EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 16424/90

                     Antony and Margaret McMichael

                                against

                          the United Kingdom

                       REPORT OF THE COMMISSION

                      (adopted on 31 August 1993)

                           TABLE OF CONTENTS

                                                                 page

I.    INTRODUCTION

      (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.  The application (paras. 2-4). . . . . . . . . . . . . . . 1

      B.  The proceedings (paras. 5-14) . . . . . . . . . . . . . . 1

      C.  The present Report (paras. 15-19) . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 20-95). . . . . . . . . . . . . . . . . . . . . . . . 3

      A.  Particular circumstances of the case

          (paras. 20-57). . . . . . . . . . . . . . . . . . . . . . 3

      B.  Relevant domestic law and practice

          (paras. 58-95). . . . . . . . . . . . . . . . . . . . . . 8

III.  OPINION OF THE COMMISSION

      (paras. 96-131) . . . . . . . . . . . . . . . . . . . . . . .15

      A.  Complaints declared admissible

          (para. 96). . . . . . . . . . . . . . . . . . . . . . . .15

      B.  Points at issue (para. 97). . . . . . . . . . . . . . . .15

      C.  Article 8 of the Convention

          (paras. 98-106) . . . . . . . . . . . . . . . . . . . . .15

      D.  Article 6 para. 1 of the Convention

          (paras. 107-121). . . . . . . . . . . . . . . . . . . . .17

      E.  Article 14 of the Convention

          (paras. 122-127). . . . . . . . . . . . . . . . . . . . .19

      RECAPITULATION

      (paras. 128-131). . . . . . . . . . . . . . . . . . . . . . .20

      CONCURRING OPINION OF MR. LOUCAIDES . . . . . . . . . . . . .22

      PARTIALLY DISSENTING OPINION OF MRS. LIDDY

      (joined by Mr. J. C. SOYER) . . . . . . . . . . . . . . . . .23

APPENDIX I       HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .24

APPENDIX II      DECISION ON THE ADMISSIBILITY. . . . . . . . . 25-40

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicants are Antony and Margaret McMichael, British

citizens born in 1938 and 1954 respectively and resident in Glasgow.

They are represented by Peter McCann, a solicitor practising in

Glasgow.

3.    The application is directed against the United Kingdom. The

Government are represented by their Agent, Mrs. Audrey Glover of the

Foreign and Commonwealth Office, London.

4.    The case, insofar as declared admissible, concerns the

applicants' complaints that they were unable to see the confidential

reports and other documents submitted before the Children' Hearings and

the complaints of the first applicant that as a natural father (prior

to his marriage to the second applicant) he had no right to legal

custody of A. or to participate in the proceedings and that he was

discriminated against in these respects. It raises issues under

Articles 6, 8 and 14 of the Convention.

B.    The proceedings

5.    The application was introduced on 11 October 1989 and registered

on 10 April  1990.

6.    On 3 December 1990, the Commission decided to communicate the

application to the respondent Government for their observations on the

admissibility and merits of the application.

7.    The Government submitted their written observations on

16 May  1991.  The applicants submitted their written observations in

reply on 5 August and 25 September 1991.

8.    On 7 April 1992, the Commission decided to invite the parties to

a hearing on the admissibility and merits of the application.

9.    On 23 July 1992, the Commission granted the applicants legal aid.

10.   At the hearing, which was held on 8 December 1992, the applicants

were represented by Mr. Peter McCann, solicitor. The Government were

represented by Ms. Diana Brookes, Acting Agent, Mr. T. Dawson,

Solicitor General for Scotland, Mr. D. Ogg, counsel and

Mr. J. W. Sinclair and Mr. J.L. Jamieson as advisers.

11.   On 8 December 1992, the Commission declared the application

partly admissible, partly inadmissible.

12.   The parties were then invited to submit any additional

observations on the merits of the application.

13.   On 27 January 1993, the applicants made further submissions. The

Government's further observations on the merits were submitted on

25 May 1993.

14.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case.  Consultations with the parties took place between

February and May 1993. In the light of the parties' reactions, the

Commission now finds that there is no basis on which a friendly

settlement can be effected.

C.    The present Report

15.   The present Report has been drawn up by the Commission  in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           MM.   C.A. NØRGAARD, President

                 F. ERMACORA

                 A. WEITZEL

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 J.C. SOYER

                 Mrs. G.H. THUNE

           Sir   Basil HALL

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

16.   The text of the Report was adopted by the Commission on

31 August 1993 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

17.   The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

      1)  to establish the facts, and

      2)  to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

18.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

19.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    Particular circumstances of the case

20.   The second applicant gave birth to a son A. on 29 November 1987.

The first applicant, who was living with the second applicant, was

later named as the father on the birth certificate.

21.   The second applicant had a history of recurrent mental illness.

She was first ill in or about 1973 and was admitted to psychiatric

hospital on a number of occasions.  There was a recurrence of her

illness shortly after A.'s birth.  As a result, the Social Services of

Strathclyde Regional Council ("the Council") took A. into care on 11

December 1987 under a Place of Safety Order.

22.   On 17 December 1987, the case was brought before a Children's

Hearing.  The second applicant was present.

23.   The ground of referral to the Children's Hearing was -

      "that a lack of parental care is likely to cause unnecessary

      suffering or seriously to impair his health or development"-

      Section 32 (2)(c) of the Social Work (Scotland) Act 1968 ("the

      1968 Act").

24.   The statement of facts given in support of the ground of referral

stated inter alia:

      (1)  That ... was born on 29 November 1987 (as far as can

      be ascertained), and presently is in the Special Baby Care Unit

      of the Southern General Hospital, Glasgow...

      (2)  that the suffers from a major psychiatric

      illness.

      (3)  that the refuses to take medication to

      stabilise her condition when not an in-patient at psychiatric

      hospital.

      (4)  that the has required to be admitted to

      psychiatric hospital on emergency basis under the Mental Health

      (Scotland) Act 1984 on <5 June 1986, 5 December 1986 and

      31 December 1986>.

      (5)  that due to her psychiatric condition the

      is unlikely to be able to care adequately for the child."

25.   At the hearing on 17 December 1987 the ground of referral and

statement of facts were put to the second applicant.  She denied the

ground of referral.  The Children's Hearing accordingly instructed the

Reporter to apply to the Sheriff for a finding on whether the ground

of referral was established.

26.   The Children's Hearing on 17 December 1987 also issued a warrant

for continued interim detention of A. in a place of safety pending

determination of the merits of the case.  Subsequent warrants for

continued detention were granted by a further Children's Hearing on

5 January 1988 and by the Sheriff Court at Glasgow on 21 January 1988.

27.   On 23 December 1987, A. was discharged from hospital and taken

to foster parents at Greenock. The second applicant discharged herself

from hospital.  Arrangements were made for her to be taken  3 times a

week for access visits to A. at the foster home, under the supervision

of the Council.

28.   It was decided by the Council at this stage that the first

applicant should not be included in the access arrangements.  The

principal reason for this was that at this time the second applicant

still  denied that the first applicant was the father.  Other reasons

were his aggressive and threatening attitude and his refusal to give

information about his background.

29.   The second applicant complained about the placement in Greenock

and inadequacy of access arrangements.  At first she accepted the

exclusion of the first applicant, but she and the first applicant

subsequently complained about it. The second applicant failed to appear

for four of the access visits between 31 December 1987 and

18 January 1988.

30.   On 21 January 1988 the Reporter's application for a finding on

the grounds of referral was heard in the Glasgow Sheriff Court.  The

second applicant was present and represented.  The first applicant was

also present.  Evidence was heard from  medical, nursery and social

work witnesses and the first and second applicants both gave evidence.

At the conclusion of the hearing the Sheriff found the grounds of

referral established.  He remitted the case to the Reporter for him to

arrange a Children's Hearing to consider and determine the case.  The

second applicant did not appeal to the Court of Session.

31.   On 27 January 1988, the Council held a child care review of the

case, at a meeting at which the applicants were both present.  A

consultant psychiatrist advised that the second applicant was seriously

mentally ill and would not accept treatment.  It was decided that in

view of this, access should be terminated, though this decision would

be reviewed if the second applicant had treatment and her mental state

improved.  The first applicant had also requested access at the

meeting, claiming that he was A.'s father.  Access was refused since

the second applicant maintained that he was not the father and in light

of his aggressive and threatening attitude.

32.   In February 1988, the applicant was admitted to hospital where

she remained until June 1988.

33.   On 4 February 1988, the Children's Hearing met to consider the

case.  The second applicant attended, with the first applicant as her

representative.  The Panel had a number of documents before it,

including a report on the child compiled by the Social Work Department

dated 28 January 1988 reviewing the history of the case and proposing

that A. continue to reside in the foster home.  These documents were

not produced to the applicants but the Chairman informed them of their

substance.

34.   At the conclusion of the hearing it was decided that it would not

be appropriate in the interests of A. to commit him to the care of the

applicants and made a supervision requirement under Section 44 (1) a

of the 1968 Act placing A. under the supervision of the Council subject

to the condition that he reside with the foster parents.  The decision

was based, inter alia, on the mental health of both applicants and the

aggressive and hostile nature of both applicants.  This decision did

not make any provision as to access.  In such circumstances the

presumption is that parents get reasonable access subject to

Section 20 (1) of the 1968 Act which empowers a local authority to deny

access where necessary for the child's welfare.

35.   The second applicant lodged an appeal, which was due to be heard

at the Sheriff Court on 29 February 1988.  She attended court, with two

nurses, apparently heavily sedated.  Following discussion, the Sheriff

asked if she would prefer to ask for a review by a Children's Hearing

of the supervision requirement rather than pursue her appeal.  The

second applicant agreed.

36.   A review was held by the Council on 27 April 1988 and was

attended by both applicants.  In view of the second applicant's

improved mental state it was decided to allow her supervised access

visits.  By this time, the second applicant had agreed that the first

applicant was A's father and on 18 February 1988, the first applicant's

name had been added to the birth certificate.  This did not give the

first applicant any parental rights.  At the review, the Council

decided not to grant him access until he gave them information about

his background which he had so far refused to do.

37.   On 24 August 1988, the first applicant's solicitors applied to

the Scottish Legal Aid Board for legal aid for an action in the Court

of Session to obtain custody or access.  The Board refused legal aid

on the ground that the action was incompetent since the Court of

Session had no power to lift the supervision requirement and would not

intervene in access disputes.  Counsel then advised the first applicant

that this decision was correct but that the best method of obtaining

access would be to get the Children's Hearing to review the supervision

requirement.

38.   On 20 September 1988, the Council held a further review. They had

held meetings with the first applicant to obtain background information

and made inquiries with his doctor and the police.  It was decided at

the review to allow both applicants access of 3 visits per week at a

Special Centre and give the applicants assistance in learning parenting

skills.  It was also intended that there should be access for one

24 hour period.  This intensive access was to last for 3 months after

which an assessment would be made.

39.   On 13 October 1988, the Children's Hearing held a review of the

supervision requirement.  The second applicant was present and the

first applicant was present, as her representative.  It had before it

a report by the Social Work Department dated 20 September 1988 updating

information on A. and outlining the proposed access arrangements.  This

report was not disclosed to the applicant's though the Chairman

informed them of its substance.  The applicants had submitted a

statement alleging inter alia that they had never had an opportunity

to show that they could care for A.

40.   After the hearing, it was decided to continue the supervision

requirement and to approve the access proposals.  The Hearing

considered that only time would show if rehabilitation was a viable

prospect and that the second applicant's mental health should be

closely monitored.

41.   The second applicant did not appeal to the Sheriff Court.

42.   The access period lasted from 4 October 1988 to 19 December 1988,

during which the applicants had approximately 23 access visits. The

social workers did not consider the visits to be a success.  In reports

dated 22 November 1988 by a health visitor and 23 November 1988 by a

doctor, it was stated that the applicants frequently argued before A.

and displayed aggression to the staff, with the result that they were

excluded from two child care centres.

43.   On 19 December 1988, a child care review was held, at which the

applicants were present.  It was decided to terminate access visits in

view of concern about the long-term effects on A. and the fact that no

obvious progress had been made in the applicants' ability to care for

A.  The Council also decided to investigate the option of freeing A.

for adoption.  The applicants appealed internally to the District

Manager of Social Services, who confirmed the decision by letter of

28 December 1988.

44.   Following the second applicant's application, the Children's

Hearing carried out a review on 20 June 1989.  The second applicant was

present with the first applicant as her representative.  A report by

the Social Work Department was before the Hearing further updating the

case. It described the access period and reported that A. was happy and

developing well and that prospective adopters were being sought.

45.   The applicants applied for access to be re-established.  The

Hearing considered that there was a conflict of interest between the

Council and the second applicant, and probably between parent and child

and decided that a safeguarder should be appointed to represent the

child's interests.

46.   The Safeguarder, appointed by the Hearing, interviewed, inter

alia, the applicants, the social workers, the foster-parents and the

police.  His report of 18 August 1989 stated, inter alia, that A. was

being adequately cared for by the foster parents and that it was

desirable that the second applicant should obtain a doctor's opinion

on her mental state.

47.   The adjourned Children's Hearing reconvened on 5 September 1989.

The applicants were present and the second applicant represented by a

solicitor.  The Safeguarder's report and other documents before the

Hearing were not disclosed to the applicants, but the Chairman informed

them of the substance.  The Safeguarder attended the hearing and

confirmed his view that A.'s best interests would be served by his

remaining in care.  The Hearing concluded that the supervision

requirement should continue and that there was nothing in what they had

heard to convince them that they should grant access.  They did not

take up the suggestion of obtaining an independent psychiatric report

on the second applicant.

48.   The second applicant appealed to the Sheriff Court on the

grounds:

      (a) that the applicants had not been informed of the substance

      of the documents produced at the hearing,

      (b) that the refusal of access was based on inadequate

      information, in particular the lack of up to date information as

      to the second applicant's mental health and

      (c) that an adjournment for the purpose of obtaining a

      psychiatric report had been refused.

49.   Ground (a) was apparently not pursued at the appeal hearing,

which took place on 4 October 1989.  The Sheriff decided that it would

have been appropriate to obtain a psychiatric report and remitted the

case to the Children's Hearing.

50.   A psychiatric report dated 29 September 1989 had been produced

at the request of the second applicant's solicitors.  This report

indicated that the second applicant suffered from a recurrent mental

illness but that this was in remission and if it recurred it could

respond satisfactorily to treatment as in the past.  The psychiatrist

considered access should be re-established and that A. should

eventually be returned to the applicants.

51.   A Children's Hearing to consider the report was to be convened

on 9 January 1990 but neither applicant attended or was represented,

the Hearing being informed that the second applicant had been declared

insane and admitted to hospital.  A further Hearing was held on

18 January 1990. Neither applicant attended or was represented.  The

Hearing concluded that the second applicant was not well enough to have

access to A. and that they could not see any future for A. with her.

A condition was added to the supervision requirement that there be no

access by the second applicant.  The second applicant did not appeal.

52.   On 1 February 1990, the Council lodged with the Sheriff Court a

petition for freeing A. for adoption.

53.   The applicants were married on 24 April 1990.  The first

applicant thereby obtained parental rights in respect of A.

54.   The petition was heard between 18 June 1990 and 27 July 1990.

The applicants refused to give their consent to adoption.  They were

present at the hearing and the second applicant represented by a

solicitor.  The documentary evidence before the Court had been

disclosed to the applicants.  Witnesses were heard and the applicants

given the opportunity to cross-examine them and lead their own

evidence.

55.   On 12 August 1990 the second applicant was re-admitted to

hospital. On 14 October 1990 the Sheriff decided that the applicants

were withholding their consent unreasonably.  He decided to dispense

with their consent and granted the order freeing A. for adoption. He

stated:

      "In my view, there is no escaping from the conclusion that both

      these parents are withholding their agreement unreasonably.  They

      are withholding their agreement because they are not parents who

      have begun to demonstrate their capacity to have custody.  [The

      second applicant] suffers from a grave mental illness which may

      at any time, unless appropriate medical treatment is taken,

      incapacitate her from looking after, not only a child, but

      herself.  Even when her illness is not to the degree at which

      hospitalisation is required, she has been demonstrated as

      incapable of the most elementary physical and emotional

      capacities in parenting.  The one capacity she does have, I

      accept, is the desire to be a parent, to have the child, but the

      accomplishment of that ambition is, I fear, demonstrated to be

      beyond her.  The incapacity of the father to behave normally as

      a parent to the child is established by the evidence of Mrs. K.

      and Mrs. M., whose testimonies support the findings in fact I

      have made relating to what happened on the access visits.  The

      child, now nearly three, has in fact, as an infant, rejected both

      his parents ...

      The [applicants] are objecting to the child being freed for

      adoption in order, and only in order, that they can have custody

      of him.  Such a conclusion can only be viewed with the utmost

      misgiving for the future of this child.  He is presently reared

      in a house by foster parents who have enabled him to withstand

      the traumas of these access visits by the [applicants].  It would

      be wholly contrary to his welfare for this present state which

      is one of uncertainty, to be prolonged and the possibility of his

      parents having his custody contemplated.  Neither his mother, nor

      [the first applicant], are interested in the welfare of the

      child.  They are incapable of distinguishing between the child's

      interests and their having possession of him.  A reasonable

      parent would give great weight to the welfare of the child.  The

      welfare of this child clearly does not lie with his being with

      his parents, and their opposition to the present application is,

      in my view, unreasonable.  Any objective view of their attitude

      and of their conduct, in my view, discloses its unreasonableness.

      Mrs. K., whose experience as a Health Visitor is extensive and

      impressive, and whose experience of the [applicants] in the

      course of this case was considerable and whose testimony I

      accept, gave her opinion of [the first applicant] at the end of

      the penultimate paragraph of her report produced and of the risks

      she feared to the child if he was involved with him.  Standing

      such a censure from such a source, which I accept as valid, his

      present attitude, viewed objectively, can, in my view, only be

      regarded as unreasonable ..."

56.   In December 1990 the applicants lodged an appeal to the Court of

Session.  They applied for legal aid and appear to have been granted

legal aid for the purposes of obtaining counsel's opinion.  Counsel

advised that an appeal had no prospect of success and legal aid was not

extended.  The applicants continued their appeal representing

themselves.

57.   Their appeal was dismissed by the Court of Session on

1 November 1991. The Court held that the Sheriff was justified in

concluding that  because of the mental health of the second applicant

and the first and second applicants' lack of understanding how properly

to care for a child, it would have been contrary to the best interests

of A. to return him to the applicants' custody.

B.    Relevant domestic law and practice

      Rights of parents

58.   Under Scots law, the nature of the rights enjoyed by parents in

relation to their children is governed by the common law.  In respect

of girls under 12 and boys under 14, parents enjoy inter alia,

      (1) the right of tutory which can be described as the right

      to administer the child's property and to act legally on

      behalf of the child;

      (2) the right of custody, which can be described as the

      right of the parent to have the child living with him or

      her, or otherwise to negotiate the child's residence and to

      control the child's upbringing;

      (3)  the right to access.

59.   The persons who may exercise parental rights are governed by the

Law Reform (Parent and Child) (Scotland) Act 1986 ("the 1986 Act").

      Section 2 (1) provides:

      "Subject to sections 3 and 4 of this Act -

      (a) a child's mother shall have parental rights whether or

      not she is or has been married to the child's father;

      (b) a child's father shall have parental rights only if he

      is married to the child's mother or was married to her at

      the time of the child's conception or subsequently."

60.   Under Section 3, any person claiming an interest may make an

application to the court for an order relating to parental rights and

where it is in the interests of the child the court may make such an

order.  A father of a child born out of wedlock may obtain parental

rights under this procedure by applying either to the Court of Session

or the local Sheriff Court.

      Compulsory Measures of Care

61.   The rules regarding compulsory measures of care in respect of

children are set out in Part III of the Social Work (Scotland) Act 1968

("the 1968 Act") supplemented by subordinate legislation.

62.   Under Section 20 of the 1968 Act, the local authority has a

general responsibility for promoting social welfare in its area.  It

has the duty to inquire into and tell the Reporter of cases of children

who may need compulsory measures of care.

63.   The Reporter is appointed under Section 36 of the 1968 Act by the

local authority.  Though employed by the local authority, he is

expected to exercise his judgment independently and is separate from

the local authority's social work department.  He may not be removed

from office without the consent of the Secretary of State.  His duties

include deciding whether a case should be referred to the Children's

Hearing and arranging such hearings when they are necessary.

      Children's Hearings

64.   Children's Hearings are the sittings of members of the children's

panel which decide whether a child requires compulsory measures of care

and if so, they may order such measures. Pursuant to Section 34 of the

1968 Act, a Children's Hearing consists of a chairman and 2 other

members drawn from the children's panel constituted under Section 33

of the 1968 Act.

65.   Section 33 and Schedule 3 provide for constitution of the

children's panel.  The Secretary of State appoints a children's panel

for each local authority area.  The members hold office for such period

as the Secretary of State specifies, but may be removed by him at any

time.

66.   The Children's Hearing may only consider the case of a child

where it has been referred to them by the Reporter and where certain

"grounds of referral" are established, either by agreement with the

child and his parent or by a court decision.

      The grounds of referral

67.   The Children's Hearing may only decide if compulsory measures of

care are appropriate where one of the "grounds of referral" applies to

the child, either by being accepted by the child and his parent or by

being established by a decision of the Sheriff.  The grounds, as set

out in Section 32 of the 1968 Act, include the following:

      "(c) lack of parental care is likely to cause him

      unnecessary suffering or seriously to impair his health or

      development".

68.   Thus, in the absence of agreement, a decision by a judge on the

grounds of referral after hearing appropriate evidence, is essential

before the Children's Hearing can consider the case.

69.   A parent has the right to attend at all stages of a Children's

Hearing.  "Parent" excludes the father of a child born out of wedlock

but includes a person who has been granted parental rights under

Section 3 of the 1986 Act.  A parent may be represented by any person

of his or her choice. Where the Chairman of the Children's Hearing

considers that there is a conflict of interest between child and

parent, he has the power to appoint a person known as a safeguarder to

represent the child.

      Procedure

70.   The Reporter is under a duty to notify the parents of a child of

a Children's Hearing giving at least 7 days' notice.  He also must

provide before the first hearing a statement of the grounds of

referral.

71.   At the first Children's Hearing, they must ascertain if the

grounds of referral are accepted by the child and his parents.  If they

accept, the hearing may proceed.  If not, they must direct the Reporter

to apply to the Sheriff Court for a decision as to whether the grounds

are established.  Such application must be made within 7 days and heard

within 28 days of that application.  The parents may appear as parties

and be represented.  Following a hearing, the Sheriff may either

discharge the referral or where he is satisfied that the grounds are

established, remit the case to the Reporter.  The Reporter, pursuant

to S. 42(6) of the 1968 Act arranges for consideration and

determination of the case by the Children's Hearing.

72.   At this stage, the Children's Hearing must consider what

arrangements would be in the best interests of the child (Section 43

of the 1968 Act).

73.   They may, inter alia,

      (1)  decide no further action is required  and discharge

      the referral;

      (2)  adjourn pending further investigations, including

      directing that a child attend a clinic or hospital;

      (3)  make a supervision requirement under Section 44,

      requiring the child to submit to supervision in accordance

      with such conditions as they may impose or to reside in a

      named establishment.

74.   Before the conclusion of the hearing the chairman must inform the

child, parent or parents, safeguarder if any and representatives if

attending the hearing of the decision of the Children's Hearing, the

reasons for the decision, the right of the child or parent to appeal

to the Sheriff against the decision and the right of the child and

parent to receive a statement in writing of the reasons for the

decision.  Such a written statement must then be given if requested.

Any parent, child or safeguarder who did not attend must be notified

in writing of the decision, the right to receive a statement of reasons

and the right to appeal.  (Children's Hearing Rules, Rules 19(4) and

20.)

75.   The mode of operation of a Children's Hearing is intended to

differ from that of a court.  The Children's Hearing is intended to

determine what is in the child's best interest.  Its aim is to achieve

this by informal discussion, not by an adversarial procedure.

Nevertheless, the child and his parent, and any safeguarder appointed

to look after the child's interests, must be fully involved in the

discussion.

      Reports and documents considered at the Children's Hearing

76.   The Children's Hearings are required to consider all the

information supplied (Children's Hearings Rules, Rule 19(2)(a).  Apart

from the statement of grounds of referral this information (reports,

documents etc.) is not usually supplied to the child or his parents,

but the chairman is required at the hearing to inform the child and his

parents of their substance if it appears to him that this is material

to the manner in which the case should be disposed of and that its

disclosure would not be detrimental to the interests of the child

(Children's Hearing Rules, Rule 19(3) ).

      Supervision requirements

77.   Supervision requirements are the orders of the Children's Hearing

imposing compulsory measures of care.  They may be of two kinds:

      (a) Requirements to submit to supervision in accordance

      with such conditions as the Children's Hearing may impose.

      (Section 44(1) (a) of the 1986 Act).  The conditions may include

      for example conditions requiring the child to reside in a

      particular place other than a residential establishment or

      with particular persons.

      (b)  Requirements to reside in a named residential

      establishment and to be subject to such conditions as the

      Children's Hearing may impose.  (Section 44(1)(b) of the

      1968 Act).

78.   The effect of supervision requirements has been clarified in

court decisions, in particular the decisions of the Court of Session

in the cases of Aitken v. Aitken 1978 SC 297, Dewar v Strathclyde

Regional Council 1984 SC 102 and Kennedy v. A 1986 SLT 358.  A

supervision requirement makes the local authority responsible for the

care of the child in accordance with the requirement and gives them the

necessary powers to exercise this responsibility.  It does not,

however, formally vest in them any parental rights of custody and does

not take away parental rights. Those rights are subject to the

supervisory requirements and so far as inconsistent with those

requirements they cannot be exercised. Thus the right of custody cannot

be exercised where a supervision requirement has required  a child to

live in foster care.  The Court of Session has indicated in the case

of Aitken v. Aitken that while such a supervision requirement subsists

it would be possible for them to award a person custody of the child,

but this award would have effect subject to the supervision requirement

and the person could not exercise actual custody while the supervision

requirement subsisted.

79.   As regards access, the Children's Hearing are entitled to attach

conditions as to access when making or continuing a supervision

requirement.  This was made clear in the case of Kennedy v. A.  In the

absence of any express condition as to access, the parents will be

given reasonable access.  However, a local authority has the competence

to terminate access where that is appropriate in pursuance of their

duty under Section 20 of the 1968 Act.

80.   The Court of Session have made it clear in the case of Dewar v.

Strathclyde Regional Council, that the courts will not adjudicate on

questions of access between the parents and the local authority.  If

a parent is dissatisfied with the decision of a local authority as to

access, the Court of Session have indicated that it is appropriate for

him to apply to the Children's Hearing to regulate the matter by

attaching a condition as to access to the supervision requirement.

81.   A parent has the right to request a review of a supervision

requirement every 6 months after the last review (Section 48 (4) of the

1968 Act) and can use this right to obtaining a ruling on access.

      Duration and review of supervision requirements

82.   The 1968 Act prescribes that a child should not continue to be

subject to a supervision requirement for any longer than is necessary

for his interest.  The requirement must be reviewed by a Children's

Hearing -

      (a) at any time if the local authority consider that it

      should cease to have effect or be varied;

      (b) within one year, otherwise it will cease automatically

      to have effect;

      (c) at the request of the child or his parent, after the

      expiry of these periods -

           (i)   3 months from imposition of the

           requirement;

           (ii)  3 months from any variation of the

           requirement of review;

           (iii) 6 months from any other review.

83.   The Reporter must make the necessary arrangements for such

revision hearings.  On review the Children's Hearing may terminate,

continue or vary the requirement. (Section 47 (1) and 48 of the

1968 Act.)

      Appeal against decision of a Children's Hearing

84.   Within 3 weeks of a decision of a Children's Hearing a child or

parent or both may appeal against it to the Sheriff (Section 49(1) of

the 1968 Act).  This applies to all decisions.

85.   The Reporter has the duty to ensure that all reports and

statements available to the Children's Hearing along with reports of

the proceedings of the Children's Hearing and their reasons for their

decisions are lodged with the clerk to the Sheriff Court.  These

documents are not made available to the parents as a matter of

practice.

86.   The appeal is heard in chambers.  The Sheriff must first hear the

appellant or his representative and any safeguarder appointed.  Where

an irregularity in the conduct of the case is alleged, then unless the

facts are admitted by the Reporter, the Sheriff must hear evidence

tendered by or on behalf of the appellant and Reporter as to the

irregularity.

87.   The Sheriff will then proceed to question, if he thinks fit, the

Reporter and the authors or compilers of any reports and statements

before him.  He can call for further reports and statements where he

thinks this may help him. The child and parents and safeguarder are

normally entitled to be present throughout.

88.   The Sheriff looks at the merits of the case.  Where he decides

the appeal has failed, he confirms the decision of the Children's

Hearing.  Where he is satisfied that the decision is not justified in

all the circumstances of the case, he may remit the case to the

Children's Hearing for consideration or discharge the child from any

further proceedings arising from those grounds of referral

(Section 49(5) of the 1986 Act).

      Adoption procedure

89.   The legislation governing adoption procedure is the Adoption

(Scotland) Act 1978 ("the 1978 Act").

90.   Under the 1978 Act, an order declaring the child free for

adoption may be made by the Court of Session or Sheriff Court.

91.   Before making the order the court must be satisfied as regards

each parent or guardian of the child that either -

      (a) he or she freely, and with full understanding of what

      is involved, agrees generally and unconditionally to the

      making of an adoption order;  or

      (b) his or her agreement to making the adoption order

      should be dispensed with on one of the grounds specified in

      Section 16(2) of the 1978 Act.

92.   There are a number of grounds for dispensing with the parents'

or guardians' consent.  These include the ground that the parent or

guardian is withholding his agreement unreasonably.

93.   For the purposes of the 1978 Act the natural father of a child

born out of wedlock would not be a "parent" except where he has

subsequently married the mother or has a parental rights order in his

favour.

94.   The effect of an order freeing the child for adoption is to vest

parental rights and duties in the adoption agency and to extinguish

existing parental rights.

95.   An order of the Sheriff Court freeing a child for adoption is

subject to appeal to the Court of Session.  On such an appeal the Court

of Session can decide on the merits of the action.  The Court of

Session will normally proceed on the basis of the Sheriff's findings

of fact but is not obliged to do so.  It may where appropriate take

evidence itself or remit the case to the Sheriff with instructions as

to how he should proceed.

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

96.   The Commission declared admissible the applicants' complaints

that they were unable to see confidential reports and documents

submitted to the Children' Hearings and the first applicant's

complaints that as a natural father he had no legal rights to the

custody of A. or to participate in the care proceedings and that he has

been discriminated against in this respect.

B.    Points at issue

97.   The issues to be determined are :

-     whether, in respect of both applicants, there has been violation

      of Article 8 (Art. 8) of the Convention in that they were unable

      to see the confidential reports and documents submitted before

      the Children' Hearings;

-     whether, in respect of the first applicant, there has been

      violation of Article 6 (Art. 6) of the Convention as regards his

      inability to see the confidential reports and documents in the

      course of the proceedings;

-     whether, in respect of the second applicant, there has been

      violation of Article 6 (Art. 6) of the Convention as regards her

      inability to see the confidential reports and documents in the

      course of the proceedings;

-     whether the first applicant has been discriminated against as a

      natural father contrary to Article 14 of the Convention in

      conjunction with Article 6 and/or Article 8 (Art. 14+6,14+8) of

      the Convention in that he had no legal right to the custody of

      A. or to participate in the proceedings.

C.    Article 8 (Art. 8) of the Convention

98.   Article 8 (Art. 8) of the Convention 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."

99.   The applicants complain that in the proceedings before the

Children Hearings the confidential reports and documents submitted by

the social services to the Panel were not disclosed to them. Since

these proceedings were part of the decision-making process which

determined what was to happen to their son A. they submit that the

reports should have been disclosed in order that they might be able

properly to answer the criticisms made against their parenting capacity

and if necessary to seek advice or experts with a view to rebutting

those criticisms.

100.  The respondent Government point out that though the documents are

not disclosed to parents the Chairman of the Hearing is under an

obligation to inform them of the substance of the documents if it

appears to him that this is material to the manner in which the case

should be disposed and that its disclosure would not be detrimental to

the interests of the child (see para. 76 above). They submit that this

is adequate to protect the interests of the parents and in some cases

may be a fairer and more comprehensible way of explaining the

significance of a report, in particular in such a case as the present

where the second applicant's emotional and mental state gave cause for

concern. Furthermore any decision of the Hearing could be appealed to

the Sheriff's Court which had full jurisdiction to examine the issues,

including any alleged failure to convey the substance of a report.

101.  The Commission notes first that the case falls within the scope

of the protection of Article 8 (Art. 8) of the Convention in respect

of both applicants. Though there was some initial doubt as to the first

applicant's relationship to A., his name was added to the birth

certificate as being the father on 18 February 1988. The mutual

enjoyment by parent and child of each other's company is an established

and fundamental element of family life. Consequently, the Commission

must therefore examine whether the procedures before the Children's

Hearing, which reached decisions relating to custody and access,

complied with the requirements of Article 8 (Art. 8) of the Convention.

102.  While there are no explicit procedural requirements contained in

Article 8 (Art. 8), the case-law of the Commission and Court establish

that in this area, where decisions may have a drastic effect on the

relations between parent and child and become irreversible, there is

particular need for protection against arbitrary interferences. In a

case where it was alleged that the local authority had not consulted

the parents of a child in its care before taking crucial decisions as

to its future, the Court adopted the following approach:

      "In the Court's view, what therefore has to be determined

      is whether, having regard to the particular circumstances

      of the case and notably the serious nature of the decisions

      to be taken, the parents have been involved in the

      decision-making process, seen as a whole, to a degree

      sufficient to provide them with the requisite protection of

      their interests. If they have not, there will have been a

      failure to respect their family life and the interference

      resulting from the decision will not be capable of being

      regarded as 'necessary' within the meaning of Article 8

      (Art. 8)." (Eur. Court H.R., W. v. United Kingdom judgment

      of 8 July 1987, Series A no. 121, p. 29, para. 64.)

103.  In the present case there is no doubt as to the importance of

what was at stake for the applicants. The Children Hearings were taking

decisions which determined the future of their relationship with A. The

Commission notes the informal nature of the Children' Hearings which

are intended to provide a non-contentious and constructive approach to

dealing with questions relating to a child's welfare. Nonetheless it

is open to question the effectiveness of a parent's participation in

this process if he or she has no sight of reports and documents which

are presumably relevant to the proceedings and contain matters at least

indirectly relating to the welfare of their child and their own

capacities in that respect. The opportunity of appealing to the Sheriff

Court either for an alleged failure to give the substance of a document

or on any other ground suffers from the basic defect that the parent

has no knowledge of the material's  contents to begin with. Further the

Commission notes that even before the Sheriff Court the parents are not

provided with copies of reports or other documents. Without the

documents in question, it must also be difficult for a parent to seek

independent advice as to their significance or as to the existence of

a ground of appeal, advice which takes on added importance where as in

this case the parent suffers from emotional or mental problems.

104.  The Commission is not called upon to consider whether there are

reports or other documents which may contain material which should not

be disclosed to parents either because it is detrimental to the child

or to their own interests. It has not been alleged in this case that

there were any special reasons for withholding the reports from the

applicants.

105.  Having regard to the above considerations, the Commission finds

that the procedure whereby the confidential reports and other

documents, which were before the Children' Hearings when they  took

decisions relating to A. and the applicants' relationship with him,

were not disclosed to the applicants, failed to afford them the

requisite protection of their interests. Consequently, there has in

that  regard been a failure to respect the applicants' family life.

Even having regard to the State's margin of appreciation, the fair

balance which has to be struck between the interests of the applicants

and other legitimate interests has not been attained (cf. mutatis

mutandis Eur. Court H.R., B. v. France judgment of 25 March 1992,

Series A no. 232, p. 47, para. 44 and pp. 53-54, para. 63).

      Conclusion

106.  The Commission concludes, unanimously, that there has been a

violation of Article 8 (Art. 8) of the Convention.

D.    Article 6 para. 1 (Art. 6-1) of the Convention

107.  This provision, as relevant, states :

      "In the determination of his civil rights and obligations or of

      any criminal charge against him, everyone is entitled to a fair

      and public hearing within a reasonable time by an independent and

      impartial tribunal established by law..."

The first applicant

a.    Applicability of Article 6 para. 1 (Art. 6-1)

108.  The Commission has first examined whether Article 6 para. 1

(Art. 6-1) is applicable to the first applicant's complaint that he was

unable to see the confidential reports and documents submitted in the

proceedings before the Children's Hearings.

109.  The Government have submitted that the first applicant cannot in

effect complain of the fairness of the proceedings before the

Children's Hearings since, having failed to apply for parental rights,

he did not participate in the proceedings as a party but only in the

capacity of representative of the second applicant. The first applicant

has not met this argument.

110.  The Commission recalls that the second applicant was the only

party before the Hearings though the first applicant played an active

role as her representative. He had not instituted proceedings to obtain

an order for parental rights which would have given him the status of

party in the proceedings (see paras. 59-60). Further the appeals from

the hearings to the Sheriff were by the second applicant alone. In

these circumstances, even assuming that the first applicant as natural

father enjoyed any "civil" rights under domestic law in respect of the

child, the Commission finds that these proceedings cannot be said to

have involved the determination of any of those rights. Consequently,

Article 6 (Art. 6) is not applicable to his complaint. It notes that

this complaint does not relate to the adoption proceedings before the

Sheriff Court and the Court of Session subsequent to the applicants'

marriage, by which the first applicant obtained parental rights in

request of A. In the adoption proceedings the first applicant was a

party and the documents before the courts were disclosed.

      Conclusion

111.  The Commission concludes, by eleven votes to two, that there has

been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in

respect of the first applicant.

The second applicant

a.    Applicability of Article 6 para. 1 (Art. 6-1)

112.  The Commission refers to the principles and case-law above (see

paras. 109-110).

113.  The second applicant as the natural mother of A. enjoyed under

domestic law parental rights in his respect. She had the right to

participate in the Children's Hearing as a parent and to appeal from

its decisions to the Sheriff Court. In the course of these proceedings

she contested the decisions placing A. in the care of the local

authority and the subsequent decision to terminate access maintaining

throughout that A. should be returned to her care. In these

circumstances, the Commission finds that there was a "genuine" and

"serious" dispute over the first applicant's rights within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention. These rights,

relating to family life, are "civil" in character (see eg. Eur. Court

H.R., W. v. the United Kingdom judgment of 8 July 1987, Series A

no. 121, p. 35, para. 78).

b.    Compliance with Article 6 para. 1 (Art. 6-1)

aa)   Before the Children's Hearing

114.  The Commission finds that the Children's Hearing is not a

tribunal or court within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention. It is not intended to be by the relevant legislation

and its members fail to offer the necessary guarantees of independence

(see para. 65 above). Consequently the proceedings before the

Children's Hearing did not comply with Article 6 (Art. 6) of the

Convention

bb)   Before the Sheriff Court

115.  The Commission finds that the Sheriff Court was a tribunal within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

116.  Article 6 para. 1 (Art. 6-1) does not require that the procedure

which determines civil rights and obligations is conducted at each of

its stages before tribunals meeting the requirements of Article 6

para. 1 (Art. 6-1). A procedure not complying with Article 6 para. 1

(Art. 6-1) may thus precede the determination of civil rights by a

tribunal which has full jurisdictional control over the prior procedure

and itself provides the requisite guarantees of Article 6 para. 1

(Art. 6-1) (see eg. Eur. Court H.R., Albert and Le Compte judgment of

10 February 1983, Series A no. 58, p. 16, para. 29).

117.  The second applicant submits in this respect that she did not

have sight of the confidential reports and other documents submitted

before the Children's Hearing nor was that material disclosed on appeal

to the Sheriff Court. The obligation on the Chairman of the Children's

Hearing to convey the substance of reports was not sufficient since

that would not necessarily give the full significance or tenor of those

reports. She should have had prior knowledge of the details of such

material to enable her to rebut any allegations and if necessary cite

experts or witnesses on her behalf.  The non-disclosure was in conflict

with all normal procedural rules and it deprived her of a possibility

of a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1).

118.  The Government submit that the second applicant was given a fair

opportunity of presenting her views and that the Chairman of the

Children's Hearing was under an obligation to inform her orally of the

substance of any documents supplied to them.  There was also a very

wide right of appeal to the Sheriff Court. Having regard to the special

nature of the Children's Hearings system, which seeks to achieve its

ends by collaboration and co-operation rather than by an adversarial

and confrontational procedure, the Government submit that in the

circumstances the second applicant received a fair hearing.

119.  The Commission notes that the second applicant had a possibility

of appealing from decisions of the  Children's Hearing to the Sheriff

Court which had jurisdiction to examine the matter on the merits and

any alleged procedural improprieties eg a failure to convey the

substance of reports to the applicant. While however the reports and

documents before the Children's Hearing are lodged by the Reporter

before the Sheriff Court these remain undisclosed to a parent such as

the second applicant even though they are of relevance to the

determination of the issues.

120.  The Commission finds that this reveals a basic inequality vis-a-

vis the other parties and places the parent at a substantial

disadvantage both in respect of his or her lodging of the appeal and

in the subsequent presentation of the appeal. In these circumstances,

the Commission considers that the second applicant's right to a fair

hearing was impaired (see eg. Eur. Court H.R., Ruiz-Mateos judgment of

23 June 1993, Series A no. 262, p. 19, para. 63).

      Conclusion

121.  The Commission concludes unanimously that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect

of the second applicant.

E.    Article 14 of the Convention in conjunction with Article 6 and/or

      Article 8 (Art. 14+6,14+8)

122.  Article 14 (Art. 14) provides:

      "The enjoyment of the rights and freedoms set forth in this

      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."

123.  The first applicant submits that he was the subject of

discrimination since as a natural father prior to his marriage to the

second applicant he had no right to the legal custody of A. or to

participate in the care proceedings.

124.  The Commission recalls that initially the second applicant denied

that the first applicant was A.'s father (see paras. 28 and 31 above).

It further notes that pursuant to relevant provisions of the Law Reform

(Parent and Child) (Scotland) Act 1968 (see paras. 59-60 above) a

child's father automatically acquires parental rights only where he is

married to the mother. While a parent has the right to attend all

stages of a Children' Hearing, this term excludes the father of a child

born out of wedlock.

125.  The Commission recalls however that whether a difference in

treatment constitutes a discrimination in the sense of Article 14

(Art. 14) depends on whether or not there exists an objective and

reasonable justification. To be compatible with this provision, the

difference must pursue a legitimate aim and there must be a reasonable

proportionality between the means employed and the aim sought to be

realised (see eg. Eur. Court H.R., Abdulaziz, Cabales and Balkandali

judgment of 28 May 1985, Series A no. 94, p. 35, para. 72 and Inze

judgment of 28 October 1987, Series A no. 126, p. 17-18, paras. 36-40).

126.  It is axiomatic that the nature of the relationships of natural

fathers with their children will inevitably vary - from ignorance and

indifference at one end of the spectrum to a close stable relationship

indistinguishable from the conventional matrimonial-based family unit

at the other. The Commission therefore considers that there is

objective and reasonable justification for a Contracting State to

exclude  the natural father from automatically enjoying full parental

rights under domestic law. A procedure exists in Scotland whereby

natural fathers may obtain recognition of their parental role and thus

obtain parental rights, namely, an application for parental rights

under section 3 of the 1986 Act (see para. 60 above). The principle of

proportionality  is thereby respected. The Commission consequently

finds that the difference in treatment complained of the present case

does not disclose any discrimination contrary to Article 14 of the

Convention in conjunction either with Article 6 or 8 (Art. 14+6,14+8).

      Conclusion

127.  The Commission concludes, unanimously, that there has been no

violation of Article 14 of the Convention in conjunction with Article 6

or Article 8 (Art. 14+6,14+8) in respect of the first applicant.

      RECAPITULATION

128.  The Commission concludes, unanimously, that there has been a

violation of Article 8 (Art. 8) of the Convention (see para. 106

above).

129.  The Commission concludes, by eleven votes to two, that there has

been no violation of Article 6 para. 1 (Art. 6-1) of the Convention in

respect of the first applicant (see para. 111 above).

130.  The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention  in respect

of the second applicant (see para. 121 above).

131.  The Commission concludes, unanimously, that there has been no

violation of Article 14 (Art. 14) of the Convention in respect of the

first applicant (see para. 127 above).

Secretary to the Commission      President of the Commission

      (H.C. KRUGER)                           (C.A. NØRGAARD)

                  CONCURRING OPINION OF MR. LOUCAIDES

      As regards the complaints of the first applicant under

Article 6 para. 1 of the Convention, while I agree with the conclusion

- that there has been no violation - I do so for different reasons.

      As established in the case-law of the Commission and Court,

Article 6 para. 1 applies only to disputes ("contestations") over

"rights and obligations" which can be said, at least on arguable

grounds, to be recognised under domestic law.  It does not in itself

guarantee any particular content for "rights and obligations" in the

substantive law of the Contracting States (cf. Eur. Court H.R., Lithgow

and Others judgment of 8 July 1986, Series A no. 102, p. 70,

para. 192).  On the other hand, it is not decisive whether a certain

benefit, or possible claim, is characterised as a "right" under the

domestic legal system.  This is so since the term "right" must be given

an autonomous interpretation in the context of Article 6 para. 1 (see

eg. Lithgow and Others judgment loc. cit. para. 192).

      It is also established case-law that Article 6 para. 1 guarantees

to everyone who claims that an interference with his "civil rights" is

unlawful the right to submit that claim to a tribunal satisfying the

requirements of that provision (see Eur. Court H.R., Le Compte, Van

Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20,

para. 44).  The claim or dispute must be "genuine and of a serious

nature" (see e.g. Eur. Court H.R., Benthem judgment of 23 October 1985,

Series A no. 97, p. 15, para. 32).  The dispute may relate not only to

the actual existence of a right but also to its scope or the manner in

which it may be exercised.  The dispute may concern both questions of

fact and questions of law (see e.g. Eur. Court H.R., Van Marle and

Others judgment of 26 June 1984, Series A no. 101, p. 11, para. 32).

      In the present case, the first applicant prior to his marriage

to the second applicant enjoyed under domestic law no parental rights

in respect of his son A. (see paras. 59-60 above). The second applicant

initially denied that the first applicant was the father (see

paras. 28 and 31 above).  While he did have the possibility of applying

to domestic courts for a parental rights order under section 3 of the

1986 Act, I consider that this limited procedural provision confers no

substantive rights of custody or access capable of falling within the

concept of civil rights.  I  recall that in the Keegan case (Keegan v.

Ireland, Comm. Report 17.2.93, pp. 13-14, paras. 60-67) the Commission

found that the relationship of the applicant, the natural father with

his child born out of wedlock had sufficient recognition in Irish

domestic law to base a claim to enjoyment of "civil rights". In my view

however the present case can in this respect be distinguished from  the

Keegan case in that in the Irish case the applicant had applied for

guardianship and it had been established in the Irish courts that in

such proceedings regard must be had to the wishes and desires of the

natural father to enjoy the society of his child, subject to other

overriding considerations. There was in the event in that case a

"serious" and "genuine" dispute over the applicant's rights.

      Consequently, my conclusion is that Article 6 para. 1  of the

Convention is not applicable to the first applicant's complaint

concerning the Children's Hearings.  I note that this complaint does

not relate to the adoption proceedings before the Sheriff Court and the

Court of Session subsequent to the applicants' marriage, by which the

first applicant obtained parental rights in request of A. In the

adoption proceedings the first applicant was a party and the documents

before the courts were disclosed.

              PARTIALLY DISSENTING OPINION OF MRS. LIDDY

                       joined by Mr. J. C. SOYER

      The majority of the Commission has concluded that there was no

violation of Article 6 para. 1 in relation to the first applicant who

complained that he was unable to see the confidential reports and

documents submitted in the proceedings before the children's hearings.

I have reached a different conclusion because I cannot see how this

issue can be distinguished, in its essentials, from the issues under

Article 6 para. 1 in the case of Keegan v. Ireland ( No. 16969/90,

Comm. Report 17.2.93).

      The applicant in Keegan v. Ireland had no standing before the

Adoption Board because he had not obtained a court order appointing him

guardian of a child.  The first applicant in the present case had no

standing before the Children's Hearings, dealing with questions of

access, because he had not obtained a parental rights order.  It cannot

be assumed that he would have been successful had he applied for one.

In Keegan v. Ireland there was no dispute as to whether the applicant

was the father of the child.  In the present case there was no dispute

after 18 February 1988 as to whether the applicant was the father of

the child.

      If the Commission was right in its unanimous conclusion in Keegan

v. Ireland that there was a violation of Article 6 para. 1, then it

must be the case that there is also a violation of the first

applicant's rights under that provision in the present case, at least

in the period following 18 February 1988.

                              APPENDIX I

                      HISTORY OF THE PROCEEDINGS

Date                             Item

________________________________________________________________

11.10.90         Introduction of the application

10.4.90          Registration of the application

Examination of admissibility

03.12.90         Commission's decision to invite the parties to submit

                 observations on the admissibility and merits

16.05.91         Government's observations

05.08.91         Applicants' reply

25.09.91         Applicants' further comments

07.04.92         Commission's decision to hold an oral hearing

23.07.92         Commission's grant of legal aid

08.12.91         Hearing on the admissibility and merits

08.12.92         Commission's decision to declare the application

                 partly admissible, partly inadmissible

Examination of the merits

08.12.92         Commission's deliberations on the merits

27.01.93         Applicants' submissions on the merits

03.04.93         Consideration of the state of proceedings

25.05.93         Government's submissions on the merits

31.08.93         Commission's deliberations on the merits, final votes

                 and adoption of the Report