AS TO THE ADMISSIBILITY OF

                      Application No. 22173/93

                      by Egil BORSE

                      against Norway

      The European Commission of Human Rights (Second Chamber) sitting

in private on 17 May 1995, the following members being present:

           Mr.   H. DANELIUS, President

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 S. TRECHSEL

                 H.G. SCHERMERS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Ms.   M.-T. SCHOEPFER, 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 16 April 1992 by

Egil Borse against Norway and registered on 7 July 1993 under file

No. 22173/93;

      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 facts of the case, as submitted by the applicant, may be

summarised as follows.

      The applicant is a Norwegian citizen, born in 1948.  He is a

civil engineer and resides at Trondheim, Norway.

                                  I.

      In 1978 the applicant married a Canadian citizen and in November

1980 his wife gave birth to their son, C.  In 1985 the applicant and

his wife separated and a detailed agreement concerning custody and

access to C was made between the parents on 4 October 1985.

      It appears, however, that the agreement could not be honoured to

both parties' satisfaction for which reason the applicant instituted

proceedings, on 6 May 1986, in the Trondheim City Court (byrett) in

order to obtain sole custody of C.  Experts were appointed and their

report of 5 January 1987 concluded that both parents were capable of

taking proper care of C and that, therefore, joint custody would be

preferable.  On 12 January 1987 the parties reached an agreement in

court whereby the parents were given joint custody of C.  It was

furthermore agreed that C should live with the applicant and that the

mother should have access as set out in the agreement.

      However, the mother considered ultimately that the applicant did

not fulfil his part of the agreement for which reason she instituted

proceedings, on 22 October 1987, in the City Court against the

applicant in order to obtain sole custody of C.  The Court appointed

two experts who were asked to assess each parent's situation, having

regard in particular to the interests of C.  In their opinions of

21 March and 11 April 1988, respectively, one of the experts

recommended that the mother should be granted custody whereas the other

concluded that the parents were equally capable of taking care of C.

      By judgment of 26 April 1988 the City Court awarded custody of

C to the mother.  The applicant was granted access in accordance with

the applicable provisions of the Children's Act (Barneloven).

      The applicant appealed against the judgment to the Frostating

High Court (Lagmannsrett). While the appeal was pending the mother

requested the High Court, as an interim measure, to award her custody

until final judgment was pronounced.  Her request was based on the fact

that the applicant's employer had requested the applicant to take up

employment in Oslo and that therefore he might take C with him.  On

22 September 1988 the High Court decided in accordance with the

mother's request and C moved to his mother's residence on

29 September 1988.

      The case was examined in the High Court from 11 to

13 January 1989.  The applicant and the mother were heard, as well as

thirteen witnesses and two experts.  On the basis of an evaluation of

their statements as well as the documentary evidence submitted the High

Court pronounced judgment on 13 February 1989 in which the City Court

judgment was upheld.  The High Court stated inter alia as follows:

(translation)

      Like the City Court the High Court finds that the case

      concerns two parents who both are strong and capable

      persons and who both have a sincere wish to serve the

      child's interests. ... Like the City Court the High Court

      finds that the difficulties which are at the heart of the

      present case must be the parents' mutual lack of harmony in

      their relationship and the lack of communication which

      follows therefrom when it comes to matters concerning the

      child. ... Both parents have satisfactory living conditions

      as well as other material conditions which would secure the

      child a good upbringing. ...

      ...

      Despite the equality between (C's) parents as regards their

      capability as his custodians differences in personality and

      character speak in favour of giving the mother custody.  C

      is now in his ninth year.  Despite the fact that he is

      physically and mentally well developed according to his age

      he needs a certain firmness in his life and vis-à-vis his

      superiors.  The High Court finds no reason to doubt that

      (the applicant) as a father has a number of positive sides

      and features of great importance for the child's future

      development.  The Court finds, however, that many of the

      difficulties in the child's daily life and the lax attitude

      towards agreements reached are due to the fact that (the

      applicant) has not sufficiently understood the importance

      of honouring the agreements reached.  It appears that he

      has, as a father, on a number of occasions and based on

      insufficient grounds, let the child decide in situations

      where the issue was already regulated otherwise between the

      parents, with problematic effects a sa consequence.

      ...

      When reaching the conclusion that it is in the interest of

      (C) that the complicated and conflict-ridden situation of

      co-operation which exists between the parents is now sought

      solved by giving custody to the mother in that she alone is

      awarded parental rights and daily care over (C), the City

      Court and the High Court expect that she is aware of, and

      will respect, the duties which follow therefrom vis-à-vis

      (the applicant) and his interests.  The High Court finds no

      reason to blame unilaterally the father that the agreements

      reached were not always honoured as expected.  Also the

      mother's attitude and reactions in the particular

      situations on which emphasis has been placed have probably

      contributed to an aggravation of the situation.  However,

      based on the experts' evaluation the High Court considers

      that the mother ought to step in as the person responsible

      (for C) as the parents, in the previous arrangements in

      which the father was the central person, did not manage to

      make the arrangements work."

      As regards access the High Court found that the usual

arrangements pursuant to the provisions of the Children's Act could not

be implemented as it found it established that the applicant's

permanent residence was now Oslo.  In these circumstances a specific

access arrangement was set out in the judgment on which the parties

could rely in case access could not be agreed upon between them.

      The applicant subsequently applied to the Supreme Court

(Høyesterett) for leave to appeal.  On 5 October 1989, his request was

rejected by the Appeals Selection Committee of the Supreme Court

(Høyesteretts Kjæremålsutfalg).

      Less than four months later, on 19 January 1990, the applicant

instituted proceedings in the Trondheim City Court requesting that

custody of C be transferred to him or, in the alternative, that he be

granted access pursuant to the provisions of the Children's Act.  By

judgment of 27 August 1990 the City Court decided that custody of C

should remain with the mother.  Furthermore, the applicant was in the

circumstances refused access.  The applicant's appeal was rejected by

the Frostating High Court on 29 March 1991 and leave to appeal was

refused by the Appeals Seelection Committee on 31 Octobner 1991.

      Less than two months later, on 22 December 1991, the applicant

instituted new proceedings in the Trondheim City Court with a request

for custody or access.  By decision of 2 March 1992 the Court dismissed

the case as it concerned substantially the same issues as previously

dealt with and since it contained no relevant new information.  This

decisin was quashed by the High court on 29 September 1992 and the case

was referred back to the City Court for examination on its merits.  The

Appeals Selection Committee of the Supreme Court confirmed the High

Court's decision on 19 November 1992.

      While the case was pending in the City Court again, the applicant

requested the City Court judge to vacate his seat and to have another

judge appointed to deal with the case.  On 4 January 1993 the President

of the City Court rejected the applicant's requests.  The applicant's

appeals on these points were rejected by the High Court on

18 February 1993 and by the Appeals Selection Committee of the Supreme

Court on 27 April 1993.

      The applicant then requested the City Court to grant him,

provisionally, a right of access to C pending the outcome of the case.

This request was rejected by the Court on 15 June 1993 inter alia due

to the fact that an access arrangement on a voluntary basis actually

existed.  The applicant's appeals were subsequently rejected by the

High Court on 9 July 1993 and by the appeals Selection Committee of the

Supreme Court on 30 September 1993.

      On 14 October 1993 the City Court held a hearing on the merits

of the applicant's requests for a transfer of custody or, in the

alternative, access to C.  The applicant did not appear.  The Court

then dismissed the case after having established that the applicant had

been called to appear and that he had not submitted any valid

justification for his absence.  This decision was upheld by the High

Court on 29 December 1993.  On 3 March 1994 the Appeals Selection

Committee of the Supreme Court dismissed the applicant's further appeal

as it found that his appeal did not contain anything which the Supreme

Court could consider.

      Approximately three weeks later the applicant instituted new

proceedings in the Trondheim City Court which scheduled the main

hearing for 23 August 1994.  However, the applicant did not appear for

which reason the case was again dismissed as it was established that

he had submitted no valid justification for his absence.  This decision

was upheld by the high Court on 24 October 1994.

                                  II.

      It appears from the above that the applicant and his ex-wife

agreed, on 12 January 1987, to joint custody of C, that C should live

with the applicant and that the mother should have access in accordance

with the agreement.  The applicant submits that C's name was

accordingly entered in the applicant's passport.  In the autumn of 1988

the applicant obtained a new passport from the Chief of Police of Asker

and Bærum and C's name was again entered in the passport despite the

fact that the Trondheim City Court on 26 April 1988 had awarded custody

to the mother and despite the Frostating High Court's decision of

22 September 1988 to transfer, provisionally, custody of C to the

mother.

      Following the final judgment as regards custody and access and

as these issues nevertheless, as set out above, continued to affect the

daily life of C, his mother and the applicant, it appears that the

police, in 1990, searched the applicant's home in order to find and to

verify the contents of his passport as he apparently was no longer

entitled to have C's name inscribed in it.  On 5 April 1991 the police

searched the applicant's office in Trondheim, brought the applicant to

the police station and seized his passport.  The same day the applicant

went to the local hospital and obtained a medical statement as he found

the police had used excessive force against him.

      Subsequent to the seizure of his passport the Trondheim police

decided on 11 April 1991 to confiscate it as C's name was still

inscribed in it.  It was returned to him approximately nine months

later after C's name has been deleted.

      In the meantime, however, the applicant had complained about the

confiscation to the Ministry of Justice which, on 15 July 1991,

confirmed the decision taken by the Trondheim police.  This decision

was maintained by the Ministry on 8 October 1991, By letter of

2 December 1992 the Parliamentary Ombudsman informed the applicant that

he found no reason to citicise the decisions taken.

      Following the Ministry of Justice's above decision of

15 July 1991 it appears that the applicant instituted proceedings

against the Ministry in the Trondheim City Court maintaining that the

decision to confiscate his passport was illegal.  The outcome of these

proceedings is unknown.

COMPLAINTS

      The applicant complains that over the past ten years he has been

subjected to inhuman and degrading treatment by the Norwegian

authorities.  In particular he refers to the custody conflict between

him and his ex-wife and maintains that his right to respect for his

family life has been violated due to the fact that the mother was

awarded sole custody of C and he was refused access.

      The applicant also maintains that he has been, and still is,

harassed by the police.

      He invokes Articles 3, 5, 6, 8, and 10 of the Convention.

THE LAW

1.    The applicant complains of the fact that custody of his son, C,

was awarded to the mother and that he has been refused access to C by

the courts.

      The Commission has examined this aspect of the applicant's case

under Article (Art. 8) of the Convention which reads:

      "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 law and is necessary in a democratic

      society in the interests of national security, public

      safety or the economic well-being of the country, for the

      prevention of disorder or crime, for the protection of

      health or morals, or for the protection of the rights and

      freedoms of others."

      The Commission recalls that proceedings concerning custody and

access have been pending before the Norwegian courts for years.

However, following the decision of the Appeals Selection Committee of

the Supreme Court of 5 October 1989 the courts have dismissed the

applicant's subsequent cases as he failed to appear.  Nevertheless, the

Commission does not find it necessary to determine whether the

applicant in these circumstances has complied with the requirements of

Article 26 (Art. 26) of the  convention because this part of the

application is in any event inadmissible for the following reasons.

      In so far as the applicant complains of the fact that custody was

awarded to the mother the Commission recalls that the national courts

are often faced with the problem of making a choice between the

parents.  Their decisions in this respect will not as such disclose any

lack of respect for the family life of the parent who is not granted

custody.  In the circumstances of the present case the Commission has

not found any elements which could lead to another conclusion.

      As regards the question of access the Commission recalls that in

accordance with its established case-law the right to respect for

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

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

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

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

right otherwise than in accordance with the conditions set out in

Article 8 para. 2 (Art. 8-2) (cf. Hendriks v. the Netherlands, Comm.

Report 8.3.82, para. 94, D.R. 29, p. 14).

      The Commission furthermore considers that the natural link

between a parent and a child is of fundamental importance and that,

where the actual family life in the sense of living together has come

to an end, continued contact between them is desirable and should in

principle remain possible.  Respect for family life within the meaning

of Article 8 (Art. 8) thus implies that this contact should not be

denied unless there are strong reasons which justify such an

interference.

      The Commission observes that the decisions taken by the Norwegian

courts in respect of access were based on the provisions of the

Children's Act.  The interference was thus inaccordance with the law

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

      As regards the legitimate aim the Commission has constantly held

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

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

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

predominate.  The interference therefore has a legitimate aim in so far

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

No. 7911/77, Dec. 12.12.77, D.R. 12, p. 192).  There can be no doubt

that the interference in the present case with the applicant's right

under Article 8 (Art. 8) had this purpose.  What remains to be

considered is therefore whether the interference was necesssary in a

democratic society for the protection of the child's interest.

      In examining whether the interference was necessary the

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

the competent domestic courts.  Its function is to assess from the

point of view of Article 8 (Art. 8) the decision which the courts took

in the exercise of their discretionary power.

      It is an important function of the law in a democratic society

to provide safeguards in order to protect children from harm and mental

suffering resulting, for instance, from the break-up of the

relationship of their parents.  In such cases this purpose may be

achieved by keeping the child away from a situation which could be

detrimental to his or her mental development owing to the existence of

a loyalty conflict vis-à-vis one or both of the parents and the

ivevitable parental pressure put on him or her causing feelings of

insecurity and distress (cf. Hendriks v. the Netherlands, loc. cit.,

para. 120).

      In the present case the Commission finds that the competent

national courts carefully considered the questions of custody and

access.  They came to the conclusion, however, that, given the

difficulties between the parents, it was impoartant for the child's

well-being to be kept out of these difficulties.  In these

circumstances the Commission is satisfied that the interference

complained of was required by the interests of the child and that the

courts, when so deciding, did not go beyond their discretionary power.

      The Commission has not overlooked the applicant's situation.

However, where, as in the present case, there is a serious conflict

between the interests of the child and one of its parents, the interest

of the child must under Article 8 (Art. 8) prevail.  Furthermore, the

applicant submits that he is in fact seeing his son on a voluntary

basis.

      The Commission concludes therefore that the interference with the

applicant's right to respect for his family life, being proportionate

to the legitimate aim pursued, was justified under Article 8 para. 2

(Art. 8-2) as being necessary in a democratic society for the

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

child concerned.

      It follows that this part of the application is also manifestly

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

Convention.

2.    The Commission has examined the remainder of the applicant's

complaints as submitted by him under Articles 3, 5, 6 and 10

(Art. 3, 5, 6, 10) of the Convention.  However, it finds that they do

not disclose any appearance of a violation of the rights and freedoms

set out in the Convention.

      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.

      For these reasons, the Commission, unanimously

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber        President of the Second Chamber

     (M.-T. SCHOEPFER)                        (H. DANELIUS)