Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29779/96

by Peter SMALLWOOD

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 July 1995 by

Peter SMALLWOOD against the United Kingdom and registered on

10 January 1996 under file No. 29779/96;

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 a British citizen born in 1956 and resident in

Liverpool, England. The facts, as they have been submitted by the

applicant, may be summarised as follows.

The applicant is the natural father of two boys born out of

wedlock, J born in October 1986 and A born in May 1989. He had a

relationship with the mother of the children over a period of three

years, cohabiting between October 1986 and May 1989.

Following the breakup of this relationship (shortly before the

birth of A) the boys lived with their mother and for about two and a

half years between November 1989 and April 1992 the applicant enjoyed

generally satisfactory access to the children pursuant to various court

orders. A Court Order (by consent) of 27 April 1992 gave the applicant

parental responsibility pursuant to section 4(1) of the Children Act

1989 and fortnightly contact.

After a series of disputes over access and one particular

incident of violence between the applicant and the mother's boyfriend

which was witnessed by the children in June 1992, the mother refused

to allow contact to continue. Unable to accept this, the applicant

attended week by week for the contact with his sons which was not given

and on two occasions the police were called to deal with disturbances.

On 26 March 1993 following five court welfare reports and a

hearing by the County Court at which the applicant was represented by

counsel, the contact order made on 27 April 1992 was rescinded and a

general prohibition was made against the applicant prohibiting him from

using violence towards or harassing the children or their mother. In

particular the County Court noted the mother's genuine belief that

contact between her children and their father was harmful to them and

furthermore referred to the applicant as a man totally obsessed with

his rights and the duties of other people towards him. It also noted

that the eldest boy held the firm view that he does not want to see his

father and notwithstanding his young age his brother was beginning to

fear his father. On 1 December 1993 the appeal brought in person by

the applicant to the Court of Appeal was dismissed and leave to the

House of Lords was refused. On 16 December 1993, the County Court

ordered a sixth court welfare report on the specific question of

contact before refusing a further requested contact order.

A further application for a contact order, made by the applicant

in person, was refused by the County Court on 13 July 1994. In

reaching this conclusion, the Court referred to the bitterness which

existed between the parties and also referred to the applicant as "a

man with an obsessive outlook who had lost any sense of proportion,

balance and judgment". The Court also rescinded the order of parental

responsibility made on 27 April 1992 agreeing with the mother that his

use of parental responsibility was not for well intentioned reasons,

but rather to oppose any decision by the mother.

On the same day, the County Court made an order prohibiting the

applicant from visiting the children's school on the basis that the

father's approach to the school was really a "ruse to see the children

and was not sincerely intentioned". It accepted the evidence of the

mother that if the children saw the applicant at school they would

become hysterical and that if he visited the school in their absence

it would nonetheless come to their attention, causing them to be upset

and to lose confidence in the school and in their mother. In addition,

the Court made an order under section 91(14) of the Children Act 1989

that the father should make no application to the court under the

Children Act 1989 in relation to contact or parental responsibility

during the next three years without leave of the court.

Following a hearing at which the applicant appeared personally,

the Court of Appeal dismissed the applicant's appeal on 1 May 1995

finding that there was at least a real danger that the manner in which

the order of parental responsibility was being used at the time was

such that it was right, although with hesitation, to rescind it. In

relation to the order made by the lower court prohibiting the applicant

from making any application for the next three years without leave, the

Court of Appeal found that it was premature and set it aside. However,

it did warn the applicant that if he made another request for contact

which was unsuccessful then such an order could become justified. It

also commented that contact with his children might be open to

discussion at a less immediate future date should such an initiative

be taken by the children themselves.

Legal aid had been refused to the applicant for the proceedings

in the County Court and his appeal to the Court of Appeal on the basis

that his appeal was not likely to succeed.

COMPLAINTS

1. The applicant invokes Article 8 and complains that the rescission

of the order of parental responsibility made in his favour amounts to

an interference with his right to respect for family life. He also

claims that this constitutes a breach of his children's rights under

Article 8. He also complains that the order prohibiting him from

visiting his children's school together with his lack of parental

responsibility amount to a breach of Article 8.

2. The applicant also complains that he is discriminated against as

a natural father because parental responsibility can only be rescinded

under section 4 of the Children Act in the case of a natural father.

The applicant claims that compared with married fathers and unmarried

mothers he has been the victim of a violation of Article 8 together

with Article 14.

3. The applicant invokes Article 6(1) in relation to the complaint

that without parental responsibility he would have no standing in any

future adoption proceedings.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention of the decision to rescind the order of parental

responsibility and to issue a prohibited steps order preventing him

from going to his children's school. The applicant also complains under

Article 14 together with Article 8 (Art. 14+8) that the Children Act

1989 discriminates against natural fathers of children born out of

wedlock in relation to the rescission of parental responsibility.

Article 8 (Art. 8), so far as relevant, provides as follows:

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

family life, ...

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."

Article 14 (Art. 14) provides:

"The enjoyment of the rights and freedoms set forth in

[the] 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, birth or other

status."

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of these complaints and that it is

therefore necessary in accordance with Rule 48 para. 2 (b) of the Rules

of Procedure to give notice of this part of the application to the

respondent Government.

2. The applicant complains that without parental responsibility he

would have no standing in any adoption proceedings which may take place

with respect to his two children born out of wedlock. He invokes

Article 6 para. 1 (Art. 6-1) which guarantees access to a court, inter

alia, in the determination of a civil right.

The Commission recalls that, according to the constant case-law

of the Convention organs, the Convention does not provide for an action

popularis or permit individuals to complain about a law in abstracto.

An applicant must be able to demonstrate that the measures, about which

the applicant complains, have been applied to the applicant's detriment

or that the applicant is personally and directly affected by those

measures (cf., for example, Eur. Court HR, Klass v. Germany judgment

of 6 September 1978, Series A no. 28, p. 18, paras. 33-34 and Marckx

v. Belgium judgment of 13 June 1979, Series A no. 31, p. 13, para. 27).

In the present case the Commission notes that no adoption

proceedings have been introduced thus the question of the applicant's

standing in those proceedings does not arise at this time. In these

circumstances the Commission considers that the complaint of the

applicant in respect of his lack of standing in adoption proceedings

may be premature. To the extent however that it might be said that the

applicant's existing civil rights were determined in the proceedings

before the County Court and Court of Appeal, the Commission finds that

the decisions of these courts took place after hearings which complied,

procedurally and substantively with the requirements of Article 6

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

Accordingly, the Commission finds that this complaint must be

declared inadmissible as manifestly ill-founded pursuant to Article 27

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

For these reasons, the Commission

DECIDES TO ADJOURN the examination of the applicant's complaints

that there has been an interference with his right to respect for

family life and that he has been subject to discrimination as a

natural father;

unanimously

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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SMALLWOOD v. THE UNITED KINGDOM

SMALLWOOD v. THE UNITED KINGDOM

LEXI