow access to the applicant, concerned different periods of time, were dealt with in a different manner by distinct judgments, which were open to distinct levels of appeal.   The Commission considers therefore that each set of proceedings should be examined separately.        The Commission notes that, as the present application was submitted to the Commission on 1 May 1995, that is more than six months later than all sets of proceedings but the proceedings that ended by judgment of 25 April 1995, this part of the application must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.        It follows that only that part of the application concerning the proceedings that ended on 25 April 1995 is within the six-month time- limit set out in Article 26 (Art. 26) of the Convention.Even assuming that the period to be taken into consideration began on 22 December 1992 rather than on the review date of 16 March 1994, for the particular circumstances of the case, in assessing the reasonableness of the period following 22 December 1992, the Commission will take into account the state of the earlier proceedings concerning access and the link between all these proceedings.        The last set of proceedings ended on 25 April 1995, when the House of Lords refused to grant the applicant leave to appeal.        The total period to be considered was thus two years and four months.   The length of proceedings before the High Court was of fifteen months, whereas the length of proceedings before the Court of Appeal was of almost nine months.        The Commission reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of each case and having regard to the following criteria: the complexity of the case, the conduct of the parties and that of the authorities dealing with the case (Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).        The Commission notes that the case was of a certain complexity, as the courts, in taking their decision, had to strike a balance between the welfare of the applicant's child and the applicant's rights as a father.   In particular, the courts had to determine the question whether direct access of the applicant would be damaging or not for his child.        The Commission notes that the decision taken by the High Court required careful examination of the family situation and of the preceding attempts at contact.   It also notes that the preparation of the report by the child-psychiatrist and the Official Solicitor involved time-consuming contacts with the persons involved.   On the other hand, the Commission observes that the Court decided on 20 May 1993 to review the application in March 1994 in order to allow further attempts at conciliation between the applicant and the mother of the child.        The Commission also observes that the applications for contact preceding the date of 22 December 1992 were dealt with by the courts rather speedily.        In the light of the criteria laid down in the Court's case-law and having regard to the circumstances of the present case, the Commission finds that the time required by the courts for the determination of the applicant's request for direct access cannot be regarded as unreasonably long.        Accordingly, this complaint does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission concludes 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 complains that his right to direct access to his child has been interfered with in an unjustified manner.   He invokes Article 8 (Art. 8) of the Convention, which 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 ... for the      protection of the rights and freedoms of others."        The Government submit in the first place that there has never been any "family life" within the meaning of Article 8 (Art. 8) between the applicant and his daughter.   They contend that the fact that the applicant is the natural father of the child is not necessarily sufficient to establish "family life" at birth, even though the applicant was the formal husband of the child's mother at the time of the birth.   Regard must be had to the substance and reality of the relationship as opposed to its formal status.   The Government point out in this respect that the applicant has never lived with his daughter and was not living with her mother at the time of the birth. Furthermore, the Government consider that the quality of the applicant's union with his wife was not such as to infer that family life necessarily existed between the applicant and his daughter at the time of the birth of the child, as, on the one hand, divorce proceedings were active, and on the other hand, the mother of the child had left the matrimonial home.   Moreover, the applicant's first application for access to his daughter was not made until she was one year and two months old.        In the alternative, the Government submit that any interference with the right to family life was justified under paragraph 2 of Article 8 (Art. 8-2) of the Convention.   Such interference was in accordance with the law, namely the Children Act 1989 and its predecessor, the Matrimonial Causes Act 1973, and was necessary in a democratic society to protect the rights and freedoms of others, namely the applicant's former wife and his daughter.   Furthermore, the interference was necessary in a democratic society, that is, it was proportionate to the legitimate aim pursued.   The Government point out in this respect that the courts took into account the welfare of the child.   Their decisions were based on seven independent reports prepared by the Official Solicitor, after consultation of a psychiatrist.   The Official Solicitor was appointed at public expense to look after the child's interests.   The order of 8 July 1997 is evidence of a gradual improvement in the relationship between the applicant and his daughter and goes some way to mitigate the effect of the 1994 order that the applicant must obtain the leave of the Court before filing another application for access or contact before March 1999.        The applicant submits that his relationship with his daughter does constitute family life within the sense of Article 8 (Art. 8) of the Convention, and therefore falls within the scope of this Article. He points out that at the birth of his child, he was still living with his wife, who refused to return home after the birth.   Invoking the Eriksson judgment, where the court had stated that the mutual enjoyment by parent and child   of each other's company   constitutes a fundamental element of family life, the applicant states that the simple fact that divorce proceedings were active and that his former wife refused to allow access from the birth does not mean that there is no family life in the sense of Article 8 (Art. 8) of the Convention.The applicant considers that the interference with his family life was not provided by law, as the court's decision not to allow direct contact did not take into account the child's interest, but the mother's wishes.   The applicant also contends that there was no evidence to support the conclusion that direct contact could be damaging for the child.        The Commission recalls that the concept of family life on which Article 8 (Art. 8) is based embraces, even where there is no cohabitation, the tie between a parent and his or her child, regardless of whether or not the latter is legitimate (see Eur. Court HR, Boughanemi v. France judgment of 24 April 1996, Reports 1996-II, no. 8, p. 608, para. 35).   The existence or not of a "family life" falling within the scope of Article 8 (Art. 8) of the Convention will depend on a number of factors and on the circumstances of each particular case (No. 12402/86, Dec. 9.3.88, D.R. 55, p. 224).   Relevant factors in this regard include the nature of the relationships between the parents and the demonstrable interest in and commitment by the father to the child both before and after the birth (see mutatis mutandis, Keegan v. the United Kingdom, Comm. Report 17.2.93, para. 48, Eur. Court HR, Series A no. 290, p. 27).        The Commission notes that in this case the applicant and the child's mother were married and co-habited more than a year.   Thus, their relationship cannot be characterised as casual or fleeting.   The Commission also notes that the applicant has constantly requested to have access to his child since March 1988.   As to the dispute between the parents concerning the issue of paternity, the Commission notes that this appears to have been due to the behaviour of both parents.        In the light of these elements, the Commission finds that the applicant's links with the child are sufficient to bring the relationship within the scope of Article 8 (Art. 8) of the Convention.        Further, the Commission considers that the right to respect for family life within the meaning of Article 8 (Art. 8) of the Convention includes the right of a divorced parent who is deprived of custody following the break-up of the marriage to have access to or contact with his child.   The State may not interfere with the exercise of that right otherwise than in accordance with the conditions set out in Article 8 para. 2 (Art. 8-2) (cf. Hendricks v. the Netherlands, loc. cit., para. 94).        The Commission notes that the refusal to allow direct contact between the applicant and his child constitutes an interference with the applicant's right to family life within the meaning of Article 8 (Art. 8) of the Convention.        The Commission must therefore examine whether the interference complained of was justified under Article 8 para. 2 (Art. 8-2) of the Convention, i.e. whether the interference was in accordance with the law, had an aim which was legitimate and was necessary in a democratic society.        The Commission observes that the decisions taken by the domestic courts were based on sections 1(2) and 91(14) of the Children Act 1989.      As regards the legitimate aim, the Commission has constantly held that in assessing the question of whether or not the refusal of the right of access to the non-custodial parent was in conformity with Article 8 (Art. 8) of the Convention, the interests of the child predominate.   The interference therefore has a legitimate aim insofar as it has been made for the protection of the child's interests (cf. No. 7911/77, Dec. 12.12.77, D.R. 12, p. 192; No. 12495/86, Dec. 7.12.87, D.R. 54, p. 187).        In the present case it is undoubted that the interference had the purpose of protecting the child's interests.   In this respect the Commission refers to the decision of the High Court dated 16 March 1994, where it was held that in principle, it was in the interest of the child to see and know her father.   In the Court's opinion, there were exceptions to this rule in cases where a conflict appeared to exist between the parents and a direct access could be harmful for the child's development.        The Commission must now consider whether the interference was necessary in a democratic society for the protection of the child's interests.        In examining whether the interference was necessary the Commission does not intend to substitute its own judgement for that of the domestic courts.   Its function is to assess from the point of view of Article 8 (Art. 8) the decision which those courts took in the exercise of their discretionary powers.        The Commission recalls that although Article 8 (Art. 8) includes a right for the parent to have measures taken with a view to his being reunited with the child and an obligation for the national authorities to take such action (Eur. Court HR, Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 19, para. 53), such an obligation is not absolute, since the reunion of a parent with a child who has lived for some time with other persons may not be able to take place immediately and may require preparatory measures being taken to this effect.   The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and co-operation of all concerned will always be an important ingredient.   Whilst national authorities will have to do their utmost to facilitate reunion, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 (Art. 8) of the Convention (see Eur. Court HR, Olsson v. Sweden (no. 2) judgment of 27 November 1992, Series A no. 250, pp. 35-36, para. 90; Hokkanen judgment, loc. cit., p. 22, para. 58).        Furthermore, the Commission   considers that it is an important function of the law in a democratic society to provide safeguards in order to protect children from harm and mental suffering resulting, for instance, from the break-up of the relationship of their parents.   In such cases this purpose may be achieved by keeping the child away from a situation which could be detrimental to his or her mental development owing to the existence of a loyalty conflict vis-à-vis one or both of the parents and the inevitable parental pressure put on him or her causing feelings of insecurity and distress (cf. Hendricks v. the Netherlands, loc. cit., para. 120).The Commission considers that where there is a serious conflict between the interests of the child and one of its parents, which can only be resolved to the disadvantage of one of them, the interests of the child must, under Article 8 (Art. 8), prevail.        In the present case, the Commission is called upon to examine whether the refusal of direct contact between the applicant and his daughter as decided by the High Court on 16 March 1994 amounts to a lack of respect for family life.        In doing so, the Commission will take into consideration not only the proceedings which led to the High Court's judgment of 16 March 1994, but all the previous proceedings concerning the applicant's access to his child, as they form the background to the applicant's de jure or de facto lack of access to his daughter.        As regards the background of the present case, the Commission notes that, since 17 August 1988 and until 20 May 1993, the applicant had been granted access to his child on a number of occasions. However, except for the meetings of 15 February 1992 and 8 August 1992, his visiting rights remained unenforced, due either to the mother's blanket refusal to allow access or to the child's refusal to see her father.        The Commission observes that, in order to enforce the applicant's right to access, the Court committed the mother on one occasion to 24 hours' imprisonment on 8 November 1988.   However, due to the mother's obduracy and also as a result of the growing inner conflict of the child, most of the subsequent visits could not take place.        The Commission notes that it was in the light of these elements that the High Court was called upon on 16 March 1994 to decide on the applicant's right.        The Commission finds that the national courts carefully considered the applicant's fresh application for contact. The Commission notes in the first place that the case was decided by Judge Counsell, the same judge who had handled the previous applications for contact and who, therefore, had very close and long-running experience of the case.        The Commission notes the actions taken by Judge Counsell in order to allow attempts at conciliation between the applicant and the mother of the child.   It also notes that Judge Counsell had a careful look at the history of the case and acknowledged the applicant's positive behaviour throughout the previous proceedings.        The Commission notes that Judge Counsell took into account, on the one hand, the psychiatrist's report suggesting that forcing direct contact for the time being would be counter-productive and damaging for the child, and on the other hand, the fact that the child had expressed the view that at that time she did not want to see the applicant, although she thought that at some time in the future she might want to do so.     The Commission also notes that the national courts confirmed that in taking their decisions, the welfare of the child was paramount. Without overlooking the distress and suffering caused to the applicant by the absence of direct contact with his child, the courts considered that, given the persisting difficulties between the parents, the child had a serious loyalty conflict vis-à-vis her mother which could become detrimental to her mental development if she was forced to have direct contact with the applicant for the following five years.        The Commission also notes that the courts decided that, in order to facilitate reunion in the future, indirect contact should be maintained between the applicant and his daughter by way of cards, reports from the child's school and photographs.        In these circumstances, the Commission is satisfied that the domestic courts, bearing in mind the competing interests and the difficulties in reconciling the applicant and the child's mother, have done their utmost to facilitate reunion between the applicant and his child.        Accordingly, the Commission, having regard to the margin of appreciation enjoyed by the national authorities,   concludes that the interference with the applicant's right to respect for his family life, being proportionate to the legitimate aim pursued, was justified under Article 8 para. 2 (Art. 8-2) as being necessary in a democratic society for the protection of the rights and freedoms of another person, namely the child concerned.        It follows that this part of the applicant is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Commission.        Insofar as the applicant invokes lastly Article 14 (Art. 14) of the Convention, he has failed to substantiate his complaint, which accordingly must also be rejected as being 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.        M.F. BUQUICCHIO                        M.P. PELLONPÄÄ         Secretary                             President    to the First Chamber                  of the First Chamber