AS TO THE ADMISSIBILITY OF

                      Application No. 31316/96

                      by Salome STOPFORD

                      against the United Kingdom

     The European Commission of Human Rights sitting in private on

20 October 1997, the following members being present:

           Mr    S. TRECHSEL, President

           Mrs   G.H. THUNE

           Mrs   J. LIDDY

           MM    E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs   M. HION

           MM    R. NICOLINI

                 A. ARABADJIEV

           Mr    M. de SALVIA, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 30 April 1996 by

Salome STOPFORD against the United Kingdom and registered on 2 May 1996

under file No. 31316/96;

     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

     22 July 1996 and the observations in reply submitted by the

     applicant on 3 October 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a citizen of South Africa and the United Kingdom

born in 1947 and resident in London. She makes this application on her

own behalf and on behalf of Sophiso (Phiso) Masango, a citizen of South

Africa of Zulu origin born in 1986. She is represented before the

Commission by Mr Alan Levy, counsel, and Mishcon de Reya, solicitors

practising in London.

     The facts as submitted by the parties may be summarised as

follows.

     Particular circumstances of the case

     The applicant, who arrived in the United Kingdom in or about

1970, married an Englishman, Mr. Stopford, in 1973. They had three

daughters. In 1982, the applicant and her three children returned to

live in South Africa.

     In 1984, the applicant first made acquaintance with

Charles Mahlangu, who was working as a driver. Through him, she was

introduced to Selina Masango and employed her to work in her home.

Selina Masango was closely attached to and integrated in the Stopford

family, caring for the applicant's daughters as nanny and acting as

cook and housekeeper.

     On 13 February 1986, Selina Masango gave birth to Sophiso (called

Phiso), whose natural father was Charles Mahlangu. When, in June 1987,

the applicant's family moved to a predominantly white community

adjacent to Johannesburg, Selina Masango initially intended sending

Phiso to her village 150 kilometres away in order to comply with

apartheid regulations. The applicant who had already become attached

to Phiso offered to take responsibility for him in such a way as would

enable him to remain as a member of her household. It was implied in

that arrangement that he would receive a standard of medical care and

education which Selina Masango and Charles Mahlangu would be unable to

give him.  It appears that while Selina Masango lived in the servant

quarters closely adjacent to the applicant's house, Phiso's life was

centred in the applicant's house.

     Early in 1992, the applicant decided to leave South Africa due

to the unsettled situation and to return to live in the United Kingdom

with her family. With the agreement of Selina Masango and Charles

Mahlangu, who signed a document to this effect, Phiso accompanied the

applicant's family to London. The applicant considered that this was

an indefinite arrangement which would endure until the completion of

Phiso's education. Charles Mahlangu and Selina Masango asserted in

subsequent proceedings that the arrangement was for five years

precisely. It was part of the agreement that Selina Masango should be

provided with the means of visiting Phiso in London or should receive

visits from him.

     On 16 March 1992, the applicant, her daughters and Phiso arrived

in the United Kingdom. During the immigration control on arrival, the

applicant stated that she intended to adopt Phiso. He was given a three

month immigration pass.

     On 12 May 1992, the applicant instructed solicitors concerning

the problem of Phiso's immigration status and continued residence in

the United Kingdom. The applicant's solicitors took steps seeking to

discover Selina Masango's views as to adoption. While there was some

ambivalence in early contacts, by early 1993, Selina Masango and

Charles Mahlangu were taking the view that the applicant was in breach

of the agreed terms for reciprocal visits for Phiso and Selina Masango

and that Phiso should be returned immediately. In a letter dated

11 October 1992, the applicant wrote to Selina Masango stating that she

was applying for adoption in order that Phiso could stay in the country

and study and that she did not want to take him away from Selina

Masango, who was his mother. Selina Masango did not reply to the

letter.

     On 26 January 1993, the applicant gave notice to Westminster

Council of her intention to adopt Phiso. In April 1993, Simone, the

applicant's eldest daughter visited South Africa with the primary

purpose of locating Selina Masango, arranging an air ticket and

accompanying her back to London for a visit. Simone had difficulties

making contact with Charles Mahlangu and Selina Masango. When she did,

Charles Mahlangu seemed supportive of the idea but was living

separately from Selina Masango. Selina Masango would not agree to the

plan until she had returned to discuss it with her parents in her

village. Simone then lost contact with her and though she waited two

extra weeks, left South Africa without further word from Selina

Masango.

     Between June and August 1993, Selina Masango wrote ten letters,

mainly to Phiso, which appealed for his return.

     On 28 July 1993, the applicant's solicitors issued an adoption

application, and at the same time, as an alternative, an application

for a residence order.

     On 2 September 1994, Charles Mahlangu and Selina Masango went

through a ceremony of civil marriage in South Africa.

     On 23 September 1994, the Official Solicitor was given leave to

instruct Dr. Cameron, a consultant child psychiatrist.

     On 27 September 1994, solicitors acting on behalf of

Charles Mahlangu and Selina Masango applied to have Phiso made a ward

of court. They applied in the context of the wardship for the immediate

return of Phiso to South Africa.

     On 17 March 1995, the High Court gave leave to Westminster

Council to instruct an expert in the field of trans-racial adoption.

     Charles Mahlangu and Selina Masango arrived in the United Kingdom

for the hearing of the various applications concerning Phiso. They

refused the applicant's offer to stay at her family home. Contact was

arranged between them and Phiso.

     After a hearing, the High Court judge, Thorpe J., gave his

judgment on 19 June 1995. He had heard oral evidence from the

applicant, her three daughters, the trans-racial adoption expert social

worker, a social worker from Westminster Council,  Dr. Cameron,

Charles Mahlangu and Selina Masango, Phiso's natural parents.

     Dr. Cameron provided two reports, the first dated 16 May 1995 and

a second dated 15 June 1995 taking into account his contacts with the

natural parents.

     In his first report, Dr. Cameron found that Phiso had a loving

relationship with the applicant and that he also displayed a trusting

and loving attitude to his mother even though he had not seen her for

three years. He stated that Phiso had spontaneously suggested that his

mother come to stay with them in London which indicated that he wished

the pattern of life which he had previously enjoyed in South Africa to

be replicated in London, living daily with both the applicant and her

family and his mother being present. Given the history of his

upbringing, it was not surprising that Phiso now had "two

'psychological mothers' to both of whom he is emotionally attached".

He stated that Phiso would benefit from returning to his parents' care

in South Africa since he would be brought up in his own racial group

and identify with the cultural patterns of that group, and since being

centred psychologically within his own community of origin would give

him strength as an individual. However, these gains had to be weighed

against the disadvantages: these included the loss of education, being

removed from a lively family group where he is the adored youngest

sibling to being the lonely eldest child in a very different social

setting. He expressed the view that Phiso would not benefit from a

denial of meaningful contact with either family and his own wish was

for an ongoing relationship with both.  He recommended dialogue between

the adults with a view to continuing an agreeable compromise which

allowed him to benefit from educational opportunities which were agreed

for him initially but allowing use of holidays for benefitting from his

own family roots.

     In his second report, Dr. Cameron stated, having interviewed the

parents and observed a contact visit, that Phiso was pleased to meet

his natural parents who were clearly overjoyed to see their son once

more. He found that Phiso's present and future interests would be

promoted by confirming his natural parents' role and confirming the

understanding reached in 1992 by the parties. If his home base were

insensitively interrupted now then the emotional impact on the boy

could be profoundly damaging. Wrenching him away from his London family

where his main security was centred would be emotionally damaging and

would run the risk of having long term psychological after-effects. To

this end, he proposed that the natural parents enjoy liberal and

meaningful contact with Phiso in the United Kingdom as a preparation

for a 2-3 week visit in the summer; Selina Masango, and possibly

Charles Mahlangu, should visit London in the Christmas holidays and

regular communication should start between Phiso and his natural

parents with the applicant's support. A review could then take place

in two years by the Court, by which stage it would be hoped that

sensible discussion would have facilitated Phiso enjoying generous

contact visits so that he grew up feeling himself to be a significant

member of his natural family. This was the proposal which was advocated

in the proceedings by the Official Solicitor as representative of

Phiso.

     Mr. Justice Thorpe found that there was no doubt of Phiso's

profound psychological attachment to his mother but that his father had

been a distant and shadowy figure in his life. It seemed to him that

the application for adoption had no chance of success and that the

parents' application for immediate return ignored the psychological

attachment of Phiso to the applicant's family and the dangerous

consequences of forcefully and precipitately rupturing that contact.

He had during the proceedings made it plain that it was vital that the

adults in the case resume communication and move from their respective

extreme positions. As a result, the applicant's counsel had withdrawn

the application to adopt and the parents had agreed to visit Phiso at

the applicant's home and talk directly to the applicant and her

daughters. He commented on how the relationship of real love between

the applicant's family and Selina Masango had withered away and changed

to active distrust and animosity on the side of Selina Masango. It was

in his view clear from the correspondence between the two sides that

good intentions to perform the agreement reached in March 1992 were

frustrated in real measure by immigration difficulties and by a

convenient abandonment after the frustration of Simone's failed attempt

to facilitate Selina Masango's visit in April 1993. He found:

     "It is manifest from the correspondence which I have reviewed

     that bears a heavy responsibility for the failure

     to perform the essential conditions of the parents' consent,

     which were designed to preserve the relationship between them and

     their child and to preserve his attachment to his own people and

     culture. To her credit she has not sought to deny that

     responsibility. She seemed to me to be a woman of unusually

     forceful personality, with an unusual capacity to achieve against

     the odds. That conclusion, however, demonstrates how unequal is

     the bargaining power as between herself and Selina and Charles...

     Dr. Cameron, the only witness called by the Official Solicitor,

     gave a particularly impressive exposition of his findings and

     conclusions over the course of cross-examination that took the

     best part of the day. I have no doubt at all of the profundity

     and wisdom of his findings and conclusions.

     Finally, there is the evidence of the parents. It is very

     difficult for me to assess them because they gave evidence

     through an interpreter and because they come from a race, a

     culture and a tradition which I am not qualified to understand

     or to put in due perspective... I, however, have reached the

     conclusion that the evidence of both parents is quite unreliable

     on a number of important issues. That is not to say that they are

     untruthful people. It is simply to say that their recall has

     become increasingly subjective as the pressure of this litigation

     has intensified...

     The submission of the local authority, adopted by the parents,

     is that there is a principle to be extracted from the case of In

     re K.D. [1988] AC 806, in particular the citation from the speech

     of Lord Templemean at page 812:

           'The best person to bring up a child is the natural parent.

           It matters not whether the parent is wise or foolish, rich

           or poor, educated or illiterate, provided the child's moral

           and physical health are not endangered.'

     ... It begs the question: who is the natural parent, when the

     issue is to determine who should have the daily care of a child

     when one applicant is the biological mother and the other the

     psychological parent... This case is further complicated by the

     fact that this boy has two psychological parents and they are

     both psychological mothers. ... The only guiding principle is

     that that overrides all cases affecting children..., namely that

     the welfare of the child is paramount. It is the function of the

     judge to choose the solution which promotes welfare, or more

     relevantly, is likely to prove the least damaging to the child

     in its intellectual, physical, emotional and psychological

     development..."

     The judge referred to the three possibilities, confirmation of

his placement with the applicant, immediate return to South Africa and

continuance of the earlier understanding with proper implementation and

open communication between the parties. He agreed with Dr. Cameron that

the third was in the best interests of Phiso but was concerned with

avoiding uncertainty as to the middle and longterm future of Phiso.

With reference to the matter coming back for review in two years' time,

he stated:

     "...this court has to have regard to the wishes and feelings of

     the child, and if, in two years' time, there is a continuing

     offer of London education from supported by

     fervently expressed wishes and feelings from Phiso, that

     represents a formidable combination. But any such presentation

     would be very stringently scrutinised to ensure that the stated

     wishes and feelings were not the product of both influence and

     isolation, and that attachment was not

     something that was impeding Phiso from development which must be,

     in the last resort and profoundly, Zulu development, and not

     Afrikaans or English development.

     So I think there must be a firm recognition that Phiso returns

     to South Africa. The only question is when and how that can be

     achieved... it is in Phiso's interests that there should be a

     clear ruling from this court that, whilst return is impossible

     in the immediate future, and while the arrangement that was

     negotiated in March 1992 must be given primacy, at its conclusion

     the presumption is return, unless there is at that stage a

     consensual extension to represent the restoration of co-operation

     between the adults and a renewed capacity to put Phiso's welfare

     first and adult interests and needs a firm second.

     A final consideration that bears upon the future and the

     timescale of return is the parents' need to prove themselves in

     light of the rejection of their case that they have been a

     settled married couple throughout the history. The reality is

     that they have only come together since, and perhaps as a result

     of this case. Their present house seems inadequate. Their

     presentation of the future is dependent on the generosity of

     others and their ability to earn consistently and achieve

     material targets that have opened to them in the new South

     Africa. In Phiso's interests this court should not take too much

     on trust. The next two years will give the parents the chance to

     turn their proposals into reality."

     The terms of his order, signed on 10 July 1995, were determined

by agreement with counsel for all parties. It provided for monthly

telephone contact, and one paid air ticket per year to be provided by

the applicant to Selina Masango and any further contact as agreed. The

matter was to be reviewed in two years time with a view to establishing

the date and circumstances of Phiso's permanent return to South Africa.

     The case went on appeal before the Court of Appeal which

delivered judgment on 5 March 1996. The Court of Appeal ordered that

Phiso be placed in the care and control of his parents who were granted

leave to remove him permanently from the jurisdiction. It ordered that

there be reasonable contact as agreed between the parties, including

staying contact twice per annum.

     Lord Justice Neill considered that there was a strong supposition

that it was in the interests of Phiso that he be brought up with his

natural parents. He commented that the adult parties had not been

working towards the re-introduction of Phiso to his family and country

as envisaged by the judge's plan. Having regard to the evidence of

Dr. Cameron that the change would be deeply traumatic, he had, after

anxious consideration, concluded that any further delay in return could

not be in the interests of Phiso who had the right to be reunited with

his Zulu parents and with his extended family in South Africa.

     Lord Justice Ward commented that it was "a sorely difficult case"

and that the Court of Appeal had to be chary about interfering with

such a delicate exercise of discretion  made by a judge as experienced

and sensitive as in this case. However he differed from the judge's

approach to the law which he found indicated an established line of

authority as to the relative weights of competing claims between

natural and psychological parents, the strong supposition being that

it is in the interests of the child to be brought up by its natural

parents. He considered that with hindsight and fresh evidence before

them it was clear that trust and harmony between the adult parties had

not been restored and there had been no harmonious dialogue, indeed

very little dialogue. He referred to the applicant's application to be

released from her obligation to provide for two trips to South Africa.

There was, in his view, no hope of repairing the breach between the

families.  He found that the evidence before the judge disclosed the

harsh fact that the applicant had deceived the parents and that she had

always known that she did not have the mother's consent to an adoption.

In the language of child abduction, this was a wrongful removal, or at

least it became so by 4 November 1992 when the mother called for

Phiso's return to South Africa. Since Dr. Cameron's intermediate

position was no longer viable, he concluded that delaying further would

only cause further harm. He stated further:

     "I am under no illusions whatever about the harm that the return

     to South Africa will cause. It is not just the uncertainty about

     the stability of his parents' marriage and their relationship nor

     about their housing conditions nor economic security nor personal

     safety. He will leave the comforts of Maida Vale for the

     comparative discomfort of Brakpan. I am sure he will cope with

     all that. The real harm is spelled out by Dr. Cameron ... in the

     following extracts from his evidence:

           If you take him away now from the family

           against his will, then the risk is that he will go downhill

           emotionally, he will go downhill psychologically, he will

           pine for the and , he will get

           grumpy and disagreeable, he will not quickly grasp Ndelele

           and Afrikaans, he will be a bit of an outsider with the

           group when he gets there and everything may go horrible

           wrong...

           To remove him in the middle of a turmoil of disagreement

           would be very profoundly damaging, to such an extent that

           the boy might never recover his poise and psychological

           well-being and confidence. That is what worries me!"

     He was however in agreement with the judge that the boy's

development must be, in the last resort and profoundly, Zulu, which

input he would not receive in London where there was no prospect of

meaningful contact with his natural family. He concluded that the

supposition in favour of return was not outweighed by the other

relevant factors.

     On 26 April 1996, the House of Lords refused the applicant leave

to appeal against the decision of the Court of Appeal.

     On 3 May 1996, the Court of Appeal refused an application to stay

its order pending application to the European Commission of Human

Rights. Consequently, Phiso was handed over to his mother and, in the

beginning of May 1996 following an initial postponement of the

departure by one day caused by Phiso's distress, left with her for

South Africa.

     On 5 December 1996, Phiso returned to the United Kingdom with the

consent of his natural parents. As from 6 December 1996 onwards Phiso

has been living with the applicant and her family.

     By decision of 25 February 1997, following leave for appeal

granted to the Official Solicitor, the High Court ordered, inter alia,

the discharge of the orders of 5 March 1996, i.e. that Phiso be placed

in the care and control of his parents who were granted leave to remove

him permanently from the jurisdiction and that there be reasonable

contact as agreed between the parties including staying contact twice

per annum. The High Court further ordered that Phiso remain a ward of

the court, granted the applicant a residence order in respect of Phiso

and outlined the contact and visiting arrangements between Phiso and

his natural parents.

COMPLAINTS

In respect of Phiso

     The applicant complains that the removal of Phiso from her care

and returning him to South Africa constitutes treatment in violation

of Article 3 of the Convention and discloses a lack of respect for his

rights under Article 8 of the Convention. It is also alleged that Phiso

did not receive a fair hearing as required by Article 6 para. 1 of the

Convention.

In respect of the applicant

     The applicant complains under Article 6 para. 1 that she did not

receive a fair hearing in the proceedings before the domestic courts

and under Article 8 that there was a failure to respect her family

life. She also invokes Article 13 of the Convention contending that she

had no effective remedy for her complaints.

     She refers to the following factors:

     -     a failure to give due weight to the wishes and feelings of

           Phiso and the Official Solicitor who represented him;

     -     a failure to give proper weight to the fact that she was

           the psychological parent of Phiso, with a close bond going

           back throughout his whole life and with whom Phiso had a

           deep emotional attachment;

     -     a lack of regard to the uncontradicted evidence of the

           expert child psychiatrist as to the significant damage that

           Phiso would suffer if uprooted immediately.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 30 April 1996 and registered

on 2 May 1996. Also on 2 May 1996, the President of the Commission

decided to indicate to the Government, in accordance with Rule 36 of

the Commission's Rules of Procedure, that it was desirable to suspend

the measure returning Sophiso Masango until the Commission had had an

opportunity to examine the application.

     On 24 May 1996 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

22 July 1996.  The applicant replied on 3 October 1996, after an

extension of the time-limit fixed for this purpose.

     On 13 September 1996 the Commission granted the applicant legal

aid.

     By letter of 24 March 1997, the Government informed the

Commission of the decision of 25 February 1997 of the High Court and

submitted that, in these circumstances, the application had become

substantially without object.

     The applicant's reaction to the Government's letter of

24 March 1997 was received on 23 April 1997.

     On 8 September 1997, the applicant submitted additional

information to the Commission on Phiso's current situation.

THE LAW

1.   The applicant complains both herself and on behalf of Phiso that

his removal from the applicant's care and his return to South Africa

disclose a lack of respect for their rights under Article 8 (Art. 8)

of the Convention.

     Article 8 (Art. 8) of the Convention reads 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 Government submit in the first place that the applicant

cannot make complaints on behalf of Phiso under the Convention. Given

the existence of a real conflict of interest between them related to

the question whether Phiso should be left in the care and control of

the applicant or of his natural parents, the applicant cannot be

regarded as a proper person to represent the interests of Phiso.

     The applicant submits that Article 25 (Art. 25) of the Convention

is to be applied with flexibility in the case of children applicants

so as to ensure their effective representation and that, in the present

case, no one but the applicant is available to represent Phiso before

the Commission. His natural parents will obviously not do so nor is

representation available through the Official Solicitor on grounds of

his being part of the Government.

     The Commission notes that at the time of the introduction of the

application on 30 April 1996, the applicant did not hold custody or

parental rights over Phiso. Moreover, by judgment of 5 March 1996, the

Court of Appeal ordered that Phiso be placed in the care and control

of his parents who were granted leave to remove him permanently from

the jurisdiction.

     The Commission further notes that the applicant has failed to

demonstrate that she is otherwise entitled to represent Phiso before

the Commission with respect to this application and has not

substantiated that Phiso or his legal representative supports the

proceedings before the Commission.

     In these circumstances, the question arises whether the applicant

is capable of introducing an application to the Commission on behalf

of Phiso.

     However, the Commission does not find it necessary to determine

this issue, as the application is in any event inadmissible for the

following reasons.

     As to the substance, the Government submit that the ties between

the applicant and Phiso do not constitute family life within the

meaning of Article 8 (Art. 8) of the Convention as Phiso's natural

parents were seeking his return and, had they known that the applicant

intended to keep him in England, they would not have allowed Phiso to

leave South Africa.

     Even on the assumption that the ties between the applicant and

Phiso would fall within the scope of Article 8 para. 1 (Art. 8-1) of

the Convention, the Government submit that the interference at issue

was justified under the terms of paragraph 2 of this provision as

necessary in a democratic society for the protection of Phiso's rights

and those of his natural parents. After having balanced the various

interests involved, in which Phiso's views and interests were held to

be decisive, and acknowledging that any solution would involve damage

for Phiso, it was found that Phiso's return to his natural parents

would cause him least damage. The Government consider that this

decision was very far from amounting to arbitrary interference with the

rights at issue.

     The applicant submits that Phiso's ties with the applicant and

her children far outweigh the actual links with the natural parents,

and his long standing ties with the applicant and her children fall

within the scope of the rights guaranteed by Article 8 para. 1

(Art. 8-1) of the Convention in that these rights include the right to

establish and develop relationships. Given the medical evidence of the

damaging effects of Phiso's forcible removal, against his own will,

from his de facto family, the applicant submits that the interference

at issue is to be considered as having a disproportionate and predicted

adverse impact upon Phiso and thus is not "necessary in a democratic

society" within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

     The Commission notes that Phiso has returned to the United

Kingdom on 5 December 1996 and has been living with the applicant and

her family as from his return. The Commission further notes that, on

25 February 1997, the High Court ordered the issuance of a residence

permit to Phiso, thus allowing him to remain in the United Kingdom with

the applicant and her family.

     The Commission recalls that the question whether an applicant can

claim to be a victim of a violation of the Convention is relevant at

all stages of the proceedings and that someone who has obtained redress

at the domestic level for the alleged violations the Convention cannot

claim to be a victim of those violations (cf. No. 17926/91,

Dec. 28.6.93, D.R. 75, p. 167).

     As on 25 February 1997 Phiso has been given the right to take up

residence in the United Kingdom with the applicant, the Commission

considers that the applicant and Phiso can no longer claim to be

victims within the meaning of Article 25 (Art. 25) of the Convention

as regards their complaints under Article 8 (Art. 8) of the Convention.

     It follows 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 further complains on behalf of Phiso that his

removal from her care and his return to South Africa constituted

treatment contrary to Article 3 (Art. 3) of the Convention.

     Article 3 (Art. 3) of the Convention reads:

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

     The Government submit that the damage to Phiso did not attain the

level of severity necessary to establish a breach of Article 3

(Art. 3) of the Convention, having regard to the nature of any damage

and the context in which it was inflicted, namely where a court has

anxiously and carefully considered the risk of damage involved in each

alternative decision and has opted for the decision which in its

opinion was least damaging to the child.

     The applicant submits that the facts of the case disclose a clear

breach of Article 3 (Art. 3) of the Convention. The suffering and

humiliation Phiso endured was not only predicted by the sole and

unchallenged expert medical opinion, but was also graphically borne out

by events prior to his forcible removal, in particular his extreme

distress causing a postponement of his removal and his subsequent

treatment.

     The Commission considers in the first place that Phiso's

admission to the United Kingdom does not deprive him of the status of

"victim" within the meaning of Article 25 (Art. 25) of the Convention

in respect of the complaint under Article 3 (Art. 3) of the Convention,

as this complaint is not only based on the decision to entrust him to

his natural parents, as such, but also on the strain and distress the

implementation of this decision caused him.

     As to the substance of the complaint, the Commission recalls the

general principles determined by the Court as regards Article 3

(Art. 3) of the Convention in respect of a removal by a Contracting

State of a non-national (Eur. Court HR, Nsona v. the Netherlands

judgment of 28 November 1996, Reports 1996-V, No. 23, para. 92).

     Given that Phiso is not a national of the United Kingdom and that

he has no formal family ties with the applicant and her family, the

Commission considers that the United Kingdom was in principle entitled

to refuse Phiso permission to take up permanent residence in the United

Kingdom.

     The Commission further considers that the situation at issue is

exceptional and any decision taken by the judicial authorities in

Phiso's case would inevitably entail a certain degree of hardship to

the parties involved.

     The Commission notes that, before his departure from South

Africa, Phiso had always lived with the applicant and her family in the

direct vicinity of his natural parents. He left for the United Kingdom

with the applicant and her family on the understanding that there would

be regular contacts between him and his natural family, an

understanding which, however, does not appear to have been implemented.

     The Commission further notes that the decision at issue was taken

after judicial proceedings in which the various interests at stake were

carefully balanced against each other and in which Phiso's interests

appear to have been the central point of attention. On the basis of

this decision, Phiso was to be reunited with his natural parents in

South Africa, of which he is a national and where he has resided for

a major part of his life.

     In these circumstances, the Commission accepts that this decision

and the practical implementation thereof must have caused this young

child considerable emotional strain and distress. However, it cannot

find that the decision and treatment of Phiso was of such a nature that

it would warrant a finding that he has been a victim of "inhuman or

degrading treatment" within the meaning of Article 3 (Art. 3) of the

Convention inflicted by the authorities of the United Kingdom.

     It follows that this part of the application is also manifestly

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

Convention.

3.   The applicant further complains that she and Phiso did not

receive a fair hearing within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention in the proceedings which resulted in the

decision of 5 March 1996 of the Court of Appeal.

     Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

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

     everyone is entitled to a fair ... hearing ... by a ...

     tribunal..."

     The Commission notes that the decision which resulted from the

proceedings complained of has been set aside by the High Court in its

decision of 25 February 1997.

     In these circumstances, the Commission considers that the

applicant and Phiso can no longer claim to be victims within the

meaning of Article 25 (Art. 25) of the Convention as regards this part

of the application.

     Even assuming that the applicant and Phiso could still be

considered as victims under Article 25 (Art. 25) of the Convention, the

Commission notes that the decision of 5 March 1996 was taken after

adversarial proceedings in which all parties were represented by

counsel and were given ample opportunity to state their case and to

submit whatever they found relevant for the outcome of the proceedings.

     In these circumstances, the Commission finds no indication that

these proceedings fell short of the requirements of Article 6 para. 1

(Art. 6-1) of the Convention.

     It follows that this complaint is also manifestly ill-founded

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

4.   The applicant finally complains that she had no effective remedy

within the meaning of Article 13 (Art. 13) of the Convention as regards

her complaints under the Convention.

     Article 13 (Art. 13) provides as follows:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority notwithstanding that the violation has been

     committed by persons acting in an official capacity."

     The Commission considers that, having regard to its above

findings as regards the complaint under Article 6 para. 1 (Art. 6-1)

of the Convention, it is unnecessary to examine the complaint under

Article 13 (Art. 13) of the Convention since the requirements of the

latter provision are less strict and are here absorbed by those of

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

     It follows that this complaint must also be rejected under

Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly

ill-founded.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

        M. de SALVIA                        S. TRECHSEL

          Secretary                          President

      to the Commission                   of the Commission