AS TO THE ADMISSIBILITY OF

                      Application No. 28154/95

                      by LF

                      against Ireland

     The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

           Mr.   M.P. PELLONPÄÄ, Acting President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 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 10 January 1995

by LF against Ireland and registered on 7 August 1995 under file

No. 28154/95;

     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, a male to female transsexual, was born in 1947 and

was registered as a male at birth. She holds both Irish and United

Kingdom passports and is resident in Co. Kildare, Ireland.

     The facts as submitted by the applicant may be summarised as

follows.

A.   Particular circumstances of the case

     The facts as submitted by the applicant may be summarised as

follows. The applicant married AF on 28 September 1977. They had two

children, A and B, born on 16 August 1978 and 18 October 1980,

respectively. Following recurrent eating difficulties and gender

related illness the applicant collapsed and was hospitalised in August

1989. She began gender re-assignment treatment on 6 September 1989. By

March 1991 the applicant was completely in role as a woman. Following

medical assessment of the applicant's condition, a grant was approved

by the Eastern Health Board for corrective genital surgery. This

surgery was carried out in England on 25 July 1992.

1.   Birth Certificate

     On 5 December 1993 the applicant's solicitors wrote to the

General Register Office as regards amending the applicant's birth

certificate in light of her transsexualism and gender re-assignment

surgery. On 17 December 1993 the Assistant Registrar General responded

that:

     "The entry in the birth register is the record of an event; it

     is thus confined to the facts relating to the circumstances of

     the birth at the time of the birth in question. The birth entry

     is not, nor was it intended to be, a personal record which would

     be updated to take account of each significant change in the life

     history of the subject. For example, when a child is adopted, no

     change is made in the relevant entry in the register of births.

     Similarly when a person marries, his or her birth entry is not

     annotated in any way.

     The format of an entry in the register of births requires the

     recording of the sex of the Child in Column 4. For obvious

     reasons the genital characteristics of the child would be used

     at birth to determine sex and a determination on this basis would

     be reflected in column 4 of the relevant birth entry. ...

     treatment>, however, has no bearing on the facts of the birth and

     accordingly there would not appear to be any scope for an

     amendment to the relevant entry in the register of births.

     I regret that we cannot accede to your client's request in this

     matter."

     By letter dated 26 September 1994 the Ombudsman indicated that

he was satisfied that he could not recommend a change of the decision

regarding the applicant's birth certificate, the Ombudsman not

considering that it would be appropriate to alter the practice of

determining the gender of a baby on the basis of genital

characteristics. Letters dated 5 January 1995 and 10 May 1995 from

subsequent Ombudsmen confirmed the original response from that office

and noted that to accede to the applicant's wish would require a change

in legislation.

     A letter dated 17 January 1996 from the General Register Office

essentially repeated the contents of that office's earlier letter as

regards amendments to birth certificates.

     On 11 July 1996 the Free Legal Advice Centre ("FLAC") indicated

to the applicant its agreement to take up the issue of the birth

certificate on her behalf. By letter dated 3 December 1996 FLAC made

a formal application to the General Register Office requesting that the

birth register be amended on the basis that, as a result of a failure

to detect the applicant's disability at the time of her birth and an

incomplete understanding of the applicant's condition, her sex was

"erroneously" recorded as male. FLAC noted that neither the relevant

legislation nor the regulations made thereunder provide for any one

specific method of determination of the sex of a child. Proceedings for

judicial review (on the basis of a breach of the applicant's

constitutional rights to privacy, dignity, equality and the right to

marry) were threatened in the event of a refusal to amend the birth

certificate.

     The General Register Office replied by letter dated

11 February 1997 pointing out, in addition to the explanations

contained in previous letters, that the format of the entry in the

register of births is prescribed by section 30 of the Births and Deaths

Registration (Ireland) Act 1863 and that the schedule to that Act

requires the recording of the sex of the child in column 4.

     On 14 April 1997 the applicant was granted leave to take judicial

review proceedings in relation to the refusal by the General Register

Office to amend her birth certificate. The Attorney General is a

respondent to those proceedings since the applicant challenges, as an

alternative to the judicial review submissions, the constitutionality

of the relevant parts of the Births and Deaths Registration (Ireland)

Act 1863.

     The applicant has submitted an invitation from the adult

education centre of a college dated 29 September 1995 to attend a

conferring ceremony, the relevant acceptance form indicating that the

form was to be filled out "including your full Christian name as stated

on your Birth Certificate". A letter dated 12 February 1996 from the

Training and Employment Authority confirmed to the applicant that she

was being offered training in a course and that she should bring with

her when attending, inter alia, her birth certificate.

     By application made in the United Kingdom dated 18 March 1991 the

applicant changed her name by deed poll and she has held a British

passport in her new name and recording her female sex since

23 August 1991. On 23 November 1993 the Registrar of the Irish High

Court confirmed that the Irish Deed Poll was enrolled on

16 November 1993 and the applicant has held an Irish passport in her

new name and recording her female sex since 15 February 1993.

2.   Judicial separation, access to children and the family home

     Prior to April 1991 AF and the applicant separated and agreed,

inter alia, the terms and conditions of the applicant's access to the

children. AF requested, and the applicant agreed, that the applicant

would not disclose her transsexualism to her children. The applicant

and AF had attended a child psychiatrist who advised, pending further

investigation of the matter, that the children should not be informed

of the situation. On 24 April 1991 the applicant's wife issued judicial

separation proceedings.

     On 13 December 1991 AF and the applicant agreed to settle the

judicial separation proceedings and the settlement was confirmed by

Circuit Court order of the same date. The Circuit Court order submitted

by the applicant records the parties' agreement to a judicial

separation, that AF be granted custody of the children and exclusive

right of residence in the family home, that the applicant was excluded

from the family home and undertook only to enter the house on the basis

of an express wish from AF, that the applicant would have access to the

children each Sunday and on Sunday night once a month with the

applicant having sole access to the children one weekend a month, that

the question of maintenance be adjourned until the applicant was

employed and that neither party would commit any act to jeopardise the

value of their respective joint shares in the family home.

     That order also records, as a term of the settlement, that the

applicant agreed to act, behave and dress as a male during access

visits. However, the applicant claims that the Circuit Court order

recording the settlement was fraudulently amended to include this

condition. However, the applicant's solicitor's letter dated

21 March 1994 points out that the applicant's solicitor (having

consulted with counsel who acted for the applicant in December 1991)

considered that the Circuit Court order represented the sense of the

settlement terms and that at no stage was it envisaged that the

applicant would attend for access dressed as a woman.

     The applicant was due to see her children a few days after AF was

informed of the applicant's gender reassignment surgery (which surgery

took place on 25 July 1992). Since the applicant's access visit was

imminent, AF felt compelled to explain the applicant's position, her

treatment and the gender assignment operation to A (then 14 years old)

and B (then 12 years old). AF later reported (to the consultant

psychiatrist referred to below) that A reacted badly and expressed a

lot of anger at the applicant and B cried and seemed not to know what

to say. Accordingly, AF contacted her solicitors and said that the

children did not wish to see the applicant as they were too upset.

     A letter dated 19 October 1992 from the AF's lawyers rejected the

applicant's allegations of insensitivity as regards the children being

told about her gender re-assignment surgery, made reference to a letter

which the applicant had sent to her children which apparently upset the

children greatly and noted that the children did not want to hear or

see from the applicant at that point in time.

     On 1 July 1993 the applicant turned up at the family home. The

applicant claims that she was dressed in a gender neutral way and but

AF alleges that she was dressed in female attire, wearing a skirt and

dressed in pink. The police were called to the house by AF. By letter

dated 12 July 1993 the applicant's solicitor informed the applicant

that AF was threatening to apply to re-open the judicial separation

proceedings including the access issue, that there was a serious risk

that a court would find that the applicant valued her expression of

femininity more highly than access to her children and would formally

deny her access, that she was at risk of being barred from the family

home and that AF would probably request the court for a transfer of the

applicant's interest in the family home in default of maintenance.

Accordingly, and in order to avoid a full reconsideration of the

separation agreement, the applicant was asked by her lawyer to give an

undertaking not to approach the family home.

     By letter from AF's solicitors dated 14 October 1993 the

applicant's solicitors were informed that the applicant had again

called to the family home without prior notice or the consent of AF.

B had opened the door to the applicant had become upset and hysterical.

Having left the house the applicant returned twenty minutes later

wishing to speak to B again. It was pointed out that the applicant had

given B a birthday present and some material on gender re-assignment,

that the applicant was in breach of the existing Circuit Court order

of December 1991 and that that order had been furnished to the police

so that if such events re-occurred a court application would be made

to find the applicant in contempt of court.

     By letter dated 1 November 1993 the applicant's solicitor was

informed that AF had obtained an interlocutory barring order from the

Circuit Court on 29 October 1993 on an ex parte basis barring the

applicant from the family home pending the outcome of the current

proceedings (due for hearing in December 1993) which had in the

meantime been issued for a re-consideration of the separation

agreement. (The applicant's current name was employed in the title of

those proceedings). On 3 December 1993 the applicant applied by way of

a notice of motion to the Circuit Court to set aside the barring order

indicating that the applicant had undertaken not to approach the family

home.

     A report dated 10 May 1994, prepared by a consultant child

psychiatrist instructed on the applicant's behalf for the purposes of

the on-going proceedings, advised on the question of access by the

applicant to her two children. For the purposes of the report the

applicant, AF and the two children were interviewed. The consultant

considered that the applicant's opinion, that if she were able to meet

with the children and explain to them the reasons for the surgery

everything would resolve itself and there would be regular contact

between them, was naive. He noted that neither of the children had any

preparation for the surgery which had deprived them of a father. He did

note that it had been required by AF, and the applicant had agreed,

that no such preparation or discussion would take place. The

applicant's gender reassignment has been a momentous event in the

children's lives, they not only having lost their parents' marriage but

their father as well.

     The consultant noted that the children were unable to countenance

even the most non-threatening communication with the applicant and,

consequently, he could not recommend that there should be access

between the children and the applicant adding that both of the children

did not wish to see the applicant, were clear about this and were quite

independent children. He did not consider that the children were being

overly influenced by their mother in making that decision, the only

influence which he noted was that the children need to maintain a good

relationship with AF during a time of such flux and change occasioned

by their parents' separation and their father's transsexual surgery.

He concluded by stating that the children demonstrated a strong

attachment to the father they knew, and were distressed by this loss.

It would, in his view, take some time before they could adjust to the

person their father had become, that this would in time come about and

that in the future they would be in touch with their father and the

respective relationships would re-commence.

     On 20 May 1994 the Circuit Court, having heard submissions from

counsel for the parties, made no order as to access and ordered that

the applicant's interest in the family home be transferred to AF

pursuant to the provisions of the Judicial Separation and Family Law

Reform Act 1989 in the absence of the provision of maintenance by the

applicant and that the barring order continue until further order. On

14 October 1994 the High Court, having heard counsel for both parties,

confirmed the order of the Circuit Court of 20 May 1994 adding that the

applicant was to be restrained from being within one mile of the family

home.

     The applicant received a letter dated 17 January 1996 from the

Mullingar County Registrar's office addressing her as "Mr." and prior

to that date and thereafter in January 1996 she received letters from

the same and other Country Registrar's offices addressing her by her

current name, as "Dr." and as "Madam".

     By letter dated 1 February 1996 the applicant's solicitors

informed the applicant that the application for legal aid (in order to

obtain counsel's opinion on the prospects of re-opening the proceedings

in order to renew access and to have the applicant's equity in the

house restored) had been refused on the basis that it would not be in

conformity with the purpose and terms of the legal aid scheme to grant

it, that the applicant had as a matter of law no reasonable grounds for

taking, defending or being a party to proceedings, that the applicant

had not made a case for being granted a certificate which is such as

to warrant the conclusion that she was reasonably likely to succeed and

that, having regard to all the circumstances of the case, it would not

be reasonable to grant legal aid. By letter dated 1 May 1996 the

applicant's lawyer confirmed the rejection, by the area committee of

the legal aid board, of the applicant's appeal against the refusal of

further legal aid.

3.   Employment

     From February 1987 the applicant was employed as a dental surgeon

in a temporary capacity by the Eastern Health Board. On 22 October 1990

she received a letter from her employer informing her that it was not

proposed to continue her employment after 30 November 1990. No reason

was given for the termination of her employment, the termination was

the subject of discussion and correspondence with her legal

representatives and an agreed settlement was reached. On

17 September 1991 the applicant was refused unemployment benefit. On

8 November 1991 the health board furnished the applicant with a

reference which simply confirmed the period and nature of the

applicant's employment.

COMPLAINTS

     The applicant complains under Article 8 of the Convention about

the denial of a birth certificate recording her female sex.

     She also complains under Articles 6 and 8 about the denial of

access to her children, the transfer to her wife of her interest in the

family home and about the related proceedings.

     The applicant also invokes Article 3 of the Convention as regards

the failure by the courts to acknowledge her female gender.

     The applicant further complains under Articles 8 and 10 of the

Convention about the loss of her job with the Eastern Health Board and

about the latter's failure to give her an appropriate employment

reference.

     She also complains that she was denied unemployment benefit. She

also invokes Article 14 of the Convention in conjunction with all of

the above Articles claiming that she was discriminated against because

she is a transsexual.

     Finally, the applicant invokes Article 13 of the Convention

claiming that she has no effective domestic remedies in respect of the

above complaints.

THE LAW

1.   The applicant complains under Article 8 (Art. 8) alone and in

conjunction with Article 14 (Art. 8+14) of the Convention about the

denial of a birth certificate recording her female sex. She submits

that she was born with Gender Identity Disorder (transsexual syndrome)

and that her birth certificate should acknowledge her female gender.

She argues that a birth certificate is required for certain matters

including employment, third level education, passport applications and

for marriage.

     The Commission recalls that, in a legal system which provides

constitutional protection of fundamental rights, it is incumbent on the

aggrieved person to test the extent of that protection and, in a common

law system, to allow the domestic courts to develop those rights by way

of interpretation (No. 24196/94, Dec. 22.1.96, D.R. 84-A, p. 72). The

Commission also notes that the applicant has recently initiated

judicial review and constitutional proceedings in relation to the

refusal to amend her birth certificate, which proceedings have not as

yet terminated. Moreover, the Commission considers that an examination

of the case, as it has been submitted, does not disclose the existence

of any special circumstances which would absolve the applicant from

exhausting the domestic remedies now being pursued by her

(No. 14556/89, Dec. 5.3.91, D.R. 69, p. 261).

     Accordingly, the Commission considers that the applicant has not,

as matters stand, exhausted domestic remedies within the meaning of

Article 26 (Art. 26) of the Convention and these complaints are,

therefore, inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of

the Convention.

2.   The applicant also complains under Articles 6 and 8 (Art. 6, 8)

alone and in conjunction with Article 14 (Art. 6+14, 8+14) of the

Convention about the denial of access to her children, about the

removal of her interest in the family home and about the relevant

proceedings in those respects.

     The applicant makes numerous submissions in this respect alleging

widespread fraud, collusion and bias. She submits that she did not have

a fair or unbiased hearing at any time because her name and medical

condition were ridiculed by the Circuit and High Courts on 20 May and

14 October 1994, respectively, that the Circuit Court order of

13 December 1991 was fraudulently altered (to add the condition that

the applicant would at all times in the presence of the children act,

behave and dress as a male) and that her then and subsequent legal

representatives colluded in covering up that fraud, that she had no

access to the original agreement which she had signed in December 1991

or to a psychiatric report which was used against her in the domestic

proceedings. She further alleges that the child psychiatrist who

completed the report dated 10 May 1994 was biased as were her legal

representatives. She also argues that she has been refused further

legal aid unless she comes up with "new circumstances". Finally, she

claims that the barring order was obtained by illegal procedures and

on the basis of dishonesty and situations which did not happen.

(a)  Article 8 (Art. 8), insofar as relevant, provides as follows:

     "1.   Everyone has the right to respect for his ... family life,

     his home ...

     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 health or morals, or for the protection of the

     rights and freedoms of others."

     The Commission's task is to establish whether there has been an

interference with the rights guaranteed under Article 8 (Art. 8) of the

Convention and, if so, whether it is justified under Article 8 para. 2

(Art. 8-2) of the Convention, namely, whether any such interference is

"in accordance with the law", pursues one or more of the legitimate

aims set out in Article 8 para. 2 (Art. 8-2) and whether it is

"necessary in a democratic society" for one or more of those reasons.

     As far as access is concerned, the Commission notes at the outset

that prior to the separation proceedings being issued, the parties had

agreed between themselves the terms and conditions of access. The

subsequent judicial separation proceedings were definitively settled

insofar as they related to the terms and conditions of access in

December 1991 by the applicant and AF. The purpose of the Circuit Court

order was to give the settlement terms the force of a court order. The

Commissions considers that the later re-opening of, inter alia, the

access issue pursuant to the applicant's actions in 1993 does not

affect the final nature of the December 1991 Circuit Court order for

the purposes of the time-limit set down by Article 26 (Art. 26) of the

Convention. Accordingly, the Commission considers that, insofar as the

December 1991 Circuit Court order involves an interference by a public

authority in relation to the applicant's access to her children, any

complaint in that respect has been introduced outside of the six-month

time-limit set down by Article 26 (Art. 26) of the Convention, the

application having been introduced on 10 January 1995. This complaint

is therefore inadmissible pursuant to Article 27 para. 3 (Art. 27-3)

of the Convention. The Commission has referred below to the December

1991 Circuit Court order insofar as it is relevant to later

proceedings.

     However, the Commission considers that the decisions of the

domestic courts in October 1993, May 1994 and in October 1994 to, inter

alia, impose and maintain a barring order against the applicant,

constituted an interference with her right to respect for her family

life as guaranteed in Article 8 para. 1 (Art. 8-1) of the Convention

since the purpose and effect of those decisions was to deny the

applicant access to her children (Eur. Court HR, Eriksson v. Sweden

judgment of 22 June 1989, Series A no. 156, pp. 27, 59).

     As to whether the decisions as to the barring order were lawful,

the Commission notes that the applicant claims that the barring order

was obtained by illegal procedures and on the basis of dishonesty and

misrepresentation of the facts. As noted above, the applicant alleges

that the Circuit Court order of 13 December 1991 was fraudulently

altered to add the condition that she would at all times in the

presence of the children act, behave and dress as a male. She also

submits that she was, in any event, dressed in a gender neutral way

when she visited the family home in 1993. The Commission notes that the

applicant's then and subsequent legal representatives have confirmed

their view that the Circuit Court order reflected the terms of the

settlement between the parties. Although the applicant alleges

collusion on the part of those legal representatives in covering up the

alleged fraudulent alteration of the Circuit Court order, the

Commission considers these allegations unsubstantiated. Having reviewed

the documents submitted, the Commission does not consider that the

applicant's submissions demonstrate that the Circuit Court order dated

13 December 1991 reflects anything other than an accurate record of an

agreement between the parties as to the conditions for, inter alia, the

applicant's access to the children.

     As to the applicant's compliance with that Circuit Court order,

the Commission considers that the documents submitted by the applicant,

including the child psychiatrist's report and both parties' solicitors'

letters, do not support her claim that she was dressed in a gender

neutral manner during her visits to the family home in 1993. The

Commission further considers that the applicant has not substantiated

in any way her allegations of bias on the part of that child

psychiatrist. In any event, the Commission notes that, apart from the

issue of the applicant's dress and comportment during those visits, the

applicant did not receive a request to attend at the family home, a

condition of the December 1991 Circuit Court order which the applicant

does not dispute. Furthermore, it is also apparent from the documents

submitted by the applicant, that the Circuit and High Court exercised

its jurisdiction in the interests of the applicant's children.

     Accordingly, the Commission finds the domestic courts, in

imposing and maintaining the barring order, were exercising their

inherent injunctive jurisdiction as a result of the applicant's

attendance at the family home in 1993 in breach of the Circuit Court

order of 13 December 1991 and that the relevant decisions were

therefore "in accordance with law" and in pursuit of the legitimate

aims of protecting the children's health and rights.

     As to whether this measure was necessary within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention, the case-law of the

Convention organs establishes that the notion of necessity implies that

the interference corresponds to a pressing social need and that it is

proportionate to the aim pursued. Furthermore, in determining whether

an interference is necessary, the Convention organs take into account

that a margin of appreciation is left to the Contracting States who are

in principle in a better position to make an initial assessment as to

the necessity of given measure (Eur. Court HR, W. v. the United Kingdom

judgment of 8 July 1987, Series A no. 121, p. 27, para. 59). When

determining whether or not the decision refusing access was necessary,

the Commission observes that it is not its task to take the place of

the competent national courts and make a fresh examination of all the

facts and evidence. The Commission's task is to examine whether the

reasons adduced to justify the interference at issue are "relevant and

sufficient" (Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988,

Series A no. 130, p. 32, para. 68).

     In the first place, the Commission is cognisant of the position

as regards access with which the domestic courts were presented in

October 1993 when the first application for a barring order was

decided. The applicant's access to her children had, up to that point,

been regulated by agreements between the applicant and AF. The

Commission has also found that it was the applicant's breach of the

December 1991 Circuit Court order by, at the very least, the

applicant's attendance without invitation at the family home in 1993

which led to the application for a barring order. The decisions of the

courts, initially, on an ex parte basis and, subsequently, after a

hearing before the Circuit and High Courts in May and October 1994,

respectively at which both parties were legally represented was to

impose a barring order and to maintain that order in place until a

further order of the court.

     Secondly, and while the applicant has not submitted the judgment

of the High Court (the last decision on this matter), the Commission

has had particular regard to the child psychiatrist's report dated

10 May 1994 which was obtained by the applicant's solicitors on her

behalf for the purposes of the ongoing proceedings in relation to,

inter alia, the barring order and in order to advise on the question

of access by the applicant to her two children. That psychiatrist

concluded that the applicant's view, that if she were able to meet with

the children and explain to them the reasons for the surgery everything

would resolve itself and there would be regular contact between them,

was naive. He noted that the applicant's gender reassignment has been

a momentous event in the children's lives and that the children were

unable to countenance even the most non-threatening communication with

the applicant. He could not recommend that there should be access

between the children and the applicant adding that both the children

did not wish to see the applicant, were clear about this and were quite

independent children. While he was not adverse to the idea of contact

in the future, he advised against at that time in view of the

children's wishes and position. The Commission has noted above its view

of the applicant's allegation of bias against this psychiatrist.

     In the above circumstances, the Commission considers that the

domestic courts had relevant and sufficient reasons, within the meaning

of Article 8 para. 2 (Art. 8-2) of the Convention, to have imposed and

maintained in force the barring order against the applicant.

     As to the applicant's complaint about the transfer of her

interest in the family home and insofar as this gives rise to an

interference with the applicant's rights under Article 8 (Art. 8) of

the Convention, the Commission notes that the applicant submits that

this was unlawful but does not specify in what respect. The Commission

recalls that the initial Circuit Court order of December 1991 adjourned

the matter of maintenance (and effectively the question of the transfer

of the applicant's interest in the family home in default of

maintenance) which step the Commission considers was for the

applicant's benefit because the applicant was at the time unemployed.

Moreover, the Circuit and High Courts, in making and confirming the

transfer of the applicant's interest, did so expressly in pursuance of

the Judicial Separation and Family Law Reform Act 1989. In addition,

the Commission recalls that the transfer of the applicant's interest

was made in default of the payment of any maintenance by the applicant.

In such circumstances, the Commission is of the view that this decision

had a legitimate aim, being the financial provision for the applicant's

family, and that it was proportionate in that it constituted an order

by a court for the satisfaction of a maintenance obligation which the

applicant had not been in a position to otherwise fulfil.

     However, the Commission also recalls that there are certain

procedural requirements implied in Article 8 (Art. 8) of the Convention

in order to ensure effective respect for family life (Eur. Court HR,

H. v. the United Kingdom judgment, loc. cit., pp. 27-28 and 59, paras.

87-90 and W. v. the United Kingdom judgment, loc. cit., pp. 28-29, pp.

63-65).

     As to the proceedings on the access issue, the Commission notes

that the applicant was represented throughout the relevant proceedings,

she having been granted free legal aid in that respect. As noted above,

the Commission considers the applicant's allegations as regards her

legal representatives unsubstantiated. The Commission is satisfied that

the applicant was given the possibility of putting forward any views

which in her opinion would be decisive for the outcome of the case. The

Commission also considers that the length of the overall proceedings

in relation to access was not unreasonable and it does not appear that

it led to a de facto determination of the access issue by the mere

effluxion of time or deprived the applicant of a decision upon the

merits of the case - the proceedings re-opening the access matter

issued between July 1993 and October 1993 and the access matter was

decided by the courts' decisions on the barring order taken in October

1993, May 1994 and, subsequently, on appeal in October 1994.

     As to proceedings in relation to the applicant's interest in the

family home, the applicant was also legally represented during all

relevant proceedings. The matter of maintenance was expressly left open

by the December 1991 Circuit Court order for the benefit of the

applicant and once the proceedings issued for a re-consideration of

this matter (July to October 1993) the matter was decided, at first

instance, by May 1994 and, on appeal, in October 1994.

     Accordingly, the Commission considers that the procedural

requirements implicit in Article 8 (Art. 8) of the Convention were

complied with and that the applicant was involved in the decision-

making process as regards access and her interest in the family home

to a degree sufficient to provide her with the requisite protection of

her interests.

     In such circumstances, the Commission concludes, bearing in mind

the margin of appreciation accorded to the domestic authorities, that

the interferences with the applicant's rights contained in Article 8

(Art. 8) of the Convention, were justified as being "necessary in a

democratic society" for the protection of the health and rights of the

children. Consequently, this part of the application is manifestly ill-

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

Convention.

(b)  The applicant also invokes Article 6 (Art. 6) as regards the

domestic proceedings, which Article, insofar as relevant, reads as

follows:

     "1.   In the determination of his civil rights ..., everyone is

     entitled to a fair and public hearing within a reasonable time

     by an independent and impartial tribunal established by law."

     Insofar as the applicant argues under this Article that the

decisions of the courts were wrong, the Commission recalls that, in

accordance with Article 19 (Art. 19) of the Convention, its only task

is to ensure the observance of the obligations undertaken by the

parties in the Convention. In particular, it is not competent to deal

with an application alleging that errors of law or fact have been

committed by domestic courts, except where it considers that such

errors might have involved a possible violation of any of the rights

and freedoms set out in the Convention. The Commission refers, on this

point, to its constant case-law (see eg. No. 458/59, X. v. Belgium,

Dec. 29.3.60, Yearbook 3, pp. 222, 236; No. 5258/71, X. v. Sweden, Dec.

8.2.73, Collection 43, pp.71, 77; No. 7987/77, X. v. Austria, Dec.

13.12.79, D.R. 18, pp. 31, 45). In particular, the Commission recalls

that it is not for the Commission to re-assess the factual or legal

elements of the case before the domestic courts, given that the

decisions taken had, as noted above, a basis in law and were based on

relevant and sufficient reasons (see, for example, No. 24604/94, Dec.

6.9.95, unpublished).

     As regards her specific submissions as to procedural

irregularities, the Commission recalls that its task is to assess the

overall fairness of the proceedings as a whole (see, for example, Eur.

Court HR, Dombo Beheer B. v. the Netherlands judgment of

27 October 1993, Series A no. 274, p. 19, para. 31).

     In the first place, the Commission has commented above on the

applicant's allegations as regards her legal representatives, relating

to the accuracy of the Circuit Court order of December 1991 and in

respect of the child psychiatrist who completed the report dated

10 May 1994. As to her allegation about lack of access to a psychiatric

report, the Commission notes that, while the applicant refers to the

name of the author of the report, she has not indicated on whose behalf

the report was obtained or what use was made in the proceedings of this

report.

     Secondly and as to the applicant's allegations of bias on the

part of the domestic courts due to her medical condition, the

Commission recalls that a tribunal must be objectively and subjectively

impartial, the subjective impartiality of a judge being assumed unless

there is proof to the contrary (see, for example, Eur. Court HR,

Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B,

p. 20, paras. 25-26). However, the Commission finds no evidence that

her name or condition were ridiculed by relevant judges as alleged by

the applicant or at all. The Commission also notes, in this respect,

that the title of the proceedings which issued in 1993 included her

present name. In addition the Commission notes its conclusions at 3.

below in these respects. Accordingly, the Commission considers that the

applicant has not demonstrated objective or subjective impartiality or

bias on the part of the courts.

     Thirdly, and as regards the refusal of legal aid for a further

re-opening of the access and family home matters, the Commission

recalls that Article 6 (Art. 6) of the Convention does not guarantee

the right, as such, to free legal aid in civil cases. This Article does

guarantee effective access to court for the determination of civil

rights but it leaves the choice of the means to be used towards this

end to the State and, accordingly, the grant of legal aid may be

subject to certain conditions provided this is not arbitrary (No.

10594/83, Dec. 14.7.87, D.R. 52, p. 158). In the present case, the

Commission notes that the applicant was legally aided for the judicial

separation proceedings which settled in December 1991 and for the re-

opening of those proceedings which were finally determined in October

1994. The Commission considers that the refusal of further legal aid,

on the grounds outlined by the legal aid board, does not constitute an

arbitrary limitation on the applicant's access to court.

     Having regard to the proceedings as a whole, the Commission's

conclusions at 2(a) above as to the relevant and sufficient reasons of

the domestic courts and its conclusions on the specific submissions of

the applicant as to the conduct of the proceedings, the Commission

concludes that the applicant has not demonstrated that she did not have

a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) 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.

(c)  As to the applicant's complaint under Article 14 in conjunction

with the complaints under Articles 6 and 8 above (Art. 14+6+8), the

Commission recalls that Article 14 (Art. 14) of the Convention reads

as follows:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

     The Commission recalls that Article 14 (Art. 14) of the

Convention protects against a discriminatory difference in treatment

of persons in analogous positions, which treatment is considered

discriminatory if it does not pursue a legitimate aim and if there is

no reasonable relationship of proportionality between the means

employed and the legitimate aim sought to be realised (Eur. Court HR,

Darby v. Sweden judgment of 23 October 1990, Series A no. 187, p. 12,

para. 31).

     However, and in the first place, there is no evidence whatsoever

that the applicant's condition was either relevant to or taken into

account by the domestic courts when deciding on the applicant's

interest in the family home. Secondly, the Commission notes that the

over-riding interest in the proceedings relating to the applicant's

access to her children was what was considered to be the best interests

of the children, that being the core concern in all domestic access

cases. Furthermore, the Commission does not find any evidence of

treatment contrary to Article 14 (Art. 14) of the Convention as regards

the conduct of the proceedings relating to the above-mentioned access

and family home matters. Accordingly, the Commission considers that

this complaint is manifestly ill-founded within the meaning of

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

3.   The applicant also invokes Article 3 (Art. 3) of the Convention

alone and in conjunction with Article 14 (Art. 3+14) of the Convention

as regards the failure by the courts to acknowledge her gender by using

"Ms." or "Miss" to address her and by using "Dr." instead. She also

refers to a letter from Mullingar County Registrar's office dated 17

January 1996 which addressed her as "Mr.". Article 3 (Art. 3) of the

Convention provides as follows:

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

     treatment or punishment."

     Even assuming that the applicant's allegations as regards the

courts are substantiated, the Commission considers that they show that

the courts addressed the applicant in a gender neutral manner and, as

noted above, the title of the proceedings issued in 1993 reflected her

current name. The Commission also notes several letters written from

that same and other County Registrar's offices in the same month

addressing the applicant as "Dr.", "Madam" and by her current name. The

Commission does not consider that this approach by the courts or a

single letter from the a County Registrar addressing the applicant as

"Mr." discloses treatment of such a nature or degree as to render it

either inhuman or degrading within the meaning of Article 3 (Art. 3)

of the Convention (Eur. Court HR, Ireland v. the United Kingdom

judgment of 18 January 1978, Series A no. 25, p. 65, para. 162) or a

discriminatory difference in treatment within the meaning of Article

14 (Art. 14) of the Convention outlined at 2 (c) above. 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.

4.   The applicant complains under Articles 8 and 10 (Art. 8, 10)

alone and in conjunction with Article 14 (Art. 8+14, 10+14) of the

Convention about the loss of her job with the Eastern Health Board. She

submits that her employment was terminated without good reason and that

she was denied an appropriate employment reference. She also complains

that she has been denied unemployment benefit.

     However, the Commission notes that the applicant introduced her

application to the Commission on 10 January 1995 and that her

employment had terminated, the matter was settled and she obtained the

relevant employment reference prior to the end of 1991. Accordingly,

the complaints as regards her loss of employment and the employment

reference, together with the Article 14 (Art. 14) complaint raised in

conjunction, have been introduced outside of the six-month time-limit

set down by Article 26 (Art. 26) of the Convention and these complaints

are therefore inadmissible pursuant to Article 27 para. 3 (Art. 27-3)

of the Convention.

     In addition, and insofar as the applicant submits that the

refusal of employment benefit constitutes a continuing violation of the

Convention, the Commission recalls that there is no right guaranteed

by the Convention to receive financial assistance from the State in

order to maintain a certain standard of living (No. 11776/85,

Dec. 4.3.86, D.R. 46, p. 251). Accordingly, the Commission considers

this complaint by the applicant, and consequently her complaint under

Article 14 (Art. 14) raised in conjunction, to be incompatible ratione

materiae with the provisions of the Convention. These complaints are

therefore inadmissible pursuant to Article 27 para. 2 (Art. 27-2) of

the Convention.

5.   The applicant also complains under Article 13 (Art. 13) that she

had no effective domestic remedies available to her in respect of the

above complaints. Article 13 (Art. 13) reads 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."

     In respect of the complaints made by the applicant under sections

2-4 above, the Commission recalls that Article 13 (Art. 13) does not

require a remedy under domestic law in respect of any alleged violation

of the Convention. It only applies if the individual can be said to

have an "arguable claim" of a violation of the Convention (Eur. Court

HR, Boyle and Rice v. the United Kingdom judgment of 27 April 1988,

Series A no. 131, p. 23, para. 52). The Commission finds that the

applicant cannot be said, in light of its findings above, to have an

"arguable claim" of a violation of her Convention rights.

     In respect of the matters raised under section 1, the Commission

recalls its finding that the applicant is in the process of exhausting

domestic remedies pursuant to Article 26 (Art. 26) of the Convention.

     It follows that the applicant's complaints under Article 13

(Art. 13) must be dismissed as 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                              Acting President

   to the First Chamber                      of the First Chamber