Lexploria

Application No. 34546/97

by A.V.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 20 May 1998, the following members being present:

MM E. BUSUTTIL, Acting President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 July 1996 by

A.V. against the United Kingdom and registered on 17 January 1997 under

file No. 34546/97;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the letter of 13 March 1998 submitted by the respondent

Government and the letter of 13 March 1998 submitted by the

applicant's representative;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom born in 1952 and

currently resident in Blackpool. Before the Commission he is

represented by Philip Leach, Solicitor and Legal Officer of Liberty,

London.

The facts as submitted by the applicant may be summarised as

follows.

On 11 July 1981 the applicant married C. On 27 April 1987 a male

child, T. was born to C. The birth was registered by C on 13 May 1987,

naming the applicant as the boy's father. At this time divorce

proceedings between the applicant and C. had been commenced. The decree

nisi was pronounced on 24 July 1986, and the decree absolute was

granted on 27 October 1987.

On 24 April 1992 the applicant married J. and their daughter, M.,

was born on 23 April 1994.

Very shortly after the birth of T. in 1987, the applicant was

told by C. that the true father was in fact I., a man with whom she had

had an affair.

C. subsequently brought affiliation proceedings in the Weymouth

County Court against I. and an order was made in respect of maintenance

for T. Further, blood tests from the applicant, the mother, the child

and I., taken during the course of affiliation proceedings, excluded

the applicant from paternity of the child.

For the purpose of County Court proceedings claiming property

adjustment, T.'s mother, inter alia, filed with the court a sworn

affidavit dated 7 November 1991 in which she stated that T.'s father

was I., and not the applicant.

The applicant accordingly began proceedings to amend T.'s birth

certificate. Upon application to the Registrar of Births, Deaths and

Marriages he was informed that, by law, the error in the birth

certificate could only be amended by means of a note in the margin on

production of statutory declarations setting forth the facts of the

case by two people who are "qualified informants" of the birth, or in

default of such people, two "credible persons having knowledge of the

truth of the case" (such persons being defined in the relevant

legislation).

The relevant law meant that the applicant was reliant on the co-

operation of others to provide the afore-mentioned declarations. In the

specific circumstances of this case, and as detailed below, C. as T.'s

mother and the real father, I. (being potential "qualified informants"

for the purpose of the legislation) did not provide such co-operation -

despite T.'s mother's previous sworn affidavit in the affiliation

proceedings (which was inadequate for present purposes as it was not

a statutory declaration). There was no means by law by which either C.

or I. could be compelled to provide information or a blood sample as

would enable a third party to make a declaration as to the truth or

otherwise of the applicant's assertion.

While it would have been possible for the applicant to obtain a

statutory declaration from Dr. Grant, who carried out the blood test

for the purpose of the affiliation proceedings, he had since died.

Further, the applicant was unable to obtain Dr. Grant's records, either

from his former hospital (where he was told they were not kept as

Dr. Grant only worked there in an honorary capacity) or after

contacting the Probate and Trust Consultants who were instructed to

assist in the administration of Dr. Grant's Estate (they had destroyed

all copies of Dr. Grant's paternity and medical papers and they had no

knowledge of the whereabouts of his original records). The applicant's

efforts to get colleagues or other qualified persons to comment upon

and interpret the report Dr. Grant produced also proved unsuccessful

as they did not know or could not deduce what confirmatory tests

Doctor Grant performed.

The matter was consequently pursued by the applicant's Member of

Parliament (MP) who subsequently received a written reply from the

Parliamentary Under Secretary of State which expressed "great sympathy

with " but explained that the legislation did not permit

the applicant to introduce a statutory declaration from others. The

applicant's MP subsequently initiated an adjournment debate in the

House of Commons (24 April 1996), whereupon, on behalf of the

Government Mrs Angela Knight, the Economic Secretary to the Treasury,

replied that while she had "considerable sympathy with the difficult

situation in which [the applicant] finds himself", and that she "was

aware that there are particular complications with this most sensitive

and unusual case", neither she nor the Registrar General had any power

to exercise any discretion in the matter. She concluded as follows:

"I can appreciate my honourable friend's frustration, and

particularly frustration, but without the

cooperation of his former wife or a suitably qualified person to

declare that the blood tests taken were accurate, regrettably

there is nothing further I can offer him..."

COMPLAINTS

1. The applicant complained of a violation of his right to respect

for private and family life contrary to Article 8 of the Convention.

In particular he submitted that, by a failure to provide an adequate

mechanism for him to correct T.'s birth certificate, the respondent

State did not accord respect to the applicant's true family status or

private life and wrongly permitted interference with such rights. Such

was not justified as necessary in a democratic society and could not

be justified by any of the exceptions contained in Article 8 para. 2

of the Convention.

2. The applicant submitted that there was a breach of Articles 14

when read in conjunction with Articles 8 and 13 of the Convention. He

submitted that, as the United Kingdom law currently stood, there was

a discrimination on grounds of marital status in respect of the power

to ensure that the birth register is correct as between putative

fathers who are married to the mother of a child and putative fathers

who are not. The applicant asserted that, by virtue of the relevant

provisions of the Birth and Deaths Registration Act 1953 (sections

1(2)(a), 2(1)(a) and 10), a man who was married to the mother of a

child could be registered by the mother as the father of her child

without his presence or consent, and she was not required to produce

any evidence to support the registration. By contrast, a man who was

not married to the mother of a child could not be registered by the

mother as the father of her child without his presence, consent or

other evidence.

3. The applicant also complained that under United Kingdom law he

had no access to an effective remedy contrary to Article 13 of the

Convention with respect to the arguable breach of Article 8.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 July 1996 and registered on

17 January 1997.

On 11 September 1997 the Commission (First Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure, and to invite them to

submit written observations on the admissibility and merits of the

application.

On 13 March 1998 the Government informed the Commission that the

Government and the applicant had agreed to request that the application

be struck off the list of cases before the Commission on the basis of

agreed terms of settlement (see below). By letter of the same date the

applicant confirmed the terms of the friendly settlement.

REASONS FOR THE DECISION

The Commission notes that the parties have reached a friendly

settlement on the following terms:

"1. The United Kingdom Government undertakes, subject to any

representations made as part of the preliminary consultations

required by section 3 of the Deregulation and Contracting Out Act

1994, to place a Deregulation Order before Parliament, pursuant

to section 1 of that Act, to amend section 29(3) of the Births

and Deaths Registration Act 1953. The Government proposes to

permit correction of a birth record either upon presentation of

two statutory declarations, or, alternatively on presentation of

one statutory declaration from a qualified informant together

with an unequivocal order of the court in place of the second

statutory declaration confirming that the person in question is

or is not the biological parent of the child.

2. The Government will use its best endeavours to ensure that

the order is brought into force as soon as possible, it being

anticipated that the order might be made and brought into force

by April 1999 at the earliest.

3. The Government will pay the applicant compensation of £500.

4. The Government will pay the applicant's reasonable costs

incurred in bringing the application to the European Commission

of Human Rights".

In these circumstances, the Commission finds that the matter

which has been the subject of the application has been resolved within

the meaning of Article 30 para. 1 (b) of the Convention. The

Commission, furthermore, having regard to Article 30 para. 1 in fine,

finds no special circumstances regarding respect of human rights as

defined in the Convention which require the continuation of the

examination of the application.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M.F. BUQUICCHIO E. BUSUTTIL

Secretary Acting President

to the First Chamber of the First Chamber

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A.V. v. THE UNITED KINGDOM

A.V. v. THE UNITED KINGDOM

LEXI