CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 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 }                        Application No. 34546/97                       by A.V.                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 20 May 1998, the following members being present:              MM     E. BUSUTTIL, Acting President                  N. BRATZA                  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 29 July 1996 by A.V. against the United Kingdom and registered on 17 January 1997 under file No. 34546/97;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the letter of 13 March 1998 submitted by the respondent      Government and the letter of 13 March 1998 submitted by the      applicant's representative;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a citizen of the United Kingdom born in 1952 and currently resident in Blackpool. Before the Commission he is represented by Philip Leach, Solicitor and Legal Officer of Liberty, London.        The facts as submitted by the applicant may be summarised as follows.        On 11 July 1981 the applicant married C. On 27 April 1987 a male child, T. was born to C. The birth was registered by C on 13 May 1987, naming the applicant as the boy's father. At this time divorce proceedings between the applicant and C. had been commenced. The decree nisi was pronounced on 24 July 1986, and the decree absolute was granted on 27 October 1987.        On 24 April 1992 the applicant married J. and their daughter, M., was born on 23 April 1994.        Very shortly after the birth of T. in 1987, the applicant was told by C. that the true father was in fact I., a man with whom she had had an affair.        C. subsequently brought affiliation proceedings in the Weymouth County Court against I. and an order was made in respect of maintenance for T. Further, blood tests from the applicant, the mother, the child and I., taken during the course of affiliation proceedings, excluded the applicant from paternity of the child.        For the purpose of County Court proceedings claiming property adjustment, T.'s mother, inter alia, filed with the court a sworn affidavit dated 7 November 1991 in which she stated that T.'s father was I., and not the applicant.        The applicant accordingly began proceedings to amend T.'s birth certificate. Upon application to the Registrar of Births, Deaths and Marriages he was informed that, by law, the error in the birth certificate could only be amended by means of a note in the margin on production of statutory declarations setting forth the facts of the case by two people who are "qualified informants" of the birth, or in default of such people, two "credible persons having knowledge of the truth of the case" (such persons being defined in the relevant legislation).        The relevant law meant that the applicant was reliant on the co- operation of others to provide the afore-mentioned declarations. In the specific circumstances of this case, and as detailed below, C. as T.'s mother and the real father, I. (being potential "qualified informants" for the purpose of the legislation) did not provide such co-operation -   despite T.'s mother's previous sworn affidavit in the affiliation proceedings (which was inadequate for present purposes as it was not a statutory declaration). There was no means by law by which either C. or I. could be compelled to provide information or a blood sample as would enable a third party to make a declaration as to the truth or otherwise of the applicant's assertion.        While it would have been possible for the applicant to obtain a statutory declaration from Dr. Grant, who carried out the blood test for the purpose of the affiliation proceedings, he had since died. Further, the applicant was unable to obtain Dr. Grant's records, either from his former hospital (where he was told they were not kept as Dr. Grant only worked there in an honorary capacity) or after contacting the Probate and Trust Consultants who were instructed to assist in the administration of Dr. Grant's Estate (they had destroyed all copies of Dr. Grant's paternity and medical papers and they had no knowledge of the whereabouts of his original records). The applicant's efforts to get colleagues or other qualified persons to comment upon and interpret the report Dr. Grant produced also proved unsuccessful as they did not know or could not deduce what confirmatory tests Doctor Grant performed.        The matter was consequently pursued by the applicant's Member of Parliament (MP) who subsequently received a written reply from the Parliamentary Under Secretary of State which expressed "great sympathy with <the applicant>" but explained that the legislation did not permit the applicant to introduce a statutory declaration from others. The applicant's MP subsequently initiated an adjournment debate in the House of Commons (24 April 1996), whereupon, on behalf of the Government Mrs Angela Knight, the Economic Secretary to the Treasury, replied that while she had "considerable sympathy with the difficult situation in which [the applicant] finds himself", and that she "was aware that there are particular complications with this most sensitive and unusual case", neither she nor the Registrar General had any power to exercise any discretion in the matter. She concluded as follows:        "I can appreciate my honourable friend's frustration, and      particularly <the applicant's> frustration, but without the      cooperation of his former wife or a suitably qualified person to      declare that the blood tests taken were accurate, regrettably      there is nothing further I can offer him..."     COMPLAINTS   1.    The applicant complained of a violation of his right to respect for private and family life contrary to Article 8 of the Convention. In particular he submitted that, by a failure to provide an adequate mechanism for him to correct T.'s birth certificate, the respondent State did not accord respect to the applicant's true family status or private life and wrongly permitted interference with such rights. Such was not justified as necessary in a democratic society and could not be justified by any of the exceptions contained in Article 8 para. 2 of the Convention.   2.    The applicant submitted that there was a breach of Articles 14 when read in conjunction with Articles 8 and 13 of the Convention. He submitted that, as the United Kingdom law currently stood, there was a discrimination on grounds of marital status in respect of the power to ensure that the birth register is correct as between putative fathers who are married to the mother of a child and putative fathers who are not. The applicant asserted that, by virtue of the relevant provisions of the Birth and Deaths Registration Act 1953 (sections 1(2)(a), 2(1)(a) and 10), a man who was married to the mother of a child could be registered by the mother as the father of her child without his presence or consent, and she was not required to produce any evidence to support the registration. By contrast, a man who was not married to the mother of a child could not be registered by the mother as the father of her child without his presence, consent or other evidence.   3.    The applicant also complained that under United Kingdom law he had no access to an effective remedy contrary to Article 13 of the Convention with respect to the arguable breach of Article 8.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 29 July 1996 and registered on 17 January 1997.        On 11 September 1997 the Commission (First Chamber) decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, and to invite them to submit written observations on the admissibility and merits of the application.        On 13 March 1998 the Government informed the Commission that the Government and the applicant had agreed to request that the application be struck off the list of cases before the Commission on the basis of agreed terms of settlement (see below). By letter of the same date the applicant confirmed the terms of the friendly settlement.     REASONS FOR THE DECISION        The Commission notes that the parties have reached a friendly settlement on the following terms:        "1.    The United Kingdom Government undertakes, subject to any      representations made as part of the preliminary consultations      required by section 3 of the Deregulation and Contracting Out Act      1994, to place a Deregulation Order before Parliament, pursuant      to section 1 of that Act, to amend section 29(3) of the Births      and Deaths Registration Act 1953. The Government proposes to      permit correction of a birth record either upon presentation of      two statutory declarations, or, alternatively on presentation of      one statutory declaration from a qualified informant together      with an unequivocal order of the court in place of the second      statutory declaration confirming that the person in question is      or is not the biological parent of the child.        2.     The Government will use its best endeavours to ensure that      the order is brought into force as soon as possible, it being      anticipated that the order might be made and brought into force      by April 1999 at the earliest.        3.     The Government will pay the applicant compensation of £500.        4.     The Government will pay the applicant's reasonable costs      incurred in bringing the application to the European Commission      of Human Rights".        In these circumstances, the Commission finds that the matter which has been the subject of the application has been resolved within the meaning of Article 30 para. 1 (b) of the Convention.   The Commission, furthermore, having regard to Article 30 para. 1 in fine, finds no special circumstances regarding respect of human rights as defined in the Convention which require the continuation of the examination of the application.        For these reasons, the Commission, unanimously,        DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.       M.F. BUQUICCHIO                                 E. BUSUTTIL      Secretary                                  Acting President to the First Chamber                          of the First Chamber