CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 juin 2004

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Pellonpää , President ,   Sir   Nicolas Bratza ,   Mrs   V. Strážnická ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Mr   J. Borrego Borrego, judges , and Mrs F. Elens-Passos , Deputy Section Registrar , Having regard to the above application lodged on 30 September 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows:                 THE FACTS The applicants, B and L, are United Kingdom nationals, who were born in April 1947 and August 1968 respectively and live in Warrington. They are represented before the Court by Liberty, London. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant, B, married A and this marriage ended in divorce in 1987. B and A had a son together, C. The first applicant then married D. The first applicant and D separated in August 1994 and the divorce was finalised on 9 July 1997. The second applicant, L, married C, the first applicant’s son from his first marriage. The first applicant and the second applicant were therefore father-in-law and daughter-in-law. The second applicant and C separated in 1995 and their divorce was finalised on 8 May 1997. The second applicant and C have a son together, W. The first applicant is, therefore, W’s grandfather. A relationship developed between the first and second applicants in 1995 after C had left the second applicant’s matrimonial home. The applicants have been cohabiting since 1996. W lives with the applicants and only has sporadic contact with his father, C. W now calls the first applicant “Dad”. The applicants plan to adopt W which is permitted by domestic adoption law. In a letter dated 29 May 2002, the first applicant wrote to the Superintendent Registrar of Deaths and Marriages at Warrington Register Office to inquire about whether he could marry the second applicant. In a letter dated 13 June 2002, the Superintendent Registrar stated that under the relevant domestic legislation, it would be impossible for the applicants to marry unless A and C were both dead: “... The only circumstances a marriage could be allowed between yourself and [L] would be if you had both attained the age of twenty one and you could produce evidence of the death of your son and his mother (your first wife).” The applicants subsequently sought legal advice on whether there was any remedy against the decision of the Superintendent Registrar but were advised by counsel that no remedy existed since the basis for the decision was primary legislation, namely, the Marriage Act 1949 as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986.       B.     Relevant domestic law and practice 1.     The Marriage Act 1949 Section 1 of the Marriage Act 1949, as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986, (“the 1949 Act”), provides that: “... (4)     Subject to subsection (5) of this section, a marriage solemnized between a man and any of the persons mentioned in the first column of Part III of the First Schedule to this Act or between a woman and any of the persons mentioned in the second column of the said Part III shall be void. (5)     Any such marriage as is mentioned in subsection (4) of this section shall not be void by reason only of affinity if both parties to the marriage have attained the age of twenty-one at the time of the marriage and the marriage is solemnized– ... (b)     In the case of a marriage between a man and the former wife of his son, after the death of both his son and the mother of his son; (c)     In the case of a marriage between a woman and the father of a former husband of hers, after the death of both the former husband and the mother of the former husband; ...” Part III of the First Schedule to the 1949 Act contains lists of persons between whom marriage is prohibited. The first column referred to in section 1(4) of the Act includes the former wife of a man’s son and the second column includes the father of a woman’s former husband. The 1949 Act contained an absolute prohibition on marriages between former father-in-law and daughter-in-law until section 1(5) was introduced by the Marriage (Prohibited Degrees of Relationship) Act 1986 (“the 1986 Act”). By virtue of section 1(3) of the 1949 Act (as amended), marriages between former step-parents and step-children are not void if both parties have attained the age of 21 and the younger party was never “a child of the family” in relation to the other party. The 1949 Act does not stipulate that marriages between an uncle and niece or an aunt and nephew are void in cases where there is no consanguinity between the two parties. 2.     Proposals for reform of the law Prior to the enactment of the 1986 Act, a report, entitled “No Just Cause: Affinity: Suggestions for Change” was drawn up in 1984 by a group appointed by the Archbishop of Canterbury, including members of the House of Lords, on the question of the prohibition of marriages on the grounds of affinity. This report suggested some of the amendments to the law made in the 1986 Act. A report drawn up by the majority concluded that: “Most, perhaps, all, members of the Group started from an intuitive reaction that it was not only unlawful to marry one’s mother-in-law or father-in-law, but also that it was undesirable, and perhaps sinful and perilous. But as we studied and discussed the accumulating material we gradually came to recognise that the prohibition is based simply on tradition and cannot now be justified on any logical, rational or practical ground. The experience of other states where there has never been such a prohibition provides a strong and persuasive argument for abolishing these impediments on marriage. In our view, the retention of these legal impediments is not essential to the maintenance of healthy and stable relationships within the extended family. ... The younger person in the above lists will scarcely ever have been a child of the family of the older person before the younger person had attained the age of 18. Moreover, he or she will also have married (at least once) and for that ceremony the law and society will have treated him or her as having had the capacity and maturity to marry. Thus our principal concern of wishing to afford some protection to the younger person in those circumstances would be satisfied if the existing legal impediments preventing a lawful marriage being solemnised between a man and a woman and his or her affine in classes C and D [parent-in-law and child-in-law] were removed.” The minority report recommended the “retention of the impediment on marriage between parent-in-law and child-in-law” on the basis that it raised the same difficulties as step-parent and step-child, namely it “would condone sexual rivalry between father and son, or mother and daughter, which, within the close confines of the family, would be destructive of the father and son, or mother and daughter, relationships”: “... In addition ... it would deprive the child-in-law of his or her safety of place as a child in the new family into which he or she marries. When for instance a son brings his wife to his father’s home, there is an underlying assumption that the daughter-in-law will assume a role in relation to her father-in-law which is exempt of sexual expectations. To admit the possibility of a future marriage between parent-in-law and child-in-law would be to undermine assumptions which make for the safety and comfort of the adult family.” During the consideration of the bill which became the 1986 Act in the House of Lords, Lord Denning unsuccessfully proposed an amendment to the 1949 Act which would remove the impediment to a parent-in-law marrying his or her child-in-law. He argued that this was necessary in order to make the law consistent since the bill would remove the impediment to a step-parent marrying his or her step-child and the case of a parent-in-law and child-in-law was, if anything, less problematic. However, this proposed amendment was not adopted.       3.     Exemption by personal Act of Parliament It is possible for a marriage between a former parent-in-law and child-in-law to be permitted in individual cases by a personal Act of Parliament. The personal Act effectively exempts the individuals from the application of a statutory prohibition on marriage. Whether such an Act is passed or not is at the discretion of Parliament. Such personal Acts has been passed several times in the past although no Act of this nature has been sought or passed since 1987. For instance, in the Valerie Mary Hill and Alan Monk (Marriage Enabling) Act 1985 , Parliament permitted the proposed marriage between Valerie Hill, the mother of Alan Monk’s first wife, and Mr Monk. At the time of this personal Act, the 1986 Act had not yet been passed and, therefore, there was an absolute prohibition under the 1949 Act on marriage between parents-in-law and children-in-law. In considering the personal bill, several members of the House of Lords noted that the facts of the case were not “exceptional”. The resulting personal Act sets out the facts of the case and continues: “ ... (8) Valerie Mary Hill and Alan Monk regard the legal impediment to their marriage as imposing hardship on them, and as serving no useful purpose of public policy in the particular circumstances of their case: (9)     They accordingly desire that the impediment should be removed in their case: (10)     The object of this Act cannot be attained without the authority of Parliament: Therefore Valerie Mary Hill and Alan Monk most humbly pray that it may be enacted, and be it enacted, by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:– 1.     Notwithstanding anything contained in any enactment or any rule of law to the contrary, there shall be no impediment to a marriage between Valerie Mary Hill and Alan Monk by reason of their relationship of mother-in-law and son-in-law, and no marriage hereafter contracted between them shall be void by reason of that relationship. ...” There are no established criteria for the granting of a personal Act of Parliament in order to permit a marriage otherwise prohibited by the 1949 Act. There is no investigation into the facts as submitted by the individuals in question. The costs of obtaining a personal Act of Parliament are GBP   200 at the First and Third Reading of the bill in each House of Parliament, amounting to GBP 800, plus the fees of a “Roll A” Parliamentary Agent, who is the only person permitted to promote a personal bill. Legal aid is not available for the costs of obtaining a personal Act of Parliament. This procedure of seeking a personal Act of Parliament in order to authorise an otherwise prohibited marriage was commented on by Viscount Davidson in the House of Lords in the following terms: “... Parliament has from time to time enacted laws enabling particular couples to marry, notwithstanding that they are related as step-parent to step-child or parent-in-law to child-in-law. I do not think that anyone has suggested that this is a particularly suitable way of deciding whether two people so related should be allowed to marry. It has been criticised as cumbersome, expensive and unseemly. In the Second Reading of the Sonia Ann Billington and Norbury Billington (Marriage Enabling) Bill, my noble and learned friend the Lord Chancellor said that it offended his sense of justice that the House should be asked to decide without evidence whether a couple should be enabled to marry ...” (Viscount Davidson, HL Hansard 9 December 1985, col. 59) 4. The Human Rights Act 1998 Section 4 of the Human Rights Act 1998 provides: “(1)     Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2)     If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ... (6) A declaration under this section ... - (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and (b) is not binding on the parties to the proceedings in which it is made.” Section 10 provides: “(1)This section applies if - (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right ... (2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.” The 1998 Act entered into force on 2 October 2000. COMPLAINTS The applicants complain under Articles 12 and 14 of the Convention that they are not permitted to marry. THE LAW The applicants, father-in-law and daughter-in-law, complain that they are not allowed to marry invoking Articles 12 and 14 of the Convention which provide as follows: Article 12: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” Article 14: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A.     Article 35 § 1 of the Convention: exhaustion of domestic remedies 1.     The parties’ submissions The Government submit that the applicants have not exhausted domestic remedies as required by Article 35 § 1 of the Convention as they have not taken proceedings for a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“the   HRA”). They argue that such proceedings would provide effective and sufficient redress and offer a significant chance of redressing the alleged breach. It provides a mechanism by which an individual can obtain an authoritative ruling from the domestic courts on the incompatibility of domestic legislation with Convention rights, on the basis of which he may look for speedy amendment of the legislation. In line with the purpose of Article 35, it gives the legislature the opportunity to correct problematic legislation with due regard to local conditions and, in view of the Court’s concerns to improve the handling of its increased caseload, respect for the principle of subsidiarity must take on especial   importance. In this case, if the courts found that the prohibition on the applicants’ marriage infringed Articles 12 or 14 they would be bound to make a declaration of incompatibility and, having regard to the practice so far under the HRA in respect of declarations of incompatibility issued by the courts it would be likely that the Government would introduce remedial legislation. The case of Hobbs v. United Kingdom , (no.63684/00, decision of 18   June   2002) can be distinguished on the basis that the pensions had been claimed in respect of deaths occurring before the HRA entered into force whereas in this case the applicants’ wish to marry is a continuing situation to which the HRA applies. The applicants submit that proceedings for a declaration of incompatibility do not provide a sufficient or effective remedy, referring to Convention case-law indicating that a recommendation for a change in law which was not legally enforceable cannot be regarded as effective. To be effective remedies also had to be independent of discretionary action by the authorities. In their submission, the remedy of a change of the law, both before and after the HRA, has depended on the exercise of executive discretion to table amending legislation whether in the form of a Bill or amending secondary legislation such as a remedial order. Neither then nor now could the procedure to change the law be initiated by the applicants or be legally enforced in any way. The applicants contend that the high degree of discretion involved in the process is reflected by the Government’s own phrasing in terms of expectations and likelihood. Section 10(2) of the HRA is only applicable, for example, where a Minister of the Crown considers that there are compelling reasons for proceeding under the section. The Joint Parliamentary Committee on Human Rights 7 th report also laid emphasis on the exercise of ministerial judgment in deciding whether or not to use the remedial order procedure. The applicants further disputed that the case of Hobbs (cited above) was distinguishable. The declaration of incompatibility was not shown in that case to provide an effective remedy for reasons which were equally applicable in their own situation. 2.     The Court’s assessment The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective ( e.g. Akdivar and Others v. Turkey, no. 21893/93, §§ 65-67, ECHR 1996-IV; Aksoy v. Turkey , no. 21987/93, §§ 51-52, ECHR 1996-VI). Insofar as the Government argue that the applicants should be required under Article 35 § 1 to seek a declaration that the legislation is incompatible with the Convention, the Court recalls that this would, in theory, provide for the possibility that pursuant to the declaration the Minister would take steps to amend the offending provision, either by a remedial order or by introducing a bill in Parliament. According to the information provided by the Government, such amendments have occurred in practice in a significant number of cases where declarations have been issued by the courts. The Court is, furthermore, very much aware of the subsidiary nature of its role and that the object and purpose underlying the Convention, as set out in Article 1 – that rights and freedoms should be secured by the Contracting State within its jurisdiction – would be undermined, along with its own capacity to function, if applicants were not encouraged to pursue the means at their disposal within the State to obtain available redress. The Court recalls, however, that it has found in previous cases that a declaration of incompatibility issued by the domestic courts to the effect that a particular legislative provision infringed the Convention cannot be regarded as an effective remedy within the meaning of Article 35 § 1. As stated in Hobbs v. the United Kingdom (dec.), no. 63684/00, ECHR   2002-...): “In particular, a declaration is not binding on the parties to the proceedings in which it is made. Furthermore, by virtue of section 10(2) of the 1998 Act, a declaration of incompatibility provides the appropriate minister with a power, not a duty, to amend the offending legislation by order so as to make it compatible with the Convention. The minister concerned can only exercise that power if he considers that there are ‘compelling reasons’ for doing so.” Similar reasoning was applied in Walker v. the United Kingdom (no.   37212/02 (dec.), 16 March 2004, and Pearson v. the United Kingdom (no. 8374/03 (dec.), 27 April 2004). The Government’s arguments, inter alia , concerning the differing factual basis of the Hobbs case, do not afford any basis for departing from this analysis in the present case. A remedy which is not enforceable or binding or which is dependent on the discretion of the executive falls outside the concept of effectiveness as established in the Convention case-law, notwithstanding that it may furnish adequate redress where it has a successful outcome. Consequently, the Court considers that the Government have failed to establish that either of the domestic remedies referred to is sufficiently “effective” so as to be capable of providing the applicants with redress for their complaint, and so as to require exhaustion under Article 35 § 1 of the Convention. The Court therefore rejects the Government’s preliminary objection. B.     The substantive complaints 1.     The parties’ submissions The Government accept that the prohibition on parents-in-law marrying children-in-law until their respective spouses are dead constitutes a limitation on the “capacity” to marry. The limitation is, however, permissible as one of the “national laws governing the exercise of this right” since it does not impair the very essence of the right and can be justified in the public interest. The Government submit that it is generally accepted in the Contracting States that some restrictions between degrees of consanguinity are justified, though rules differ. Similarly, most States have at some time restricted marriage between relationships of affinity, though their different views as to the prohibited degrees reflect national moral thinking. The restriction in this case was fully considered by the House of Lords in 1986 during the debate on the Marriage (Prohibited Degrees of Relationship) Act 1986. While a majority of 6 to 3 supported removal of the bar in the report “No Just Cause”, Parliament decided to follow the recommendations of the minority. The debates show that the bar was considered necessary to prevent the risk of undermining the foundations of the family and the risk of altering relationships between affines by removing impediments to their marriage, with consequent damage to the family. The Government further point out that the restriction is not absolute as marriage can take place after the respective prior spouses have died and may be possible, where exceptional reasons are shown, by way of a personal Act of Parliament, in which procedure the individual facts of the case are taken into account. Also, a considerable number of other countries maintain an absolute or conditional prohibition on such marriages (as far as they can establish some 19 Contracting States).   They submit that in a matter of national moral sensitivity the Court should afford Contracting States a wide margin of appreciation. The applicants submit that the restriction on their right to marry is disproportionate. They note that the majority in the report before the House of Lords were in favour of lifting the restriction as serving no purpose. Even the minority were more concerned about the relationship of step-father and step-daughter, in which respect the prohibition was in the end weakened. This discloses, in the applicants’ view, no sensible distinction. They assert that in their own case both relationships with their previous partners had failed at the time they commenced their relationship with each other and there could be no suggestion of any situation of sexual rivalry between father and son. Nor is there any ground for objection arising from the impact on the second applicant’s son, since he actively supports their desire to marry and wants to be part of a “normal” family. The applicants submit that the Government’s arguments that the limitation is not absolute are fanciful as it either requires a father to outlive a son while a personal Act of Parliament requires money and stamina to pursue legislation in circumstances where no criteria exist for showing when an application may be successful. They note that a large number of Contracting States allow for such marriages and amongst the nineteen cited as prohibiting them a large proportion provide for permission to be given.     2.     The Court’s assessment Having regard to the applicants’ complaints and the parties’ submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. The remainder of the application, as regarding the length of proceedings, cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. For these reasons, the Court unanimously Declares the application admissible, without prejudging the merits of the applicants’ complaints.   Françoise Elens-Passos   Matti Pellonpää   Deputy Registrar   President