AS TO THE ADMISSIBILITY OF

                      Application No. 22597/93

                      by Thorbergur THORBERGSSON

                      against Iceland

      The European Commission of Human Rights (Second Chamber) sitting in

private on 11 January 1994, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Mr.   K. ROGGE, 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 1993 by

Thorbergur THORBERGSSON against Iceland and registered on

8 September 1993 under file No. 22597/93;

      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 an Icelandic citizen, born in 1930. He resides in

Reykjavík. Before the Commission he is represented by Mr. Eirikur

Tomasson, an attorney at law practising in Reykjavík.

                                   I.

      In 1980, the applicant took up cohabitation with B. Shortly

afterwards they moved to Norway where their daughter A was born on

10 August 1982. B had two older children of a previous relationship.

      In 1983, the social welfare authorities in Norway became concerned

with the situation of the children due to B's alcoholism and adverse

domestic conditions. At that time the applicant was working on Norwegian

offshore oil rigs and was therefore often away from home due to his work.

In August 1983 the applicant sent his family back to Iceland, but he

remained in Norway. Soon thereafter, the Reykjavík Municipal Department

of Social Affairs concerned themselves with the children, again due to

the mother's alcoholism.

      Shortly afterwards the applicant's sister contacted C and D, and

asked them if they were prepared to accept her niece, A, in fosterage.

C and D agreed to consider the matter and discussed it with the staff of

the Reykjavík Child Welfare Committee. In December of the same year a

meeting was held with the applicant, his sister, C and D and others,

where the fosterage of A was discussed.

      On 16 December 1983 the applicant signed the following agreement:

(translation)

      "I, the undersigned, ..., do hereby grant my consent for the

      Reykjavík Child welfare Committee to place my child, A, born

      10 August 1982, and my stepchildren, E, born 5 March 1972 and

      F, born 14 April 1980, in fosterage for a trial period of

      three months with a view to fosterage until the age of 16. My

      consent is granted on the condition that my rights of access

      are guaranteed under further agreement with the staff of the

      Child Welfare Committee and the prospective foster parents."

      On 6 March 1984 the Reykjavík Child Welfare Committee decided to

entrust C and D with the fosterage of A on a trial basis and on 25 June

the same year, the Committee decided to entrust them with the fosterage

of A until she would reach the age of sixteen.

      In February 1985, the applicant moved back to Iceland and requested

access to his daughter, A. Disagreement arose between him and the foster

parents C and D regarding the applicant's access to A. The foster parents

doubted the purpose of the applicant's access to A while the applicant

insisted on access.

      On 3 March 1985 an agreement was reached between the applicant and

the foster parents with the mediation of the staff of the Reykjavík Child

Welfare Committee regarding the arrangement of the access. According to

this agreement the applicant was to have access to his daughter for one

afternoon every second month in the home of C and D in the presence of

a member of the staff of the Committee. The agreement should be valid for

one year on a trial basis. Access proceeded in accordance with this

agreement in September and November 1985 and February 1986. However, no

agreement was reached on the continuation of the access arrangement.

There was great disparity between the views of the applicant and C and

D concerning access.

      In March 1986, the applicant and A's mother, B, formally terminated

their cohabitation, which had in fact already come to an end in the

autumn of 1983. On 3 April 1986 the Chief County Magistrate of Reykjavík

confirmed an agreement between the applicant and B, according to which

the applicant should have custody of A.

                                   II.

      In April 1986 the applicant requested that the fosterage of A be

terminated. Accordingly, the Child Welfare Committee of Reykjavík

commenced an investigation in the matter, firstly as to whether the

fosterage should be terminated and, in the alternative, as to how the

access of the applicant to A should be arranged. In its decision of

12 May 1986 the Committee held inter alia:

(translation)

      "From the case documents it is evident to the Child Welfare

      Committee that the neglect of A's parents in respect of her

      upbringing and conditions was such that it was necessary and

      entirely justifiable to entrust others with the child's care. The

      father agreed at the time that the girl should be placed in

      fosterage for a trial period of three months with a view to future

      fosterage. He put great emphasis on her placement in her present

      foster home. The documents reveal that the child was in a poor state

      when she came to her foster parents and also that she made excellent

      progress there. It appears evident that her upbringing and

      conditions are well taken care of by her foster parents and that a

      change of her conditions would not be in her interests. For this

      reason the Child Welfare Committee cannot agree to the father's

      demand that the fosterage should be terminated.

      In the opinion of the Committee it is also clear that the foster

      parents have not made a satisfactory effort to encourage a positive

      relationship between the child and her father. It is the opinion of

      the Child Welfare Committee that the child has the right of access

      to her father and natural family. It is the duty and responsibility

      of the foster parents to respect that right and actively contribute

      to as positive a relationship between them as circumstances will

      allow. There is nothing in the case documents to justify a decision

      to deprive [the applicant] of his right of access to the child."

      On the basis of the Act on Children's Welfare No. 53/1966, sections

1 and 13, the Child Welfare Committee accordingly passed the following

decision:

(translation)

      "The girl, [A], shall remain with her foster parents and the

      decision of the Committee of 25 June 1984 shall stand. It is

      furthermore the decision of the Committee that access between child

      and father shall be as follows: 5 whole days a year, 8-9 hours each

      time at regular intervals, of which one day shall be at Christmas.

      Access shall take place alternately in the home of the foster

      parents and the home of the natural father."

      The applicant appealed against this decision to the Child Welfare

Council which confirmed it in a decision of 24 July 1986. The applicant

did not bring the case before the courts.

      In the autumn of 1986 the foster parents moved to Norway for a

year's stay. This intention had been the cause of disagreement regarding

the applicant's right of access to his daughter. Nevertheless, the

applicant met with his daughter on 17 and 18 October 1986 in Norway, on

30 December 1986 in Reykjavík and on 7 March and 24 May 1987 in Norway.

      The foster parents returned to Iceland in August 1987. The applicant

then immediately requested access to his daughter. The foster parents

considered it contrary to A's interests for the access to take place in

the home of the applicant but permitted that he visited her five times

a year. The applicant resided in Reykjavík but the foster parents resided

in Blonduos, which is in the north of Iceland. The applicant visited A

on 13 August and 24 October 1987 in Blonduos.

      The disagreement concerning the arrangement of the applicant's

access to A continued. On 14 December 1987 the Reykjavík Child Welfare

Committee decided that access should take place in the home of the foster

parents. This arrangement should apply for the following two years and

the matter should be reviewed in the autumn of 1989. Access took place

in accordance with this arrangement on 29 December 1987 and

26 March 1988. The applicant, however, was not satisfied with the

arrangement.

                                  III.

      In March 1988, the applicant requested the intervention of the Child

Welfare Council in the disagreement between him and the foster parents

concerning access to A. The Council took up the matter and in October of

the same year the applicant wrote a letter to the Council where he

requested custody of A.

       On 10 November 1988 the Child Welfare Council decided as follows:

(translation)

      "The child shall have access to her father four times each year,

      four hours each time. Access shall take place alternately in the

      home of the foster parents and in the home of the father. All access

      shall take place under the supervision of the Reykjavík Child

      Welfare Committee. The first meeting under this decision shall take

      place in the home of the foster parents."

      The applicant was very dissatisfied with this decision. In

particular, he objected to the fact that according to the decision of

10 November 1988, a social worker should be present when he met A. He

refused to meet A at Easter 1989 for this reason.

      The applicant did not challenge the Child Welfare Council's decision

before the courts. However, he complained to the Parliamentary Ombudsman

about the decisions and interventions of the child welfare authorities

in the case. Having investigated the matter the Ombudsman concluded on

3 May 1989 as follows:

(translation)

      "Section VIII of the Children's Act No. 9/1981 provides for mutual

      access rights between parents and children. This right of parents

      and children is specifically protected in Article 8 of the European

      Convention for the Protection of Human Rights and Fundamental

      Freedoms. Restricting this right is unavoidable if a child is placed

      in fosterage, and further restrictions may be unavoidable if access

      to the parent poses a danger to the child. In the present case,

      however, nothing has emerged which could justify the severe

      restriction of access rights described in the minute entry of the

      Icelandic Child Welfare Council of 10 November 1988. The opinion of

      the Council that [A] has "no need to see her father more frequently

      than four times a year" is improper and cannot justify this

      arrangement of access rights.

      In accordance with the above it is my recommendation that the

      Icelandic Welfare Council review its decision on the access rights

      of [the applicant] and [A]."

      The Child Welfare Council refused to comply with the Ombudsman's

request to pass a new decision on the applicant's right of access to his

daughter.

      A visited the applicant on 17 June 1989 and he visited her in the

foster home in October of the same year. At Christmas the applicant

refused to see A as he did not wish a social worker to be present. A had

then come to Reykjavík expressly for the purpose of meeting him. On

14 July 1990 the applicant visited A, but from that time onwards it

appears from the documents submitted by the applicant that no further

meetings took place as the applicant did not accept that a member of the

Child Welfare Committee staff should be present.

      On 21 December 1990 the applicant requested the Reykjavík Child

Welfare Committee to recognise his right of access to his daughter and

that the access be so arranged in the future that their relations could

be as normal as possible. The applicant repeated his request on

1 February 1991 and set the express condition that A should be allowed

to associate with him in his home without supervision on the part of the

child welfare authorities. At a meeting of the Child Welfare Committee

on 27 February 1991 an entry was registered in the minutes with the

following conclusion:

(translation)

      "The Committee has used every possible recourse to effect a

      reconciliation in the matter and to establish as normal access as

      possible between father and daughter. The Child Welfare Committee

      feels it cannot bring about access by coercive means, and it is

      probable that this could increase further the existing tension and

      in the end the victim could be the child itself. For this reason the

      Child Welfare Committee is unable to undertake to bring about

      further access between father and daughter at this time."

      The applicant appealed against this decision to the Child Welfare

Council, which passed a decision on 21 August 1991, worded as follows:

(translation)

      "It is the decision of the Council that [A], born 10 August 1982,

      shall not associate with her natural father, ..., at present. It is

      furthermore decided that [A] shall remain in fosterage with [C and

      D]."

      When this decision of the Child Welfare Council was received the

applicant instituted proceedings against the Child Welfare Council and

C and D in the District Court of Reykjavík, where he requested that the

decision of the Council be overturned, that his right of access to A be

recognised and a decision be passed in determination of his access

rights. In its judgment, dated 12 June 1992, the District Court stated

inter alia as follows:

(translation)

      "In this case the parties have repeatedly been subjected to

      conditions regarding the arrangements of the access of [the

      applicant] to the girl [A]. It is a fact, however, that [the

      applicant] has been unwilling to accept the conditions to which he

      has been subjected. He has from the beginning instigated disputes

      regarding the access despite the fact that he has been granted

      access to the child beyond what is normal. Only two months after

      entering into an agreement with the defendants in March 1985 he

      consulted a lawyer regarding the matter. Despite the fact that the

      agreement was honoured to the letter by the defendants, he wanted

      further access and would not submit to the supervision of the staff

      of the Reykjavík Child Welfare Committee. He repeatedly refused [to

      meet A] due to the condition of the presence of the staff members.

      [The applicant] has made various allegations regarding the

      defendants, he harassed them and their relatives in various ways.

      He also threatened the staff of the Child Welfare Committee and the

      Child Welfare Council.

      [The applicant] has shown no understanding of the circumstances of

      the girl. He has very unrealistic ideas about children and their

      upbringing. He brought the child presents immoderately. The presents

      were not always appropriate to the child's abilities and needs and

      he did not consult with the foster parents regarding presents. On

      the contrary, he disregarded the instructions of the staff of the

      Child Welfare Committee and even gave the child things which he knew

      the child already possessed. With his promises and presents he

      raised unrealistic expectations in the child.

      The attitude of [A] to [the applicant] has varied in the course of

      time. The reports of the staff and experts in this matter indicate

      that she regarded the defendants in this case [C and D] as her

      parents and felt that [the applicant] was a disturbance in her life

      and she was inclined to leave him out of her existence. The girl

      repeatedly refused to go to [the applicant] and the defendants had

      to persuade her and she also said to the staff that she did not wish

      to visit [the applicant] nor have him visit her. The opposition of

      the child to relations with [the applicant] has increased in the

      past months. From the above it is clear that [the applicant] had

      always demanded and been granted access to the child on his own

      terms rather than hers.

      It must be regarded as a principle under Icelandic law that parents

      and children who do not reside together have rights of access to one

      another. As regards children and parents who do not have custody

      this right is regulated by law in section 40, cf. section 41 of the

      Children's Act No. 9/1991 and section 47 of Act No. 60/1972 on the

      Establishment and Termination of Marital Relations. In Icelandic law

      there are no specific provisions on the access of natural parents

      and their fostered children. By the nature of the case, however, the

      above principle must also apply to parents and their children under

      such circumstances...

      According to expert testimony, the child [A] was in a very poor

      state psychologically and physically when she was removed from the

      home. The mother was severely alcoholic but it must be regarded as

      clear that the father could not manage his role as a parent. There

      is thus no doubt that the intervention of the child welfare

      authorities, the removal of the child from her home and her

      placement in fosterage, are measures taken from the point of view

      of child welfare, also with respect to the father, cf. Act No.

      53/1966 on the Protection of Children and Adolescents... The natural

      parents both agreed to the fosterage without deprivation of custody

      taking place. Matters of fosterage are at the discretion of child

      welfare authorities and fall within the scope of Act No. 53/1966.

      The child welfare authorities are empowered to decide that a child

      remain in fosterage even if a natural parent who has not been

      deprived of custody requests that the child be returned to him/her

      under section 36, subsection 3 and sections 32, 26 and 13 of the

      same Act...

      The access of parents and children is a principal right and cannot

      be restricted unless there are important and legitimate reasons for

      doing so. It is another principle of Icelandic law that in the

      consideration of cases involving children the welfare of the child

      shall be the guiding principle, i.e. what is best for the child.

      This principle is contained  in section VIII of the Children's Act

      No. 9/1981 and section 16, subsection 3 of Act No. 53/1966, and

      arises out of the nature of the case... It is the opinion of the

      Court that in the interests of a child there may be legitimate

      reason to prohibit access of a parent to a child if the access

      causes anxiety and tension, directly or indirectly, i.e. due to the

      disruptive effect of the access on the environment of the child.

      Thus the Child Welfare Council bases its decision on legitimate

      grounds...

      On the part of [the applicant] it is contended that in its

      assessment the Child Welfare Council gave in to the opposition of

      the foster parents and gave up trying to establish equitable access

      rights. The documents of the case show beyond any doubt that from

      the beginning the relations between the natural father and the

      foster parents have been poor...It is unavoidable that a child will

      become aware of tension between those who are closest to the child

      and that this will affect the child. It is proper, in the view of

      the Court, to take account first and foremost of the feelings of the

      child in this regard. The documents of the case also show that

      numerous members of the staff of the child welfare authorities have

      made an effort to reconcile the conflicting views of the parties and

      offer them guidance so that access could be established...

      It is in the important interests of a child to live a normal family

      life and it is the child's right that this life be protected,

      whether in the care of natural parents or foster parents. The child

      has been with her foster parents since the age of two and is now

      reaching the age of ten. All the documents of the case indicate that

      she has made progress, that she has adapted well and is content with

      her foster family. On the other hand, she has had social

      difficulties in school and the dispute of her adult relatives have

      caused tension which has had an adverse effect on her. Everyone who

      has worked on the case and testified before the Court agrees that

      it would be best if peace could be established in the child's

      surroundings so that she could have access to her natural father as

      well. From the testimony of the parties [the applicant, C and D] it

      is clear that they have not attempted to resolve their strained

      relations with the child's interests in mind. There are no time-

      limits on the decisions of the Child Welfare Council and therefore

      the case can be reopened when there is reason to do so...

      On the grounds indicated above the Court rejects [the applicant's]

      claim that the decision of the Child Welfare Council of

      21 August 1991 be overturned ..."

      The applicant appealed against this judgment to the Supreme Court

which upheld it by judgment of 11 February 1993. The conclusion was inter

alia based on the following grounds:

(translation)

      "The parent's right of access to his/her child following divorce was

      introduced into law with the passing of Act No. 60/1972 on the

      Establishment and Termination of Marital Relations. In the

      Children's Act No. 9/1981 this right was extended to legitimate and

      illegitimate children alike and phrased so in section 40, subsection

      1:

           'If only one parent has custody of a child, the

           child has the right of access to the other parent,

           who is then obliged to associate with the child and

           to observe further conditions as may be pertinent.

           If the Ministry of Justice considers that special

           circumstances make the access of a child to its

           parent contrary to its interests, the Ministry may

           suspend the right of access.'

      Under law this right has thus been made subject to the condition

      that there are no objections to the parent's right of access to the

      child due to special circumstances. This is still the case, cf.

      section 37, subsection 3, of the present Children's Act No. 20/1992.

      The placement of a child in fosterage is a child welfare measure.

      The Act on Children's Welfare No. 53/1966, which was valid until 1

      January 1993, did not provide for the access of children in

      fosterage to their natural parents. The facts of this case reveal

      that in practice the procedure has been established among child

      welfare committees that agreements are made so that a parent may

      associate with his child one to four times a year. In Act No.

      58/1992 on the Welfare of Children and Adolescents, which took

      effect in January 1993, there are provisions in section 33 on the

      access of children in fosterage to their natural parents. Subsection

      3 of the said provision states that a child welfare committee may

      rule that the parents' rights of access shall be suspended if

      special circumstances make such access contrary to the needs and

      interests of the child in the opinion of the committee.

      Provisions on the permanent fosterage of children are now to be

      found in Act No. 58/1992. In subsection 1 of section 29 of the said

      Act the fosterage of children is defined, and subsection 2 states

      that fosterage can be of two kinds, permanent or temporary.

      Permanent fosterage means that it continues until custodial duties

      terminate under law.

      When a child is placed in permanent fosterage until the age of 16

      it is generally not intended that the foster child return to its

      parents. The purpose of such measures is to ensure the child a good

      upbringing and care until majority age.

      There is no disagreement in this case that [the applicant] has a

      right to access to his child unless there are important reasons to

      the contrary...

      It is clear that the access of [the applicant] to the child has

      created very difficult conditions which it has turned out to be

      impossible to improve despite repeated attempts on the part of the

      child welfare authorities. It has also appeared that the child

      showed no express desire to associate with her father in the way he

      demanded. This led to great tension and difficulty in the child's

      domestic life in the home of its foster parents. The result was that

      a choice had to be made as to which should count for more, the

      interests of the child or those of the father.

      On the basis of an examination of these elements and having regard

      to the purpose of placing a child in permanent fosterage, the

      conclusion must be that the arguments supporting the ruling of the

      defendant, the Child Welfare Council, which was carefully prepared

      and based on expert testimony, were so weighty that this ruling

      should remain unaltered. The judgment appealed against is thus

      upheld."

COMPLAINTS

      The applicant complains that the Icelandic child welfare authorities

have acted contrary to Article 8 of the Convention by failing in their

duty to grant him a right to normal access to his daughter:

      -    firstly by limiting his access to his daughter in the ruling

           of the Icelandic Child Welfare Council of 10 November 1988,

           where access was limited to four times per year, four hours

           each time; and

      -    secondly by subsequently terminating entirely his access to

           his daughter for an unspecified period of time in the decision

           of the Child Welfare Council of 21 August 1991.

THE LAW

      The applicant complains that the child welfare authorities and the

Icelandic courts have limited and then terminated entirely his access to

his daughter, A, who stays with her foster parents. He invokes Article

8 (Art. 8) of the Convention which 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 Commission notes that the events and decisions complained of in

the present case have taken place over a period of ten years. Therefore

the issue can be raised if the applicant has exhausted all domestic

remedies according to Article 26 (Art. 26) of the Commission, as regards

the different decisions complained of.

      The Icelandic child welfare authorities first decided in the case

on 12 May 1986 and 24 July 1986 regarding the arrangement of the

applicant's access to A. The applicant did not bring the case before the

courts at that time. Secondly the child welfare authorities decided to

restrict further the applicant's access to A on 10 November 1988. The

applicant did not challenge this decision either before the courts.

Thirdly, the Icelandic child welfare authorities terminated the

applicant's access to A by a decision of 27 February 1991. The decision

was confirmed by the Child Welfare Council on 21 August 1991. The

applicant decided to challenge this before the courts. A final judgment

in the Supreme Court of Iceland was pronounced on 11 February 1993 and

thus all domestic remedies were exhausted as regards the decision on

termination of access.

      In the present case the Commission does not consider it necessary

to decide specifically on the admissibility of the complaints concerning

the former decisions of the child welfare authorities according to

Article 26 (Art. 26) of the Convention. They must be viewed as a

background which lead to the final decision, complained of in the case,

namely the termination of the applicant's access to his daughter.

      It is established case-law of the Commission that the right to

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

Convention includes the right of a parent who does not have custody of

a child, to have access to or contact with the child. The mutual

enjoyment by parent and child of each other's company constitutes a

fundamental element of family life (e.g. Eur. Court H.R., Rieme judgment

of 22 April 1992, Series A no. 226-B, p. 68, para. 54). Furthermore the

Commission considers that the natural link between a parent and a child

is of fundamental importance and that, where actual family life in the

sense of living together has come to an end, continued contact 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 (e.g. Jonsson v. Sweden, No. 12495/86, Dec.

7.12.87, D.R. 54 p. 187).

      In the present case the Commission recalls that the applicant is the

father of an eleven year old girl, A. The applicant lived with A and her

mother, B, in Norway until B moved with A to Iceland in 1983. The

applicant remained in Norway until he moved to Iceland in the beginning

of 1985. Soon after B and A came to Iceland it appeared that B was not

capable of taking care of A. In March 1984, when A was one and a half

years old, she was placed in fosterage with C and D with the applicant's

consent, but on condition that his right of access to A would be

guaranteed.

      First the Commission must examine whether the decision to terminate

access was an interference with the right to respect for family life

which is guaranteed in paragraph 1 of Article 8 (Art. 8-1) of the

Convention. Second, if there was an interference with family life, it

must examine whether such interference can be justified under paragraph

2 of Article 8 (Art. 8-2).

      The Commission finds that the relationship between the applicant and

A in the circumstances described above falls within the scope of the

concept of actual "family life" which was established between them at the

time of A's birth when her parents were living together. Furthermore, the

Commission is of the opinion that the decision to refuse the applicant

access to his daughter was an interference with the applicant's right to

family life, since contact with his daughter constitutes a fundamental

element of that right.

a)    In accordance with the law

      When considering whether this interference can be justified under

paragraph 2 of Article 8 (Art. 8-2) the Commission will first examine

whether it was in accordance with the law. The lawfulness and the basis

of the decisions of the Icelandic child welfare authorities and

subsequently the Icelandic court decisions will be examined for that

purpose.

      The Commission observes that the decisions were originally based on

provisions in the Children's Act No. 9/1981, section 40, subsection 1,

which stated that if special circumstances made the access of a child to

its parents contrary to its interests, the Ministry of Justice could

suspend this right. In the new Act No. 58/1992 on the Welfare of Children

and Adolescents, which took effect in January 1993, section 33,

subsection 3 provides that a child welfare committee may rule that the

parents' right of access shall be suspended if special circumstances make

such access contrary to the needs and interests of the child in the

opinion of the committee. In these circumstances the Commission finds,

and this is not disputed by the applicant, that the interference was in

accordance with the law within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

b)    Legitimate aim

      The Commission notes that the decision to terminate access was taken

in the interests of A or, in other words, "for the protection of the

rights and freedoms of others" within the meaning of paragraph 2 of

Article 8 (Art. 8-2).

c)    Necessary in a democratic society

      As regards the question whether the interference was "necessary in

a democratic society", the Commission recalls that the notion of

necessity implies that the interference corresponds to a pressing social

need and, in particular, that it is proportionate to the legitimate aim

pursued. However, in examining whether the interference was necessary in

the present case 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 or foster parents and the inevitable pressure

put on him or her causing feelings of insecurity and distress (cf.

Hendriks v. the Netherlands, Comm. Report 8.3.92, para. 120, D.R. 29 p.

5)

      As regards the present case the Commission recalls that the

applicant's access to A, after he returned to Iceland in 1985 until

access was terminated in August 1991, did not lead to a normal

relationship between them. On the contrary, it was marked by the

continuing tension between the applicant and the foster parents. The

authorities, and subsequently the courts, found it established that A had

adapted well and was content with her foster family. The conflict between

A's foster parents and the applicant had on the other hand led to such

difficulties and disturbances in her life that she showed no express

desire to associate with her father.

      The Commission finds that the competent national courts carefully

considered the applicant's request for access to his daughter. They came

to the conclusion, however, that, given the difficulties, it was

important 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, namely the refusal of the applicant's request

for an access arrangement, could reasonably be considered to be 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. The

absence of one's child may cause considerable suffering to a parent.

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

can only be resolved to the disadvantage of one of them, it is legitimate

under Article 8 (Art. 8) to let the interest of the child prevail.

      The Commission concludes, therefore, that the interference with the

applicant's right to respect for his family life could reasonably be

considered to be 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 the application is 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

        (K. ROGGE)                           (S. TRECHSEL)