AS TO THE ADMISSIBILITY OF

                      Application No. 36931/97

                      by Patricia HERRON

                      against United Kingdom and Ireland

     The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

           MM    M.P. PELLONPÄÄ, Acting President

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 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 February 1995

by Patricia HERRON against the United Kingdom and Ireland and

registered on 18 July 1997 under file No. 36931/97;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Irish citizen, born in 1951 and currently

resident in Dublin. She is unrepresented.

     The facts as submitted by the applicant may be summarised as

follows.

     The applicant and TM were married in 1982, separated under Irish

law in 1987 and divorced under English law in 1992. They have one

child, N, a boy, born in 1980. The applicant has lived in Ireland from

1982 onwards. N lived in Ireland from 1982 until he was taken to

England by his father in October 1993. There has been protracted

litigation concerning N with over 80 applications in Ireland alone.

     In 1988 the applicant alleges that she discovered that her son

had been sexually abused by TM and his brother between 1983 and 1987.

She claims that TM was a practising homosexual and paedophile. The

applicant alleges that she was informally told by the Irish police that

no prosecution proceedings would be brought against TM, despite a full

disclosure by N, because TM, who had been imprisoned for various

offences prior to their marriage, was a police informer.

     The applicant was awarded custody of N on 11 December 1990 by an

Irish High Court Judge who granted TM supervised access. In a note of

judgment it was recorded that the judge found the allegations of sexual

abuse to be "false". However, in a letter from the judge to the

applicant dated 2 February 1994 he wrote:

     "I did not think your husband's sexual abuse of your child has

     (sic) been proved as a matter of probability. It was unnecessary

     for my decision to make a finding on that particular aspect of

     the case".

     In 1992 the applicant brought a private prosecution against TM

in Ireland but claims that she was denied access to files because of

the police decision not to prosecute TM. The applicant brought judicial

review proceedings to compel the Director of Public Prosecutions in

Ireland either to bring proceedings himself or to disclose

documentation to the applicant for her private prosecution. These

proceedings were heard by the Irish High Court and then the Irish

Supreme Court which found, in delivering its judgment on 19 May 1994,

that there needed to be evidence of mala fides or improper motives on

the part of the Director of Public Prosecutions before his decision

could be challenged by way of judicial review and there was no prima

facie case in this instance for mala fides or improper motives.

     The applicant experienced serious difficulties with N's behaviour

which she attributed to his alleged abuse. In 1992 the applicant kept

N from school to supervise an intensive period of therapy to teach him

appropriate social skills. However, N ran away from home and was later

found to have suffered non-accidental injuries. He stated that he had

been beaten by his mother's cohabitee, DO'S. N refused to return home

and a place of safety order was obtained by the Southern Health Board

in June 1992 who contacted TM. The applicant then obtained an order

prohibiting contact between TM and N. In August 1992 N returned to his

mother. She obtained an order preventing TM from taking N out of the

jurisdiction in February 1993. N continued to display behavioural

difficulties. The applicant believed that he required psychological

counselling as an in-patient and described him as having a psychopathic

personality.

     N ran away from home on at least 8 occasions between August and

September 1993 and went missing in October 1993. The applicant became

aware that TM was in Cork and informed the police. N appears to have

approached his father for help and was taken to England by TM on

19 October 1993.

     The applicant applied under the Hague Convention for N's return.

Initially, the English High Court ordered that N be returned to

Ireland. N then instructed his own solicitors to become a party and his

father attempted to obtain a stay of the proceedings. Neither was

successful. The applicant then instructed a private investigator to

ensure that N remained in local authority care. Upon learning this, N

absconded. The order to return to Ireland was then stayed in the hope

of encouraging N to return to care. This was successful and N was

granted leave to become a party on 29 November 1993.

     In the English Court of Appeal N appealed the order for his

return to Ireland and gave evidence, through reports from English and

Irish social workers that he was genuinely frightened of his mother and

her cohabitee, DO'S. He said that he had been physically and

emotionally abused, had contemplated suicide and wished to stay in

England with TM. On 21 December 1993 the court held that N's wishes

were sufficiently strong for the order for return to be over-ruled

pursuant to Article 13 of the Hague Convention. Interim residence was

granted to the applicant's sister and N was made a ward of the English

High Court.

     On 7 June 1994 an order was made for TM to have interim care of

his son. No transcript of that judgment has been provided. On

24 June 1994, upon an application by the Official Solicitor, the

English High Court ordered that, in N's best interests, allegations of

sexual abuse before 1988 would not be re-opened during the substantive

hearing determining N's residence. Inter alia, this would protect N,

who was then a party, from hearing all the allegations and would also

reflect the fact that they had not been proved as a matter of

probability in the Irish court. This decision was not appealed.

     In the substantive hearing in the English High Court in October

1994 the applicant suggested that N should either be placed in a secure

unit in Ireland or accommodated by the London Borough of Westminster,

until they decided whether or not to take him into care. TM suggested

that N should remain with him. Both parents gave evidence although the

judge did not find either to be very impressive witnesses. The judge

also heard from a consultant child psychiatrist and a social worker,

both of whom recommended that N remain with his father, the

psychiatrist emphasizing the importance of attendance at the Bloomfield

clinic in Guy's hospital. Two reports had also been prepared by doctors

at the Bloomfield clinic. The psychiatrist considered that forcibly

detaining N in an Irish assessment centre would not be beneficial.

While the judge saw the force of the applicant's argument that N should

be returned to Ireland as he was an Irish child who was used to Irish

culture, he also noted the psychiatrist's view that force would have

to be used against N to ensure that he returned to Ireland.

     In his judgment delivered on 11 October 1994, the judge

identified N as being a disturbed boy. He considered that N needed

considerable care, including the loving care of a parent, if he was to

overcome his difficulties. The judge noted that the applicant did not

propose to visit N if he were returned to Ireland and detained in a

secure unit unless N asked her to do so. The judge decided that it

would be in his best interests if he remained with TM, placing limited

reliance upon N's wishes. He described the proposal as being the least

disadvantageous for N. The judge also ordered that N should not be

taken to Ireland without the leave of the court. The decision was not

appealed.

     N travelled to Ireland on his own in March 1996 leading the

applicant to make a further application in November 1996 the purpose

and contents of which are unexplained. The applicant is of the belief

that there is a conspiracy between the United Kingdom and Ireland to

protect TM from prosecution for sexual offences and that one effect of

the conspiracy has been to allow TM to have care and control of N.

COMPLAINTS

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

the United Kingdom authorities have been negligent in failing to bring

TM to justice or to protect N from sexual abuse and have also violated

her custody rights.

2    The applicant complains under Article 8 of the Convention that

the Irish authorities have been negligent in failing to protect N from

abduction, sexual abuse and removal from the applicant's custody, have

failed to prosecute TM for alleged sexual abuse and have perverted the

course of justice.

3.   The applicant complains under Article 3 of Protocol No. 4 against

the United Kingdom that N has been prevented from returning to Ireland

by the High Court order dated 11 October 1994.

4.   The applicant invokes Article 5 of Protocol No. 7 in relation to

the United Kingdom and Ireland, arguing that the English and Irish

authorities have been biased against her in comparison with their

treatment of TM.

THE LAW

1.   The applicant invokes Article 8 (Art. 8) against the United

Kingdom and complains that the English authorities have undermined her

rights of custody, been negligent in their duty to bring TM to justice

and protect N from sexual abuse and have perverted the course of

justice in violation of her family rights.

     Article 8 (Art. 8) provides as follows:

     "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."

     The Commission finds that the decisions of the English courts

revoking the order to return N. to Ireland and awarding care and

control of N to TM disclose an interference with the applicant's right

respect for family life. While the Commission notes that the

applicant's proposals in October 1994 were for N to be placed in secure

accommodation in Ireland where she would visit him, rather than be

returned to her home, the decision of the English High Court in

granting custody to TM may be regarded as interfering with her parental

rights in terms of being able to control the treatment given to her

son.

     Once the interference with the applicant's right to family life

is established, the Commission is required to consider whether or not

the interference was justified, by reference to the conditions set out

in Article 8 para. 2 (Art. 8-2) of the Convention: the interference

must be "in accordance with the law", it must be "necessary in a

democratic society" and it must pursue the legitimate aims set out in

Article 8 para. 2 (Art. 8-2) itself (eg. Eur. Court HR, W. v. the

United Kingdom judgment of 8 July 1987, Series A no. 121, para. 60).

     The applicant has suggested that there is an international

conspiracy to prevent N from living with her, allegations which are

wholly unfounded. There is no indication that the decision made by the

English High Court 11 October 1994 was not "in accordance with the

law". The judge applied the principles under the wardship jurisdiction,

namely, to have regard to the welfare of the child, to come to the

conclusion that it was in N's best interests to remain a ward of court

with care and control to his father.

     The Commission is also of the opinion that the interference had

a legitimate aim under Article 8 para. 2 (Art. 8-2) namely promoting

and protecting the best interests of the child, N and as such, may be

regarded as having been effected for "the protection of health or

morals" or for the "protection of the rights and freedoms of others".

     As regards the question of the necessity of the interference the

Commission recalls that the Court's case-law states that necessity

implies that the interference corresponds to a pressing social need and

is proportionate to the legitimate aim pursued (eg. Eur. Court

HR, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130,

para. 67).

     In determining the question of whether the interference is

necessary in a democratic society, the Commission acknowledges that the

Contracting State must be allowed a margin of appreciation since in

general, having the benefit of first-hand experience of the case and

the parties, it will be in a better position to evaluate the necessity

of any interference. However, the review which can be carried out by

the Commission is not limited to ascertaining whether a respondent

State exercised its discretion reasonably, carefully and in good faith

but extends to an examination of whether or not the reasons which are

used to justify the interference are "relevant and sufficient" (see eg.

Eur. Court HR, Olsson judgment, op. cit., para. 68).

     The Commission observes that the court heard extensive evidence

from the parents, a social worker who had worked with N, a consultant

child psychiatrist and also had before it two other doctors' reports.

Both independent witnesses who gave oral evidence, the social worker

and the psychiatrist, were of the view that a return to Ireland would

be detrimental to N, particularly given that the applicant intended

that N should be detained in a secure unit upon his return to Ireland.

The judge noted N's objections to returning to Ireland and identified

N as being a disturbed boy who needed the loving care of a parent which

he felt was more likely to come from his father. Consequently, the

judge awarded care and control of N to TM. The fact that the judge

described this choice as being the least disadvantageous for N reflects

the difficulty of the decision. The Commission finds that his decision

can be considered to be based on "relevant and sufficient reasons".

     The Commission must also consider whether or not the manner in

which the court came to its decision disclosed any evidence of either

procedural or substantive unfairness (eg. Eur. Court HR, W. v. the

United Kingdom judgment, op. cit., paras. 62-64). The applicant has

complained in particular that, in its decision of 24 June 1994, the

High Court excluded evidence regarding the alleged sexual abuse of N

from being considered within the substantive hearing regarding N's

residence. The Commission notes that matters concerning the

admissibility of evidence fall primarily within the appreciation of the

domestic courts (Eur. Court HR, Schenk v. Switzerland judgment of

12 July 1988, Series A no. 140, para. 46). The applicant was

represented in the hearing on 24 June 1994 and was afforded the

opportunity to put forward arguments as to the relevance of abuse

allegations. The Commission recalls however that the court considered

that, in N's best interests, the evidence regarding sexual abuse ought

not to be included noting in particular that, as a party N would have

been aware of all the allegations and moreover, that the Irish High

Court judge had not found the allegations proven as a matter of

probability. It does not find that this decision discloses any

arbitrariness or unfairness.

     As regards the complaint that there has been a failure to protect

N from sexual abuse and to bring TM to justice, the Commission notes

that the alleged sexual abuse occurred in Ireland between 1983 and

1987, six years before N went to England. There is no suggestion that

any abuse has occurred since that date.

     The Commission accordingly finds that the interference with the

applicant's right to respect for her family life may be regarded as

being necessary in a democratic society for the protection of the

rights of others, namely the applicant's son, N, and therefore complies

with the requirement of Article 8 para. 2 (Art. 8-2). It follows that

this part of the application must be rejected as manifestly ill-founded

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

2.   The applicant also invokes Article 8 (Art. 8) of the Convention

against Ireland complaining that the Irish authorities have been

negligent in failing to protect N from removal from her custody,

abduction and sexual abuse, have negligently failed to prosecute TM for

alleged sexual abuse and have undermined her custody rights and

perverted the course of justice in the English and Irish courts in

violation of her family rights.

     There is no suggestion that the Irish authorities should have

known about the alleged abuse prior to the applicant reporting it in

1988. This complaint is unsubstantiated and, assuming that there were

no domestic remedies to exhaust, would fail under the six month rule

imposed by Article 26 (Art. 26) of the Convention, since the

application was introduced on 1 February 1995. The alleged negligence

in failing to protect N from abduction and removal from her custody has

also not been the subject of any proceedings. Again assuming that there

were no remedies to exhaust, the Commission notes that this complaint

would also fail under the six month rule as N was taken to England in

October 1993.

     The allegations that the Irish authorities have perverted the

course of justice appear to stem from the applicant's wholly

unsubstantiated allegations that there is an international conspiracy

to protect paedophiles including TM. The Commission notes that the

English High Court alone has decided N's long term residence. As

regards the  applicant's unsuccessful attempt to bring judicial review

proceedings against the Director of Public Prosecutions in Ireland to

obtain an order for mandamus to force him to institute proceedings

against TM, the Commission notes that its case law provides that the

right of access to court does not include a right to have criminal

proceedings instituted against a third party (eg. No. 9777/82,

Dec. 14.7.83, D.R. 34, p. 158).

     The Commission finds that this part of the application  discloses

no appearance of a violation of the provisions of the Convention and

should be rejected as being manifestly ill-founded as a whole pursuant

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

3.   The applicant complains under Article 3 of Protocol No. 4 (P4-3)

against the United Kingdom that N has been prevented from returning to

Ireland by the High Court order dated 11 October 1994.

     Article 3 of Protocol No. 4 (P4-3) provides that:

     "1.   No one shall be expelled, by means either of an individual

     or of a collective measure, from the territory of the State of

     which he is a national.

     2.    No one shall be deprived of the right to enter the territory

     of the State of which he is a national."

     Protocol No. 4 has not been ratified by the United Kingdom. It

follows that the Commission is not competent to deal with this part of

the application as it is incompatible pursuant to Article 27 para. 2

(Art. 27-2) of the Convention.

4.   The applicant invokes Article 5 of Protocol No. 7 (P7-5) against

both the United Kingdom and Ireland.

     Article 5 of Protocol No. 7 (P7-5) provides that:

     "Spouses shall enjoy equality of rights and responsibilities of

     a private law character between them and in their relations with

     their children, as to marriage, during marriage and in the event

     of its dissolution. This Article shall not prevent States from

     taking such measures as are necessary in the interests of the

     children."

     Protocol No. 7 has not been ratified by the United Kingdom nor

Ireland. These complaints must therefore also be rejected as

incompatible pursuant to 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                                Acting President

to the First Chamber                       of the First Chamber