Lexploria

Application No. 11468/85

K

against

the

UNITED KINGDOM

REPORT OF THE COMMISSION

(Adopted on 15 April 1988)

TABLE OF CONTENTS

Pages

INTRODUCTION 2 - 3

PART I: STATEMENT OF THE FACTS 4 - 5

PART II: SOLUTION REACHED 6 - 7

INTRODUCTION

1. This Report relates to Application No. 11468/85 introduced by

Mr. K. against the United Kingdom under Article 25 of the Convention

for the Protection of Human Rights and Fundamental Freedoms. The

application was registered on 21 March 1985.

2. The applicant was represented before the Commission by

Mr. S. Bellamy, Counsel, Mr. N. O'Brien, Adviser, and Ms. N. Angell

of Bindman and Partners, Solicitors, London.

3. The United Kingdom Government were represented before the

Commission by Messrs. M. Wood and I. Hendry, Agents, Foreign and

Commonwealth Office.

4. On 15 October 1986 the European Commission of Human Rights

declared admissible the applicant's complaints under Articles 6, 8, 13

and 14 of the Convention arising out of the denial of access of the

applicant to his son, T., born out of wedlock, and his inability to

participate as a party in care proceedings. *

5. The Commission then proceeded to carry out its task under

Article 28 of the Convention, which provides as follows:

"In the event of the Commission accepting a petition

referred to it:

(a) it shall, with a view to ascertaining the facts,

undertake together with the representatives of the parties

an examination of the petition and, if need be, an

investigation, for the effective conduct of which the

States concerned shall furnish all necessary facilities,

after an exchange of views with the Commission;

(b) it shall place itself at the disposal of the parties

concerned with a view to securing a friendly settlement

of the matter on the basis of respect for Human Rights as

defined in this Convention."

6. The Commission found that the parties had reached a friendly

settlement of the case and on 15 April 1988 it adopted this Report,

which, in accordance with Article 30 of the Convention, is confined to

a brief statement of the facts and of the solution reached.

------------

* This decision is public and can be obtained from the

Commission on request.

7. The following members of the Commission were present when the

Report was adopted:

MM. C. A. NØRGAARD, President

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

PART I

STATEMENT OF THE FACTS

8. On 20 June 1982 a son, T., was born to the applicant and

Ms. H. to whom he was not married but with whom he had lived since

October 1979. The applicant had cared for the baby during the first

eleven months of his life due to H's inability to cope with the child.

H. subsequently left the family home with the child in May 1983.

9. On 16 June 1983, following the deterioration of H's mental

health, the Social Services Department of Cambridgeshire County

Council were granted an interim care order in respect of T. under the

relevant provisions of the Children and Young Persons Act 1969 by the

competent Juvenile Court. However, due to his status as putative

father of T. the applicant was not recognised under the 1969 Act as a

party to these proceedings or as a parent or guardian with a right to

participate in the proceedings. T., in the meantime, was placed with

foster parents and the applicant had no access to him until 21 August

1983.

10. The applicant, fearing that the Social Services Department

intended to seek a full care order from the Juvenile Court, instituted

wardship proceedings in the Family Division of the High Court on

8 August 1983, seeking inter alia care and control of the child.

11. On 9 August 1983 the Juvenile Court proceeded to hear the care

proceedings under the 1969 Act and granted a care order in favour of

the local authority, notwithstanding a letter informing the Juvenile

Court of the wardship proceedings and requesting an adjournment.

12. The wardship proceedings were heard by the High Court between

1 and 11 May 1984. Judgment was reserved until 25 June 1984, when it

was ruled that T. should remain a ward of court during his minority,

that care and control of T. should be granted to his foster parents

and that the applicant should have access to T. at the home of T.'s

foster parents.

13. Before the Commission the applicant complained under Article 6

of the Convention of his inability to participate fully in the care

proceedings before the Juvenile Court and to apply for custody

and access to the child. He further complained of the delay in the

hearing of the wardship proceedings which he claimed prejudged his

claim for care and control of the child as against that of the foster

parents. He also alleged discrimination contrary to Article 14 of the

Convention due to the difference in legal status of fathers and

mothers of children born out of wedlock. He further alleged that the

local authority failed to show respect for his family life with the

child, contrary to Article 8 of the Convention, and that he had no

effective remedy available to him to challenge their actions, contrary

to Article 13 of the Convention.

14. On 10 July 1985 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits of

the application. The observations of the Government were

received on 16 October 1985 and the applicant's observations in reply

were received on 21 February 1986.

15. On 13 May 1986 the Commission decided to hold a hearing on the

admissiblity and merits of the application. This hearing

was held in Strasbourg on 15 October 1986, the applicant being

represented by Mr. S. Bellamy, counsel, Mr. N. O'Brien, adviser,

and Ms N. Angell, solicitor, Bindman and Partners. The Government were

represented by Mr. I. Hendry, Agent, Mr. J. Holman, counsel and

Mr. R. Aitken and Ms. P. Barrett, advisers, from the Department of

Health and Social Security.

16. The applicant was granted legal aid by the President of the

Commission on 16 June 1986 in respect of his legal representation.

PART II

SOLUTION REACHED

17. Following the decision on the admissiblity of the application,

the Commission placed itself at the disposal of the parties with a

view to securing a friendly settlement, in accordance with Article 28

(b) of the Convention, and invited the parties to submit any proposals

they wished to make.

18. After an exchange of correspondence between the parties and the

Commission concerning the possibility of reaching a settlement, the

respondent Government indicated in a letter, dated 7 September 1987,

that a friendly settlement was possible in view of the terms of the

Family Law Reform Act 1987 which was not yet in force and a White

Paper entitled "The Law and Child Care and Family Services".

19. Subsequently a meeting took place in London on 17 March 1988

between representatives of the parties and the Secretary of the

Commission accompanied by several members of the Secretariat.

20. At the meeting the parties reached an outline agreement which

they subsequently confirmed in writing to the Commission.

21. On 31 March 1988 the Government's Agent, Mr. M. C. Wood,

addressed the following letter to the Commission:

"I have the honour to refer to the recent discussions on

the question of a friendly settlement of the above

application. In the light of these discussions, the

Government propose a friendly settlement on the following

basis:

1. The Government recall that the law relating to

access to children in care and the rights of putative

fathers with respect to their children in care has been the

subject of review with a view to securing procedural

improvements and greater clarity.

2. To this end the Family Law Reform Act 1987 (except

Part II and sections 23, 24 and 25) will be brought into

force on 4 April 1988.

3. The Government confirm their intention first to

bring Part II of the Family Law Reform Act 1987 into force

as soon as possible having regard to the matters referred to

in the Attorney General's Answer in the House of Commons on

28 October 1987 and secondly to introduce legislation along

the lines of the White Paper on 'The Law of Child Care and

Family Services' (Cm. 62) as soon as the Parliamentary

timetable allows. The Government intend that the combined

effect of these measures will enable inter alia a

putative father to apply for access or custody where a child

is the subject of care proceedings or is compulsorily taken

into care.

4. The Government will make an ex gratia payment to

the applicant, the amount to be negotiated between the

parties, if necessary using the good offices of the

Commission, in the light of the Article 50 judgments of the

European Court of Human Rights in the O, H, W, B and R

cases. If the parties do not reach agreement within three

months of these judgments, the amount will be determined, at

the request of either of the parties, by the Commission.

5. The Government will also pay the applicant's legal

costs which have been actually incurred, necessarily

incurred and are reasonable as to quantum."

22. On 8 April 1988 Bindman and Partners sent the following telex

to the Commission:

"We have seen a copy of the letter from the U.K.

Government to yourselves concerning the friendly settlement

in this case.

We are writing to inform you that we are happy to

accept on Mr. K's behalf the friendly settlement as

proposed."

23. At its session on 15 April 1988 the Commission found from the

above letters that the parties had reached agreement on the terms of a

settlement. The Commission further found, having regard to Article 28

(b) of the Convention and to the stated intention as to the combined

effect of the Family Law Reform Act 1987 and the above-mentioned White

Paper and Article 28 (b) of the Convention, that a friendly settlement

of the application had been secured on the basis of respect for human

rights as defined in the Convention.

For these reasons, the Commission adopted the present Report.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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K. v. the UNITED KINGDOM

K. v. the UNITED KINGDOM