AS TO THE ADMISSIBILITY OF

                    Application No. 28983/95

                    by Alaa AL-BANAA

                    against The United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 15 January 1998, the following members being present:

          MM   M.P. PELLONPÄÄ, President

               N. BRATZA

               E. BUSUTTIL

               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 1 May 1995 by

Alaa AL-BANAA against The United Kingdom and registered on

26 October 1995 under file No. 28983/95;Having regard to:

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

     the Commission;

-    the observations submitted by the respondent Government on

     25 April 1997 and the observations in reply submitted by the

     applicant on 21 August 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British civil engineer born in 1956 in

Baghdad.  He resides in Bristol.

A.   Particular circumstances of the case

     The facts of the case as submitted by the parties may be

summarised as follows.

     The applicant and J.M.L. married in March 1985. On

15 October 1986 J.M.L. filed a divorce petition.

     On 22 January 1987 a daughter, L., was born.  Immediately after

the birth, J.M.L. denied the applicant any contact with the child.

     On 29 January 1987 the provisional divorce (decree nisi) was

pronounced, custody of the child being given to the mother.

     It appears that a dispute over the paternity of the child arose.

According to the applicant, this dispute was resolved on

24 November 1987.  The applicant never raised the issue of paternity

again.

     On 25 March 1988 the applicant made an application for access to

his child.

     On 17 August 1988 the Bristol County Court granted the applicant

supervised access on two occasions, for a period of one hour each.

Having refused to allow access on 9 September 1988 and

13 September 1988, and stated her intention not to allow supervised

access to take place, the mother was committed to 24 hours'

imprisonment on 8 November 1988.

     On 14 December 1988, following the mother's refusal to allow

access, the applicant filed an application for custody and access.

     On 30 January 1989 Judge Counsell (Bristol County Court)

dismissed the applicant's application for custody and access on the

ground that, although it was in the child's interests to see her father

regularly, the mother was obdurate and would not accept this.

     On 14 February 1989 the final divorce (decree absolute) was

pronounced.

     On 19 April 1990 the applicant renewed his application for

access.  On 13 July 1990 Judge Counsell (Bristol County Court) refused

to make an order for access, considering that such an order was not

feasible as the mother was opposed to it and, as a consequence,

granting direct access would be harmful for the child.

     The applicant appealed against this decision. On 27 November 1990

the Court of Appeal decided to appoint the Official Solicitor to

represent the child and adjourned the appeal hearing.

     The Official Solicitor submitted a first report on 21 March

1991.     On 25 June 1991 the Court of Appeal adjourned the hearing

in order to allow the Official Solicitor to obtain a report from a

child-psychiatrist as to whether access to the father was in the

child's interests.

     A second report was submitted by the Official Solicitor on

22 July 1991.

     At the hearing of 25 July 1991 the Court of Appeal noted that the

parents had arranged to attend conciliation sessions and dismissed the

applicant's appeal for that reason.

     On 30 August 1991, as conciliation had failed, the applicant

filed another application for access.

     On 17 January 1992 Judge Counsell from the High Court of Justice

(Family Division), sitting in Bristol, after examination of a further

report of the Official Solicitor, and after hearing the child-

psychiatrist, ordered a first access of the applicant to see his

daughter.  The access visit took place on 15 February 1992, and the

applicant was able to see his daughter for the first time.  During the

visit, which lasted one and a half hours, the mother of the child, the

Official Solicitor and the child-psychiatrist were present.

     On 9 March 1992, following the meeting between the applicant and

his daughter, and upon the recommendation of the psychiatrist, the

Court ordered that the applicant should have access to his daughter on

a regular basis, namely the third Saturday of alternate calendar

months, for a period of approximately 1 1/2 hours.  The court ordered

that such access should take place on 11 April 1992, 13 June 1992 and

8 August 1992.  The court also allowed the applicant to write to his

daughter once per month and decided to review the matter on

12 August 1992.

     On 11 April 1992 the applicant's daughter was brought for a visit

to the applicant's house.  She was accompanied by her mother and her

grandfather.  As she refused to leave the car, the applicant,

accompanied by R.B., a person appointed by the court, went to the car,

where he spoke to her for about five minutes.

     On 13 April 1992 the applicant made an application for contact,

which, on 19 May 1992, led to no order.

     The visit scheduled for 13 June 1992 did not take place due to

the mother's opposition.

     On 20 June 1992, following an application for contact made on

15 June 1992, Judge Counsell (Bristol County Court) made an order

requesting the Official Solicitor to ensure that contact on 8 August

took place.

     The Official Solicitor submitted a fourth report on 30 July 1992.

     On 5 August 1992 Judge Counsell (High Court) ordered that contact

take place on 8 August 1992 at the applicant's house and that similar

contact should take place thereafter on the third Saturday of alternate

calendar months.

     On 8 August 1992 the applicant's daughter visited him at his

house.  The visit lasted one and a half hours.On 17 October 1992

the applicant's daughter was brought by her mother and her grandfather

to the applicant's house for another visit.  Refusing to leave the car,

the child told R.B. and C.G., appointed by the court to be present at

the visit, that she did not want to see the applicant.  Consequently,

the visit did not take place.

     On 10 November 1992, following an application for contact  of

19 October 1992, a contact order was refused.

     The applicant's daughter came for another visit on

19 December 1992, but after speaking with the applicant in the presence

of her maternal grandfather for some minutes, she started crying and

said she wanted to go home.

     On 22 December 1992 the applicant requested that contact should

take place in a neutral setting without any member of the mother's

family being present.  He also requested that contact take place not

once every six or eight weeks, but once every fortnight.

     On 12 February 1993, after examination of the Official

Solicitor's report of 9 February 1993, Judge Counsell (Bristol High

Court of Justice) adjourned the hearing to 20 May 1993 in order to

enable, firstly, the applicant to obtain legal representation, and

secondly, the Educational Welfare Officer to undertake conciliation

proceedings between the parents.  The Judge ordered that there be no

contact in the meanwhile.

     On 20 April 1993 Judge Counsell (Bristol County Court) ordered

the Official Solicitor to obtain information as to progress in the

conciliation proceedings between the applicant and the mother of the

child.

     On 20 May 1993, after hearing a child-psychiatrist, Judge

Counsell (Bristol High Court of Justice) refused the applicant's

application for contact subject to reviewing the matter in March 1994

in order, firstly, to allow the Official Solicitor to approach the

Family Conciliation Service with a view to initiating further attempts

at conciliation between the parents and secondly, to allow the Official

Solicitor to provide the court with a further report on the matter.

The Judge ordered that in the meantime the applicant should have no

direct physical contact with his daughter, as such contact could be

damaging to the child.  The applicant was nevertheless allowed to have

indirect contact such as sending his daughter cards at Christmas, on

her birthday, at Easter and once during the summer holidays, sending

her small monetary gifts at Christmas and on her birthday and obtaining

information from his daughter's school as to her progress.

     On 16 June 1993 the applicant filed an appeal against the order

of 20 May 1993 prohibiting direct physical contact.  On 11 November

1993 the Court of Appeal (Family Division) dismissed the appeal,

considering that, on the evidence, the trial judge's decision was

within the bounds of his discretion.

     The applicant's application for leave to appeal to the House of

Lords was dismissed by the Court of Appeal on 23 November 1993.  On

7 February 1994 the House of Lords refused leave to appeal.On 1 March

1994 the child-psychiatrist submitted a report to the court, where he

wrote the following:

     "[...] currently L. is able to talk in a neutral way about her

     father [...] and she is also able to accept his sending Christmas

     and birthday cards to her.  However, that degree of acceptance

     is currently fragile, and if she were forced against her express

     wishes to have increased indirect contact, or direct contact with

     him, then the effect would be that she would turn profoundly and

     more permanently against him [...]. L. has an inner conflict

     about visiting her natural father, whom she asks not to be

     required to visit for the time being, although she thinks she may

     like to see him in the future [...].  Either time should be

     allowed to gradually effect the change which will permit L. to

     request direct contact with her father, or a [fourth] attempt to

     improve parental attitudes through conciliation could be tried.

     The latter course is preferred but is dependent on finding an

     appropriate and acceptable family conciliator [...]"

     According to the applicant's written statement on 15 March 1994,

the applicant received the child-psychiatrist report of 1 March 1994

on 14 March 1994.

     On 16 March 1994, after examination of the reports submitted by

the Official Solicitor and the child-psychiatrist, after hearing the

parties, including the applicant's personal cross-examination of the

psychiatrist, and in the light of the failure of the conciliation

proceedings between the parents, Judge Counsell (High Court of Justice,

Family Division) stated first that in taking a decision, the welfare

of the child was paramount.  It noted further, on the one hand, the

distress and suffering caused to the applicant by the absence of direct

contact with his child, and on the other hand, that the child had a

serious loyalty conflict vis-à-vis her mother which could become

detrimental to her mental development if she was forced to have direct

contact with the applicant for the following five years.  The judge

reached the conclusion that, although in principle, it was in the

interest of the child to see and know her father, forcing direct

contact, as well as continuing the court proceedings, would be damaging

for the child for the time being.  Taking into account the fact that

the child had expressed the view that at that time she did not want to

see the applicant, although she thought that at some time in the future

she might want to do so, and invoking section 1(1) of the Children Act

1989, the Judge ordered that there should be only indirect contact

between the applicant and his daughter by his sending her cards at

Christmas, on her birthday and during the summer holidays and by his

receiving his daughter's school reports.  The Court also decided that,

pursuant to section 91(14) of the Children Act 1989, the applicant

could not file another application without leave of the court until

16 March 1999.

     The applicant's appeal against the decision of 16 March 1994 was

dismissed by the Court of Appeal (Family Division) on 31 October 1994.

The Court concurred with Judge Counsell in finding that a direct access

and further court proceedings could be damaging for the child, and

confirmed that the High Court's decision was in compliance with the

Children Act 1989.  The Court also ordered that the child-psychiatrist

provide a report concerning the attitude of the child to contact with

the applicant, to be served on both parents and filed with the court

by 1 November 1996. On 25 April 1995 the House of Lords refused to

grant the applicant leave to appeal.

     In his report of 12 December 1996, following a report of the

child-psychiatrist in which it was noted that the child had moved

steadily in her attitude towards contact with her father, the Official

Solicitor recommended an increase in the amount of indirect contact

between the applicant and his daughter and a further review on the

question of direct contact by 1 January 1998.  In particular, the

Official Solicitor recommended that the applicant's daughter be

permitted to send letters and cards to her father as often as she

wishes and that the applicant be permitted to write one letter in reply

to each of those.

     On 24 June 1997 the applicant consented to an order being made

in the terms of the Official Solicitor's recommendations.

     On 8 July 1997 an order was accordingly made.

B.   Relevant domestic law

     Section 1(1) and (2) of the Children Act 1989

     "(1) When a court determines any question with respect to -

     (a)  the upbringing of a child; or

     (b)  the administration of a child's property or the application

          of any income arising from it,

     the child's welfare shall be the court's paramount consideration.

     (2)  In any proceedings in which any question with respect to

     the upbringing of a child arises, the court shall have regard to

     the general principle that any delay in determining the question

     is likely to prejudice the welfare of the child.

     [...]"

     Section 91(14) of the Children Act 1989

     "On disposing of any application for an order under this Act, the

     court may (whether or not it makes any order in response to the

     application) order that no application for an order under this

     Act of any specified kind may be made with respect to the child

     concerned by any person named in the order without leave of the

     court."

COMPLAINTS

1.   The applicant complains under Article 6 of the Convention that

he was deprived of a fair hearing before the High Court sitting in

Bristol, as some important documents were given to him a short time

before the hearing.  He points out in this respect that for the hearing

of 16 March 1994 he was given the psychiatrist's report only on

14 March 1994.  He also complains that he was not informed in advance

that the judicial discretion provided for in Section 91(14) of the

Children Act would fall for consideration at the hearing of

16 March 994.  As a consequence, he did not have a proper opportunity

to advance evidence and submissions in this respect or to obtain legal

representation.2.   The applicant complains, under Article 6 of the

Convention, that the proceedings concerning his applications for access

were not decided within a reasonable time.  He contends that the

negligence of the authorities in enforcing the original court order has

led to the proceedings being delayed for over 9 years.  In particular,

he complains that the hearing on 30 January 1989 was unjustifiably

adjourned for 15 months, and his application for contact was unduly

adjourned on 20 May 1993 for 10 months.

3.   The applicant complains under Article 8 of the Convention that

the British court decisions preventing him from having access to his

child violate his right to respect for family life.

4.   The applicant complains that the refusal of access constitutes

racial discrimination contrary to Article 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 1 May 1995 and registered on

26 October 1995.

     On 17 January 1997 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

25 April 1997.  The applicant replied on 21 August 1997, after an

extension of the time-limit.

THE LAW

1.   The applicant complains, under Article 6 (Art. 6) of the

Convention, about the unfairness of the proceedings before the High

Court on 16 March 1994.  In particular, he complains that he was given

some important documents only a short time before the hearing on

16 March 1994, and that he was not told in advance about the possible

use of Section 91(14) giving the judge discretionary powers.  As a

consequence, he alleges that he could not properly prepare his case and

obtain legal representation.

     Article 6 (Art. 6) of the Convention reads as follows:

     "1.  In the determination of his civil rights and obligations

     ..., everyone is entitled to a fair and public hearing within a

     reasonable time by an independent and impartial tribunal

     established by law ..."

     The Commission notes firstly that the applicant did not request

an adjournment of the hearing of 16 March 1994 either to properly

prepare his case or to obtain legal representation.  Instead, he cross-

examined the psychiatrist and gave evidence himself.  The Commission

also observes that no explanation was provided by the applicant as to

his refusal to cross-examine the Official Solicitor.

     The Commission finds that, in any event, the applicant had not

demonstrated that his written statement of 15 March 1994 and his oral

submissions at the hearing on 16 March 1994 were not considered by the

Court, or that the manner in which the court conducted the hearing was

otherwise unfair.   As a result, the Commission finds no evidence to

indicate that the applicant could not present his case properly or that

the Court conducted the proceedings unfairly.

     Accordingly, this complaint does not disclose any appearance of

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

     The Commission concludes that this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.   The applicant complains, under Article 6 (Art. 6) of the

Convention, that the proceedings concerning his applications for access

were not decided within a reasonable time.

     The Government submit that the proceedings for contact and access

instituted by the applicant cannot be looked at as a whole.  Each

application or renewed application for contact is therefore to be

considered a separate and distinct determination of the applicant's

rights for the purposes of Article 6 (Art. 6) of the Convention.  In

the Government's view, were the position otherwise, proceedings for

access or contact would be considered to last from the date of the

first application until the child reaches the age of majority, a

potential maximum period of 18 years.

     In so far as it is alleged that any of the separate periods taken

to determine the applicant's civil rights are unreasonable, the

Government submit in the first place that, pursuant to Article 26

(Art. 26) of the Convention, the applicant is time-barred from

complaining about any decision pronounced more than six months before

the introduction of his application to the Commission, on 1 May 1995.

Therefore, the only decision finally determined within the preceding

six months about which the applicant can now complain is the decision

of the High Court of 16 March 1994 (subsequently upheld on 31 October

1994 and 25 April 1995), although the previous determinations are

relevant as background.

     As to the substantive issues, the Government rely on the

complexity of the proceedings and the fact that the determination went

through three levels of jurisdiction.  They point out that under

Section 1(2) of the Children Act 1989 the Court is required to have

regard to the general principle that any delay in determining any

question relating to a child's upbringing is likely to prejudice the

welfare of the child.  Since it is the welfare of the child which is

the Court's paramount consideration, there are bound to be cases in

which planned and purposeful delay will improve the chances of meeting

the child's needs (such as where it is felt that the Court would

benefit from a full investigation and a report from a psychiatrist).

The Government consider that in the present case, such reports were

obtained with a minimum of delay.  It also notes the amount of time it

took the applicant to agree to the recommendations in the report of the

Official Solicitor dated 12 December 1996.The applicant refutes the

Government's arguments that each or renewed application is to be

considered a separate and distinct determination of his rights for the

purposes of Article 6 (Art. 6) of the Convention.  In the applicant's

view, the proceedings for access which he initiated from the birth of

his daughter should be looked at  as a whole. In this respect, he

states that all his applications necessarily followed on from the first

application.  Had the matter been resolved from the first application,

no further proceedings for access or contact would have been necessary.

The applicant further states that the proceedings, from the first

application and the first Order were not complex, but it was the lack

of enforcement of the first Order that made them become complex.

     The Commission recalls that, in order to keep the parents and

children concerned no longer than necessary in uncertainty, proceedings

relating to a parent's access to his child should not be unduly

prolonged (cf. Hendricks v. the Netherlands, Comm. Report 8.3.92,

para. 137, D.R. 29, pp. 14, 41).  It also recognises that the decision

to be taken requires careful examination of the family situation and

needs to take into account the possibility of reaching an agreed

arrangement.

     The Commission notes that the applicant filed several

applications for access.  The first application was granted on

17 August 1988, the second was dismissed by Bristol County Court on

30 January 1989.  The applicant renewed the application for access

15 months later, on 19 April 1990, which was dismissed by the County

Court on 13 July 1990, that is four months later.  The appeal was

dismissed on 25 July 1991 by the Court of Appeal.  Another set of

proceedings was instituted by the applicant on 30 August 1991.  He was

then granted access by judgments of 17 January 1992, 9 March 1992,

15 June 1992 and 5 August 1992.  On 19 October 1992 the applicant filed

another application for contact, which was dismissed on

10 November 1992.  The last set of proceedings started on

22 December 1992, when the applicant filed an application seeking more

frequent contacts, was reviewed on 16 March 1994, and ended on

25 April 1995 with the decision by the House of Lords not to grant

leave to appeal.

     The Commission notes that these proceedings, although they had

the same object, that is to allow access to the applicant, concerned

different periods of time, were dealt with in a different manner by

distinct judgments, which were open to distinct levels of appeal.  The

Commission considers therefore that each set of proceedings should be

examined separately.

     The Commission notes that, as the present application was

submitted to the Commission on 1 May 1995, that is more than six months

later than all sets of proceedings but the proceedings that ended by

judgment of 25 April 1995, this part of the application must be

rejected in accordance with Article 27 para. 3 (Art. 27-3) of the

Convention.

     It follows that only that part of the application concerning the

proceedings that ended on 25 April 1995 is within the six-month time-

limit set out in Article 26 (Art. 26) of the Convention.Even

assuming that the period to be taken into consideration began on 22

December 1992 rather than on the review date of 16 March 1994, for the

particular circumstances of the case, in assessing the reasonableness

of the period following 22 December 1992, the Commission will take into

account the state of the earlier proceedings concerning access and the

link between all these proceedings.

     The last set of proceedings ended on 25 April 1995, when the

House of Lords refused to grant the applicant leave to appeal.

     The total period to be considered was thus two years and four

months.  The length of proceedings before the High Court was of fifteen

months, whereas the length of proceedings before the Court of Appeal

was of almost nine months.

     The Commission reiterates that the reasonableness of the length

of proceedings must be assessed in the light of the circumstances of

each case and having regard to the following criteria: the complexity

of the case, the conduct of the parties and that of the authorities

dealing with the case (Eur. Court HR, Vernillo v. France judgment of

20 February 1991, Series A no. 198, p. 12, para. 30).

     The Commission notes that the case was of a certain complexity,

as the courts, in taking their decision, had to strike a balance

between the welfare of the applicant's child and the applicant's rights

as a father.  In particular, the courts had to determine the question

whether direct access of the applicant would be damaging or not for his

child.

     The Commission notes that the decision taken by the High Court

required careful examination of the family situation and of the

preceding attempts at contact.  It also notes that the preparation of

the report by the child-psychiatrist and the Official Solicitor

involved time-consuming contacts with the persons involved.  On the

other hand, the Commission observes that the Court decided on

20 May 1993 to review the application in March 1994 in order to allow

further attempts at conciliation between the applicant and the mother

of the child.

     The Commission also observes that the applications for contact

preceding the date of 22 December 1992 were dealt with by the courts

rather speedily.

     In the light of the criteria laid down in the Court's case-law

and having regard to the circumstances of the present case, the

Commission finds that the time required by the courts for the

determination of the applicant's request for direct access cannot be

regarded as unreasonably long.

     Accordingly, this complaint does not disclose any appearance of

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

     The Commission concludes that this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3.   The applicant complains that his right to direct access to his

child has been interfered with in an unjustified manner.  He invokes

Article 8 (Art. 8) of the Convention, which provides:

     "1. Everyone has the right to respect for his private and family

     life, his home and his correspondence.

     2. There shall be no interference by a public authority with the

     exercise of this right except such as is in accordance with the

     law and is necessary in a democratic society ... for the

     protection of the rights and freedoms of others."

     The Government submit in the first place that there has never

been any "family life" within the meaning of Article 8 (Art. 8) between

the applicant and his daughter.  They contend that the fact that the

applicant is the natural father of the child is not necessarily

sufficient to establish "family life" at birth, even though the

applicant was the formal husband of the child's mother at the time of

the birth.  Regard must be had to the substance and reality of the

relationship as opposed to its formal status.  The Government point out

in this respect that the applicant has never lived with his daughter

and was not living with her mother at the time of the birth.

Furthermore, the Government consider that the quality of the

applicant's union with his wife was not such as to infer that family

life necessarily existed between the applicant and his daughter at the

time of the birth of the child, as, on the one hand, divorce

proceedings were active, and on the other hand, the mother of the child

had left the matrimonial home.  Moreover, the applicant's first

application for access to his daughter was not made until she was one

year and two months old.

     In the alternative, the Government submit that any interference

with the right to family life was justified under paragraph 2 of

Article 8 (Art. 8-2) of the Convention.  Such interference was in

accordance with the law, namely the Children Act 1989 and its

predecessor, the Matrimonial Causes Act 1973, and was necessary in a

democratic society to protect the rights and freedoms of others, namely

the applicant's former wife and his daughter.  Furthermore, the

interference was necessary in a democratic society, that is, it was

proportionate to the legitimate aim pursued.  The Government point out

in this respect that the courts took into account the welfare of the

child.  Their decisions were based on seven independent reports

prepared by the Official Solicitor, after consultation of a

psychiatrist.  The Official Solicitor was appointed at public expense

to look after the child's interests.  The order of 8 July 1997 is

evidence of a gradual improvement in the relationship between the

applicant and his daughter and goes some way to mitigate the effect of

the 1994 order that the applicant must obtain the leave of the Court

before filing another application for access or contact before March

1999.     The applicant submits that his relationship with his daughter

does constitute family life within the sense of Article 8 (Art. 8) of

the Convention, and therefore falls within the scope of this Article.

He points out that at the birth of his child, he was still living with

his wife, who refused to return home after the birth.  Invoking the

Eriksson judgment, where the court had stated that the mutual enjoyment

by parent and child  of each other's company  constitutes a fundamental

element of family life, the applicant states that the simple fact that

divorce proceedings were active and that his former wife refused to

allow access from the birth does not mean that there is no family life

in the sense of Article 8 (Art. 8) of the Convention.The applicant

considers that the interference with his family life was not provided

by law, as the court's decision not to allow direct contact did not

take into account the child's interest, but the mother's wishes.  The

applicant also contends that there was no evidence to support the

conclusion that direct contact could be damaging for the child.

     The Commission recalls that the concept of family life on which

Article 8 (Art. 8) is based embraces, even where there is no

cohabitation, the tie between a parent and his or her child, regardless

of whether or not the latter is legitimate (see Eur. Court HR,

Boughanemi v. France judgment of 24 April 1996, Reports 1996-II, no.

8, p. 608, para. 35).  The existence or not of a "family life" falling

within the scope of Article 8 (Art. 8) of the Convention will depend

on a number of factors and on the circumstances of each particular case

(No. 12402/86, Dec. 9.3.88, D.R. 55, p. 224).  Relevant factors in this

regard include the nature of the relationships between the parents and

the demonstrable interest in and commitment by the father to the child

both before and after the birth (see mutatis mutandis, Keegan v. the

United Kingdom, Comm. Report 17.2.93, para. 48, Eur. Court HR, Series

A no. 290, p. 27).

     The Commission notes that in this case the applicant and the

child's mother were married and co-habited more than a year.  Thus,

their relationship cannot be characterised as casual or fleeting.  The

Commission also notes that the applicant has constantly requested to

have access to his child since March 1988.  As to the dispute between

the parents concerning the issue of paternity, the Commission notes

that this appears to have been due to the behaviour of both parents.

     In the light of these elements, the Commission finds that the

applicant's links with the child are sufficient to bring the

relationship within the scope of Article 8 (Art. 8) of the Convention.

     Further, the Commission considers that the right to respect for

family life within the meaning of Article 8 (Art. 8) of the Convention

includes the right of a divorced parent who is deprived of custody

following the break-up of the marriage to have access to or contact

with his child.  The State may not interfere with the exercise of that

right otherwise than in accordance with the conditions set out in

Article 8 para. 2 (Art. 8-2) (cf. Hendricks v. the Netherlands, loc.

cit., para. 94).

     The Commission notes that the refusal to allow direct contact

between the applicant and his child constitutes an interference with

the applicant's right to family life within the meaning of Article 8

(Art. 8) of the Convention.

     The Commission must therefore examine whether the interference

complained of was justified under Article 8 para. 2 (Art. 8-2) of the

Convention, i.e. whether the interference was in accordance with the

law, had an aim which was legitimate and was necessary in a democratic

society.

     The Commission observes that the decisions taken by the domestic

courts were based on sections 1(2) and 91(14) of the Children Act

1989.     As regards the legitimate aim, the Commission has constantly

held that in assessing the question of whether or not the refusal of

the right of access to the non-custodial parent was in conformity with

Article 8 (Art. 8) of the Convention, the interests of the child

predominate.  The interference therefore has a legitimate aim insofar

as it has been made for the protection of the child's interests (cf.

No. 7911/77, Dec. 12.12.77, D.R. 12, p. 192; No. 12495/86, Dec.

7.12.87, D.R. 54, p. 187).

     In the present case it is undoubted that the interference had the

purpose of protecting the child's interests.  In this respect the

Commission refers to the decision of the High Court dated

16 March 1994, where it was held that in principle, it was in the

interest of the child to see and know her father.  In the Court's

opinion, there were exceptions to this rule in cases where a conflict

appeared to exist between the parents and a direct access could be

harmful for the child's development.

     The Commission must now consider whether the interference was

necessary in a democratic society for the protection of the child's

interests.

     In examining whether the interference was necessary the

Commission does not intend to substitute its own judgement for that of

the domestic courts.  Its function is to assess from the point of view

of Article 8 (Art. 8) the decision which those courts took in the

exercise of their discretionary powers.

     The Commission recalls that although Article 8 (Art. 8) includes

a right for the parent to have measures taken with a view to his being

reunited with the child and an obligation for the national authorities

to take such action (Eur. Court HR, Hokkanen v. Finland judgment of

23 September 1994, Series A no. 299-A, p. 19, para. 53), such an

obligation is not absolute, since the reunion of a parent with a child

who has lived for some time with other persons may not be able to take

place immediately and may require preparatory measures being taken to

this effect.  The nature and extent of such preparation will depend on

the circumstances of each case, but the understanding and co-operation

of all concerned will always be an important ingredient.  Whilst

national authorities will have to do their utmost to facilitate

reunion, any obligation to apply coercion in this area must be limited

since the interests as well as the rights and freedoms of all concerned

must be taken into account, and more particularly the best interests

of the child and his or her rights under Article 8 (Art. 8) of the

Convention (see Eur. Court HR, Olsson v. Sweden (no. 2) judgment of

27 November 1992, Series A no. 250, pp. 35-36, para. 90; Hokkanen

judgment, loc. cit., p. 22, para. 58).

     Furthermore, the Commission  considers that it is an important

function of the law in a democratic society to provide safeguards in

order to protect children from harm and mental suffering resulting, for

instance, from the break-up of the relationship of their parents.  In

such cases this purpose may be achieved by keeping the child away from

a situation which could be detrimental to his or her mental development

owing to the existence of a loyalty conflict vis-à-vis one or both of

the parents and the inevitable parental pressure put on him or her

causing feelings of insecurity and distress (cf. Hendricks v. the

Netherlands, loc. cit., para. 120).The Commission considers that

where there is a serious conflict between the interests of the child

and one of its parents, which can only be resolved to the disadvantage

of one of them, the interests of the child must, under Article 8

(Art. 8), prevail.

     In the present case, the Commission is called upon to examine

whether the refusal of direct contact between the applicant and his

daughter as decided by the High Court on 16 March 1994 amounts to a

lack of respect for family life.

     In doing so, the Commission will take into consideration not only

the proceedings which led to the High Court's judgment of

16 March 1994, but all the previous proceedings concerning the

applicant's access to his child, as they form the background to the

applicant's de jure or de facto lack of access to his daughter.

     As regards the background of the present case, the Commission

notes that, since 17 August 1988 and until 20 May 1993, the applicant

had been granted access to his child on a number of occasions.

However, except for the meetings of 15 February 1992 and 8 August 1992,

his visiting rights remained unenforced, due either to the mother's

blanket refusal to allow access or to the child's refusal to see her

father.

     The Commission observes that, in order to enforce the applicant's

right to access, the Court committed the mother on one occasion to

24 hours' imprisonment on 8 November 1988.  However, due to the

mother's obduracy and also as a result of the growing inner conflict

of the child, most of the subsequent visits could not take place.

     The Commission notes that it was in the light of these elements

that the High Court was called upon on 16 March 1994 to decide on the

applicant's right.

     The Commission finds that the national courts carefully

considered the applicant's fresh application for contact. The

Commission notes in the first place that the case was decided by Judge

Counsell, the same judge who had handled the previous applications for

contact and who, therefore, had very close and long-running experience

of the case.

     The Commission notes the actions taken by Judge Counsell in order

to allow attempts at conciliation between the applicant and the mother

of the child.  It also notes that Judge Counsell had a careful look at

the history of the case and acknowledged the applicant's positive

behaviour throughout the previous proceedings.

     The Commission notes that Judge Counsell took into account, on

the one hand, the psychiatrist's report suggesting that forcing direct

contact for the time being would be counter-productive and damaging for

the child, and on the other hand, the fact that the child had expressed

the view that at that time she did not want to see the applicant,

although she thought that at some time in the future she might want to

do so.    The Commission also notes that the national courts confirmed

that in taking their decisions, the welfare of the child was paramount.

Without overlooking the distress and suffering caused to the applicant

by the absence of direct contact with his child, the courts considered

that, given the persisting difficulties between the parents, the child

had a serious loyalty conflict vis-à-vis her mother which could become

detrimental to her mental development if she was forced to have direct

contact with the applicant for the following five years.

     The Commission also notes that the courts decided that, in order

to facilitate reunion in the future, indirect contact should be

maintained between the applicant and his daughter by way of cards,

reports from the child's school and photographs.

     In these circumstances, the Commission is satisfied that the

domestic courts, bearing in mind the competing interests and the

difficulties in reconciling the applicant and the child's mother, have

done their utmost to facilitate reunion between the applicant and his

child.

     Accordingly, the Commission, having regard to the margin of

appreciation enjoyed by the national authorities,  concludes that the

interference with the applicant's right to respect for his family life,

being proportionate to the legitimate aim pursued, was justified under

Article 8 para. 2 (Art. 8-2) as being necessary in a democratic society

for the protection of the rights and freedoms of another person, namely

the child concerned.

     It follows that this part of the applicant is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Commission.

     Insofar as the applicant invokes lastly Article 14 (Art. 14) of

the Convention, he has failed to substantiate his complaint, which

accordingly must also be rejected as being manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

     M.F. BUQUICCHIO                       M.P. PELLONPÄÄ

        Secretary                            President

   to the First Chamber                 of the First Chamber