CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 septembre 2000

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THE UNITED KINGDOM   (Application no. 32346/96)     JUDGMENT     STRASBOURG   19 September 2000         FINAL   13/12/2000           This judgment will become final in the circumstances set out in Article   44   §   2 of the Convention. In the case of GLASER v. the United Kingdom , The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   J.-P.C osta , President ,   Mr   W. F uhrmann ,   Mr   L. L oucaides ,   Mr   P. K ūris,   Mr   K. J ungwiert ,   Sir   Nicolas B ratza ,   Mr   K. T raja , judges , and Mrs S. Dollé , Section Registrar , Having deliberated in private on 30 May and 29 August 2000, Delivers the following judgment, which was adopted on that last-mentioned date: PROCEDURE 1.     The case originated in an application (no.   32346/96) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article   25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British citizen, Mr   Maric Glaser (“the applicant”), on 5 November 1993. 2.     The applicant was represented by Carter Bells, Solicitors, practising in Kingston upon Thames. The United Kingdom Government (“the Government”) were represented by their Agent, Mr   Eaton of the Foreign and Commonwealth Office. 3.     The applicant alleged that there had been a failure by the authorities to take adequate measures to enforce the contact orders issued by the court in respect of his children, invoking Articles 6 and 8 in this regard. He also invoked Article 9 in relation to alleged infringement by the courts of his freedom of religion. 4.     The application was transmitted to the Court on 1   November 1998, when Protocol No.   11 to the Convention came into force (Article   5   §   2 of Protocol No.   11). 5.     The application was allocated to the Third Section of the Court (Rule   52   §   1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article   27   §   1 of the Convention) was constituted as provided in Rule   26   §   1 of the Rules of Court. 6.     By a decision of 7 September 1999, the Chamber declared the application admissible. 7.     The applicant and the Government each filed observations on the merits (Rule   59   §   1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule   59   §   2 in fine ). THE FACTS I.   THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1946 in India and lived for a period in South Africa, where he married in January 1979 and had three children: PM. born in 1982, A. born in 1984 and F. born in 1985. The family moved to England in 1986 but, following marital difficulties, the applicant’s wife left the family home with the children in September 1991. She agreed to return in November when the applicant agreed to move out. Divorce proceedings were instituted on 24 October 1991 and the divorce became final on 10 June 1993. 9.     Contact between the applicant and his children was arranged by agreement with the mother present between November 1991 and March 1992. However, in March 1992, contact was stopped by the mother who claimed that the children no longer wanted to see their father. In April 1992, the applicant’s former wife made allegations that the applicant had sexually abused the children, but these allegations were not substantiated in investigations carried out by the Child Protection Unit in June 1992. It was however considered that the patterns of behaviour of the children were consistent with the behaviour of children under considerable stress and, with the consent of both parents, the family were referred to the Child, Adolescent and Family Centre for therapeutic intervention. Meanwhile, in May 1992, an application by the applicant for a residence (custody) order was refused. 10.     On 2 September 1992, an interim contact order was made by the Kingston-Upon-Thames County Court providing for weekly supervised access. This contact never took place. 11.     On 6 November 1992, the same County Court made a further interim order for supervised access, with Christmas access to be by arrangement. Two periods of supervised access took place on 21 November and 12   December 1992. The children were reported as showing no signs of distress and the two younger children as appearing to enjoy seeing the applicant. The Christmas access did not take place as the mother took the children to Wales. 12.     A psychiatric report dated 7 January 1993 noted that the children had felt terrified of the applicant and raised concerns of emotional abuse. It found that the oldest child, PM., who suffered intrinsic learning difficulties, had been clearly disturbed by the applicant’s behaviour and distressed by his mother’s difficulties in the marriage. A. had been stressed and troubled, with the knowledge of the applicant’s suicide attempts adding to his emotional burden. The youngest child F. was the least troubled, though the memories of hitting and shouting were clearly also frightening and disturbing for her. All three children separately indicated that they wanted to live with their mother and were worried about contact with the applicant. There was evidence of a fairly ritualised and damaging cycle of events with the applicant being unreasonably harsh with his children on repeated occasions. Any further contact would have to be handled judiciously and it was of paramount importance to avoid further undue stress to the children. 13.     The County Court made a further interim order for supervised access on 12 January 1993. This order was, in the main, complied with. A further order was made by the County Court on 16 March 1993 for weekly contact to take place in the presence of a mutual friend or in a public place. In a welfare report before the court at that time, the court welfare officer concluded that a break in contact would be unhelpful in counteracting the children’s negative views of their father and it was also noted that, if no contact order was made, then contact was unlikely to occur, whatever the children’s wishes. A psychiatric report dated 12 March 1993 suggested that there should be an increase in contact, unsupervised, and that there was no reason why overnight stays with the father could not be permitted. The report noted that the applicant had acknowledged hitting the children with a belt in the past, had provided a reason for it (his illness) and had apologised to the children for it. The applicant states that he represented himself in the hearings leading up to the June 1993 order. 14.     On 15 June 1993, a contact order was made by the County Court including weekly access, overnight stays and making provision for Summer and Christmas holidays. This contact order has never been complied with. In July 1993, the applicant’s former wife left the family home with the children and moved, it subsequently transpired, to Scotland. 15.     On 25 July 1993, the applicant brought to the attention of the County Court that the order of 15 June had not been complied with and applied for an order to compel his former wife to comply, failing which such penal action as the court deemed fit should be imposed. At the hearing of his application on 2 August 1993, the applicant appeared in person and his former wife was represented by counsel. The judge was told that the mother was very unhappy about contact, that the telephone was disconnected, that the house appeared to be occupied and that the door was unanswered. The applicant informed the judge that the mother might be suffering from depression. The applicant stated in his memorial that the County Court judge said that he had power to make an order requiring the mother to be brought before the court, but suggested instead that the matter should be dealt with by the High Court (Family Division) because of its greater powers. Therefore on the same day the applicant applied to the High Court ex parte . 16.     The applicant’s application to the High Court requested that the contact order of 15 June be enforced. He stated that he effectively asked the judge to take such action as was necessary to enforce the order for contact, and that he did not make a specific application because he was following the suggestion of the County Court judge and did not know what to do. The applicant appeared in person. Mr Justice Singer invited the Official Solicitor to act as guardian ad litem for the children and, if accepted, granted leave to the Official Solicitor to submit documents in the case to such experts as he chose, and for those experts to carry out such examinations and investigations concerning the children as they thought appropriate. 17.     The Official Solicitor accepted the invitation to act on or about 3   September 1993. He wrote to the mother at her last known address on 2, 9 and 14 September to arrange for an interview with the children. He received no response. On 13 September, he instructed enquiry agents in Edinburgh to seek to ascertain the location of the mother and children. They were unsuccessful. 18.     Meanwhile, it appears that the applicant hired a private detective who traced the children to Edinburgh in August 1993. However, the mother moved them again to an unknown address. 19.     The applicant applied ex parte to make the children wards of court and was represented at this stage by counsel. His application requested that the children be located immediately and that the mother be restrained from moving the children from their current address without the leave of the court and that arrangements be made for the children’s schooling. On 1 October 1993, the High Court issued an injunction prohibiting the children’s mother from removing them from jurisdiction without leave of the court and made the three children wards of court. It also directed the Tipstaff to seek and locate the children and to notify the applicant’s solicitors of their address. (The Tipstaff is a court official who executes orders of the court.) The Tipstaff was given a description of the children and addresses at which they might be living. He passed the information to the police who found no trace of them at those addresses. The police placed the names of the children and their mother on the police national computer so that, if they came to the attention of the police, their location would be notified to the Tipstaff. 20.     On 26 October 1993, the Official Solicitor wrote to the Department of Social Security Contributions Agency (DSS) seeking an address for the mother. On 1 November 1993, the DSS forwarded a letter to the mother. The mother did not respond. 21.     As however no progress was apparently being made, the applicant, who was still receiving advice from solicitors, made a further application ex parte to the High Court for information to be provided by particular bodies. On 17 December 1993, the High Court ordered the DSS (including the Child Support Agency), Kingston and Richmond Health Services, National Health Service Records and the Open University to divulge to the court any information which it had on the location of the children. 22.     On 13 January 1994, the Official Solicitor wrote again to the DSS, asking them to forward a letter to the mother. She responded on 30 January 1994, declining to disclose her address or to take up the invitation to arrange interviews. 23.     An address was provided to the High Court by the Child Support Agency during January 1994. The applicant’s solicitors wrote to the court requesting disclosure of this address. On 25 January 1994, leave was given by the High Court to disclose the address of the applicant’s former wife to the applicant’s solicitor on an undertaking that the solicitor would not disclose the same to the applicant. The applicant stated that this never happened, as his former wife and the children had changed address again. The Government disagreed, saying that the address was supplied but that the applicant’s enquiry agents were unable to locate the children who had been moved again. 24.     As the applicant felt that he was not making any progress, he applied to the High Court again, this time in person. On 21 February 1994, the High Court again ordered the relevant authorities to disclose any information which they had as to the current address or whereabouts of the children. The High Court also ordered that any address or information would not be disclosed to the applicant without leave of the court, but that the court would notify him as soon as possible after receipt of relevant information for the purpose of enabling him to seek further directions. The applicant was informed by the court on 24 March 1994 that they had new addresses. 25.     The applicant stated that the District Judge refused to disclose the address, so he applied in person ex parte to the High Court. The application was adjourned on 28 March 1994 pending the Official Solicitor agreeing to act for the children in the wardship proceedings. At the adjourned hearing on 12 April 1994, the applicant again appeared in person. The High Court disclosed the address to the Official Solicitor, the children were joined as defendants to the proceedings and the matter was adjourned until 10 May 1994 to allow the Official Solicitor to report on any information which he had on the whereabouts and welfare of the children. On 15 April 1994, the Official Solicitor wrote to the mother. As issued on 26 April 1994, the terms of the High Court order indicated that the children’s address (received from the National Health Service Central Register) be disclosed to the Official Solicitor only. 26.     On 10 May 1994, the applicant again appeared in person before the High Court. He was granted indirect contact with the children, by way of letters, cards and presents, to be monitored by the Official Solicitor. Details of the address of the children and the social workers involved in the case were ordered not to be disclosed to the applicant. The matter was adjourned by the High Court for further directions in four weeks. 27.     On 7 June 1994, the High Court disclosed to the applicant, who appeared in person, that his children were resident in Scotland although, despite his request, he was not informed of their address so as not to unsettle his former wife. Also on this date the High Court ordered the Official Solicitor to identify for the applicant the appropriate court in which he should issue proceedings in Scotland in order to enforce the order for contact made on 15 June 1993. The High Court also agreed that, upon receiving notice that the father has issued proceedings, it would forward to the relevant court in Scotland the address of the children and the social worker instructed in the case, it being for that court to decide whether, and if so when, to disclose this information to the applicant. It then adjourned the proceedings. 28.     On 17 June 1994, following the applicant’s application of 14 June 1994 to the High Court to forward a copy of the contact order of 15 June 1993, that order was registered in the Court of Session in Scotland. This permitted the order to be treated as an order made by a Scottish court, which would enjoy the available powers to enforce it but did not confer any jurisdiction on the Scottish courts to vary the order. They had power to act immediately for the welfare of the children (section 12 of the Family Law Act 1986) or to issue interim directions to secure their welfare pending the determination of the application to enforce the contact order (section 29(2) of the 1986 Act). 29.     On or about 12/13 July 1994, the applicant commenced proceedings for the enforcement of the English court order . The applicant stated that he was told that he had to have a solicitor in order to commence proceedings, unless he applied to waive this which would have meant further delay. He therefore instructed solicitors. The Government have submitted that this is not the correct position. There was no requirement for a solicitor to act in these type of proceedings, save that an advocate or solicitor advocate had to sign the petition for enforcement or permission (though permission could be obtained from the court to proceed in the absence of a signature). An order was made on 13 July 1994 for the service of the proceedings on the mother, and forbidding the mother from removing the children from Scotland, pursuant to the applicant’s request. 30.     On 20 July 1994, the mother filed her answers to the proceedings alleging that it was not in the children’s interests for there to be contact and that the children would be at risk. The mother applied for an order staying the enforcement proceedings pending the commencement by her of proceedings to vary the June 1993 contact order. The applicant states that the allegations made by the mother in her answers had all been adjudicated on already by the English courts. 31.     The applicant applied again to the High Court in England, which remained the court of primary jurisdiction, for an order directing the mother to appear before the court to show cause why the contact order should not be amended to provide for further staying and visiting contact at Christmas 1994 and Easter 1995 and thereafter in place of that originally ordered; why a penal notice should not be attached to the order; and to provide for an early hearing of the matters. On 27 July 1994, the High Court refused the application as the applicant had engaged in proceedings in Scotland to enforce the contact order and it would be a duplication of those proceedings to consider the same matters. The High Court considered it appropriate for the courts of Scotland to adjudicate concerning enforcement of the contact order and/or to make their own order for such contact. 32.     On 5 August 1994, the applicant lodged a motion asking the Scottish court to make an order enforcing the June 1993 order. This application was heard on 9 August 1994. Though it was not opposed, it was not proceeded with by the applicant. The applicant says that when it became clear that the judge was not going to grant enforcement of the order, as the judge did not consider the order made sense, the applicant’s counsel withdrew the application (without the applicant’s specific instructions) fearing that a refusal of the order would make it difficult for any other judge to disagree. 33.     On 17 August 1994, the applicant lodged another motion asking the Scottish court to make an order enforcing the June 1993 order. On 19   August 1994, the matter was heard before a different judge and this time the application was defended. In the light of allegations of sexual abuse (which had been rejected following investigation in England) made by the applicant’s former wife, a new report was ordered to be prepared quam primum by an advocate. The order stated that a named advocate was to enquire into and report on all the circumstances of the children and the proposed arrangements for their care and upbringing, with particular reference to the question of access. The applicant appealed this order but leave to appeal was refused on 1 September 1994. The applicant stated that he had to appear in person as his lawyer would not act. 34.     An advocate, Ms J., was appointed on 27 September 1994 to carry out enquiries and submit a report. The advocate visited the mother at home on 22 October 1994 and on 23 January 1995, and saw the children alone on 22 October 1994 and 31 January 1995. She spoke to the applicant on the telephone at the beginning of November and arranged to see him on 11   November 1994, when they spoke for three hours. On 21   November 1994, the advocate visited the doctor, Dr C., who had reported on the children in the family proceedings in England, seeing the videos of meetings and also the social worker, Mrs T., involved with those proceedings. She visited the teachers of the younger children and saw the guidance teacher of the oldest child on 5 December 1994. On 12 January 1995, she spoke to Mrs N., a Scottish social worker involved with the family from June 1994, when the mother’s doctor had made a referral for the family to be assessed as a matter of urgency by the Royal Hospital for Sick Children, Edinburgh, due to concerns that the children were showing disturbed behaviour. She noted that Mrs N. had talked to the social worker Mr P., who had told her that only PM. had told him that he did not want to see the applicant. The hospital team had not completed its assessment of the children due, inter alia , to the mother’s failure to respond to an invitation for a further interview. The advocate also incorporated in her report the report of May/June 1994 prepared for the Official Solicitor by the social worker Mr P., who had carried out two interviews with the children, two interviews with the mother and interviews with the children’s head teacher and class teachers. The advocate submitted her report to the court on 31 January 1995. 35.     The advocate’s report recounted the history of the proceedings and her own contact with the children, their mother and the applicant. It concluded: “This is a complex case. One fact that I think is established is that these children were found by a number of professionals ... in the period 1992 and 1993 to be under stress. What was never established to anyone’s apparent satisfaction was the reason for that. It seems to me from my investigations ... that the stress is likely to have been brought on by their parents’ relationship and the way that impinged on them. I think it is also most probable given the children’s (particularly <A.>’s) accounts of being belted by the <applicant> that that behaviour was at least part of the cause of their stress. I accept the <applicant’s> point that the children’s stance may have been influenced a great deal even if only indirectly by the fact that they live with and now rely on <their mother>. I have to give the children some credit however particularly at their age for knowing their own minds. They seem to have quite clearly determined to communicate to me both by words and deed that they did not wish to see their father and that they were in <A.’s> words ‘better with their mother than they were with both of them’. ... The question is what is the best way forward for them ... . The <applicant> however accepts that at this stage some eighteen months since the order and since he last saw them that it would not be appropriate for him to have the access that was ordered in June 1993. It would not be in their interests for him simply to turn up and take them over the times ordered. If there were to be access it would have to be as he acknowledged built up over time starting with supervised access of some sort possibly with some sort of counselling. ... I also accept to some extent what he suggests to the effect that the <mother> has made it her business to ensure the children will not see him. What is difficult to get to the bottom of is her motive. I think I accept that she is motivated by what she believes is in the best interests of the children even if she may on occasions be misguided. I think she has not always told the truth ... . Effectively she did not want to do anything to make access work. She was only keen to take those steps which she had to show that it would not work. ... The <mother> has also been good at passing certain anxieties which could perhaps have been kept from ... the children whether deliberately or otherwise <Her suspicion that the applicant had killed the children’s guinea pig, that they were being tracked down by a private detective> ... She has thus instilled fear in the children which she has fuelled by changing their Christian names ... . ... I also accept that some of the evidence I heard and saw appeared to contradict the <mother’s> absolute view that the children were always terrified about seeing the <applicant>. It may be that my only role in this Petition is to report to your Lordship on the circumstances of the children and I think I have done that in perhaps more detail than might be desired. If I am to give a recommendation with regard to disposal of this Petition it is clear as stated above that it would not be in the best interests of the children that it be immediately granted in the terms sought. I am not clear if I am expected thereafter to give a view as to whether any access should be awarded in this or any other Process. If I were to be expected to do so it would clearly be the most difficult task. On the one side I accept that the <mother> has managed to manipulate the situation to a great extent and has deliberately flouted the English order and kept the children from their father for eighteen months. I also accept that it is generally thought to be preferable, other things being equal, for children to grow up seeing both parents ... . But if I were to have to give a view I think I would have to allow myself to be influenced by what I saw of these children and of their parents. The <applicant> appeared to have an obsessive personality and be particularly obsessed by his relationship with the <mother>. His attitude and intensity would be wearing on anyone including his children. Further I did gain the impression even at this stage that he was more interested in the <mother> than the children. The <mother> was certainly pleasant in demeanour even if she was obviously much more determined and hardnosed than she appeared. She certainly had manipulated the situation effectively. But ultimately I think the only course which it would be in this case appropriate to take would be to listen to and observe the children. They not only told me and meant it ... that they did not wish to see their father. They also seemed ... to be genuinely much happier than they had been and to be very much more settled and confident than they ever have been. It would be unfortunate if this were to be disturbed by a further attempt to re-establish a relationship with their father ... particularly when it seems in all the circumstances that it would probably be unsuccessful. For these reasons ... I would humbly recommend ... with some hesitation, that the children be allowed to continue as they are and not be asked to go through further arranged visits with their father at this stage.” 36.     Following extended discussion and correspondence between the applicant and his legal advisers, on 11 May 1995 the applicant applied, it appears with the assistance of a lawyer, for a hearing of his petition which the court on 16 May 1995 listed for June 1995. On 29 May 1995, the applicant applied for leave to amend the order sought by him - firstly, to insert a plea that the mother’s answers should be rejected and the orders sought by the applicant be granted in full and, secondly, for an order that the mother deliver the children into the care and control of the applicant between 9 am and 7 pm on one weekday forthwith, and on every second weekend thereafter between 9 am on Saturday until 7 pm on Sunday, and between 9 am and 7 pm on one weekend day every four weeks after the said initial access period. This arguably would have had the effect of increasing the contact from two out of four weekends to three out of four weekends. 37.     On 14 June 1995, the mother applied for an order withdrawing her answers to the applicant’s petition, which was unopposed by the applicant and granted by the court on 16 June 1995. 38.     On 22 June 1995, an order was made by the court allowing the applicant’s petition to be amended and an order for contact was made in the amended terms. 39.     On 5 September 1995, the applicant commenced proceedings seeking to have the mother punished for contempt for failure to comply with the order of 22 June 1995. On 25 September 1995, the mother applied for the rescission of the order of 22 June 1995 on the basis that it was incorrect because it was at variance with the order of June 1993, lacked clarity and contained material errors. 40.     The applicant returned to the High Court in England requesting that the original order of June 1993 be varied. This approach was taken on the basis that the Court of Session could not refuse to enforce a fresh order. However, given the change in circumstances, the applicant decided in December 1995 that the chances of getting any court to enforce the order of 15 June 1993 were remote, and he decided to withdraw the action for enforcement. 41.     On 31 October 1995, the mother applied to the courts in England for an order removing proceedings to Scotland and, on 7 November 1995, the applicant applied again for a contact and/or residence order. The mother mistakenly lodged her application with the County Court that issued the original contact order, which on 24 November 1995 declined to hear the matter as it was now a High Court case. In a judgment handed down on 31   January 1996 by the High Court, Mr Justice Singer found it appropriate that the decisions as to contact be considered by the Scottish courts, and made an order under section 2(A)4 of the 1986 Act. This decision was taken with particular regard to the statement by the former wife’s Scottish lawyers that they could issue proceedings within a week in Scotland to determine custody and contact. The children were however to remain wards of court and it would be open to the applicant to apply to lift the stay on proceedings in England if the proceedings in Scotland were not pursued. The judge noted that the applicant claimed that he would be disadvantaged by the change of jurisdiction, as he was not conversant with Scottish procedures and as it would be more expensive for him to travel to Scotland for hearings and to consult with lawyers. However, he found that the mother and children were firmly settled in Scotland and that any difficulties posed by the mother in filing evidence or co-operating with interim orders would be more speedily dealt with if the proceedings were before the Scottish courts. He commented that to some extent the Scottish courts had already entered into the merits and that the reporter, who had been unclear as to her role, may have gone beyond her remit in assisting the court in its enforcement role when indicating that the June 1993 order was not one which she would subscribe to. 42.     On 16 April 1996, the mother commenced proceedings in the Court of Session in which she sought an order that there should be no contact between the children and the applicant. The applicant sought an order for contact by a defence lodged on 29 April 1996. A hearing was set down in Scotland for November 1996. 43.     On 19 July 1996, the order of 22 June 1995 was rescinded by the Scottish court on the joint application of the mother and the applicant. 44.     On 23 September 1996, the applicant applied for interim contact, which application came before the court on 27 September 1996 but was not proceeded with by the applicant’s counsel. The hearing set for November 1996 was deferred by agreement of both parties, following the mother’s voluntary co-operation in seeing a psychologist, allowing the children to be seen by the psychologist and permitting the applicant to send the children cards and presents. 45.     On 27 May 1997, an order was made by consent that the applicant should have contact as agreed between the applicant and his former wife and as consented to by the children. The applicant stated that as a result he has had indirect contact on a handful of occasions when either the applicant’s sister or sister-in-law were allowed to see the children and convey messages, an indirect means of getting letters, presents and pocket money to the children and, very recently, via e-mail. A contact meeting was arranged, for the first time, since June 1993, for the afternoon of February 2000. II.   RELEVANT DOMESTIC LAW AND PRACTICE Contact orders 46.     In determining applications for contact, as with any question with respect to the upbringing of a child, the courts’ paramount consideration is the welfare of the child - section 1(1) of the Children Act 1989 (“the 1989 Act”) for England and Wales and sections 3(2) of the Law Reform (Parent and Child) Act 1986 and subsequently section 11(7) of the Children (Scotland) Act 1995 for Scotland. The case-law recognises that the rights of the parents should only be interfered with when required by the welfare of the child (e.g. In re K.D. [1988] A.C. 806) and that it is almost always in the interests of the child that he or she should have contact with the non-custodial parent where the parents are separated (e.g. Re H [1992] 1 FLR 148, Re R [1993] 2 FLR 762, Re P (Contact: Supervision) [1996] 2 FLR 314). Enforcement of contact orders 47.     The courts may issue orders relevant to altering the residence of the child or the general powers of enforcement available in respect of failure to comply with a court order. In particular, they can commit a parent to prison or sequester their assets. 48.     The Court of Appeal has stated that the courts should not hesitate to use their powers of enforcement where it will overall promote the welfare of the child but that cases may arise, if infrequently, where a court may be compelled to conclude that in the existing circumstances an order for immediate direct contact should not be ordered where to do so would injure the child (Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124). Powers and means of tracing children 49.     The County Court has power pursuant to section 34 of the Family Law Act 1986 to authorise an officer of the court or police constable to take charge of a child and deliver him or her to a person to whom an order requires that the child be given up for, inter alia , purposes of contact. 50.     The High Court may make a “seek and find” order, requiring that the Tipstaff find the relevant child and take him or her into custody for the purposes of delivering as directed by the court; or a “seek and locate” order requiring that the child be located only. The Tipstaff is a court official who executes orders of the Court. He does not fulfil the role of an investigator or enquiry agent. It is not his function to set up independent lines of enquiry of his own. The Tipstaff acts on information provided to him by the parties in a case and will be assisted by the police, including a special department of New Scotland Yard which conducts investigations on his behalf. 51.     The orders that the High Court makes depend on the nature of the application made to the court by a party in the case and on the evidence provided. The court does not determine what order to make independently of this. 52.     The types of order include : i)   permitting publicity, through the media, about the child and the fact that there is a court order trying to locate the child; ii)   requiring any one who has relevant information about the child’s whereabouts, to disclose it to the Tipstaff, and the Court; and iii)   requesting the disclosure of addresses from Government departments. 53.     The Official Solicitor is Official Solicitor only to the Supreme Court of England and Wales (section 90 of the Supreme Court Act 1981). He or she has no legal powers or role in Scotland nor any independent power to enforce any order, any such step having to be taken through the court and subject to the court’s control. The court can invite the Official Solicitor to act for children but cannot require him or her to do so. When the Official Solicitor is invited to act as guardian ad litem for children in proceedings he or she does not have any role independent of the proceedings, only being there to represent the children in those proceedings. He or she collects evidence and participates in the proceedings as considered appropriate. The Official Solicitor is not in the position of a court welfare officer and is not part of the social welfare authorities. Relationship between the jurisdictions of England, Wales and Scotland. 54.     The Family Law Act 1986 (“the 1986 Act”) confers on the court dealing with the matrimonial affairs the primary jurisdiction over the granting of children orders except where it considers it would be “more appropriate” for matters to be determined in another part of the United Kingdom (sections 2A(4) and 13(6)). 55.     Section 25 of the 1986 Act provides for the recognition of children orders made in any part of the United Kingdom. The procedure requires the court which made the order to send the relevant documents to the appropriate court in the other part of the United Kingdom, where the prescribed officer of the receiving court on receiving the certified order must forthwith cause the order to be registered. The new court in which the order is registered has the “same powers for the purpose of enforcing the order as it would have if it had itself made the order” (section 29). The decision of how to enforce the order must depend on what “will overall promote the welfare of the child” (Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124). In balancing the competing interests of those involved, the courts retain jurisdiction to refuse an order if satisfied, for example, that enforcement would result in physical or moral injury to the child (Woodcock v. Woodcock 1990 SLT 848 at 853B). THE LAW I.   Article 8 of the Convention 56.     The applicant submitted that the authorities in England and Scotland failed, in their procedures and decisions, effectively to enforce his right to contact with his three children who were living with their mother, who had failed to comply with court orders granting him contact. He alleged a violation of Article 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 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 disputed this contention. A.   Applicability of Article 8 of the Convention 57.     The applicant’s complaints concerned his alleged inability to secure contact with the three children of his marriage from 1993 onwards. It is not disputed that these matters concern “family life” within the meaning of Article 8 of the Convention and that this provision is applicable. B.   Compliance with Article 8 of the Convention 1.   The applicant’s submissions 58.     The applicant submitted that the authorities in England and Scotland were under an absolute responsibility to enforce the order of 15 June 1993 which gave him defined rights of access to his children. He considers that they did not take appropriate steps to fulfil this responsibility and failed to apply any coercive measures in face of the mother’s persistent failure to comply with court orders. In England, he stated that the initiative was left to him to seek repeated hearings and orders, requiring steps to be taken to locate the mother and children after the mother absconded from their last known address. The Tipstaff, who was entrusted with this task by the High Court, either did not use all his powers or did not have sufficient powers. There was also delay in the court informing him of the whereabouts of the mother, when her location in Scotland became known to it, which delayed his ability to commence enforcement proceedings in Scotland. There were, in his view, no accessible or coherent procedures for enforcing the English court order in Scotland. The Scottish courts failed promptly to enforce the court order once it had been registered and began a re-investigation of contact issues, which delayed matters considerably. 59.     The applicant complained that the lack of expedition by the courts in reacting to the flagrant breach of his rights resulted in further difficulties being caused to him due to the effluxion of time. It allowed the mother to change address several times and also, as the children grew older, it meant his chances of enforcing contact became more difficult, and finally, impossible. He submitted that it should not have been for him to choose from a range of applications and remedies. Once he had presented the courts with evidence of the breach of his rights, it should have been the duty of the authorities to track down the mother, bring her before an appropriate forum and apply an effective solution, which should have included as appropriate re-considering the access or residence of the children, as well as the threat, at least, of committal for contempt. 2.   The Government’s submissions 60.     The Government accepted that the State’s duty under Article 8 of the Convention entailed the positive obligation to ensure that there was an effective and accessible framework available to the applicant for protecting and securing the right to respect for his family life, including contact with his children. In making decisions within that framework, there was an obligation on the authorities to pay proper regard to the rights and interests of all the individuals concerned, in particular, those of the children. There must however, in their view, be a wide margin of appreciation accorded to the State in respect of the framework chosen to secure Article 8 rights and the individual decisions of the domestic authorities pertaining to those rights. 61.     The Government submitted that the Family Law Act 1986 provided a clear and coherent scheme for the enforcement of orders in differing jurisdictions. The authorities in both England and Scotland took the appropriate steps to fulfil their responsibilities in this regard. Appeal procedures were available, if the applicant disagreed with the court orders, but he only availed himself of this once. The applicant was able to ask the courts in England for the necessary orders to locate the mother and children, and his applications were heard expeditiously. Furthermore, it was a reasonable exercise of the discretion of the Scottish courts to order a report to ensure that enforcement of the order would not result in physical or moral injury to the children. The case required careful consideration and sensitive handling to prevent any further damage to the children. 62.     They pointed out that the applicant had contributed to any lapse of time in the proceedings. He could have asked earlier for the High Court to order government agencies to provide t