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AS TO THE ADMISSIBILITY OF

Application No. 16580/90

by Terence BOYLE

against the United Kingdom

The European Commission of Human Rights sitting in private on

15 May 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 October 1989 by

Teence Boyle against the United Kingdom and registered on 14 May 1990

under file No. 16580/90;

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 1938 and resident

in Blackburn. The facts as submitted by the parties may be summarised

as follows.

The applicant has a sister M. who gave birth to a son C. on 5

April 1980. In the first year of his life. C. often stayed at weekends

in the applicant's house. In his affidavit of 25 April 1991 in the

freeing for adoption proceedings the applicant stated that between

December 1981 and August 1986 he saw C. every night and generally spent

a lot of time with him. After that period the applicant who was no

longer unemployed continued to have close contact with the boy who only

lived a short distance away.

In or about 1986, M.'s husband left the matrimonial home.

On application by the NSPCC ( National Society for the Prevention

of Cruelty to Children), C. was removed from the care of his mother

under a Place of Safety Order on 2 February 1989 on suspicion that he

had been sexually abused by her. On 3 February 1989, M. was arrested

and charged with sexual offences.

C. was placed with foster-parents on 2 February 1989.

Interim care orders were granted by the Juvenile Court on

9 February 1989, 9 March 1989 and 6 April 1989.

On 12 April 1989, Lancashire County Council (the local authority)

held a case conference and decided that the NSPCC should apply for a

full care order on behalf of the local authority in view of M.'s

continued refusal, supported by the applicant and other members of the

family, to accept that abuse had taken place. The same day they

received notification from the Crown Prosecution Service that the

charges against M. were not to be pursued for lack of evidence.

On 26 April 1989, the Juvenile Court found that the allegations

of sexual abuse had been made out and a care order was made in favour

of the local authority. In the report of the guardian ad litem of 13

April 1989 before the Court, the applicant was described as having been

a "a good father figure" to C.

On 21 June 1989, a social worker visited M. and the applicant to

discuss access prior to a joint meeting of the local authority and

NSPCC on the matter.

The applicant had made requests for access to C. throughout his

placement in care. Following his request dated 28 August 1989, the

local authority informed him that they were about to review access

arrangements. On 7 September 1989, he was informed that he was to be

allowed a supervised access visit to C., which took place on

13 September.

On 30 October 1989, following a case conference attended by M.,

the local authority decided to terminate M.'s access to C. They also

decided not to grant further access to the applicant since he continued

to deny that sexual abuse had occurred.

M. withdrew her appeal against the termination of access before

the Juvenile Court on 24 April 1990.

The local authority decided to place C. for adoption and applied

to the county court for an order freeing him for adoption.

On 5 July 1991, the Court made the order. The judge had talked

with C. beforehand in his chambers. In his judgment, the judge reported

that C. had stated that he would not mind seeing his mother and other

members of his family but that he preferred to be adopted. The judge

reviewed the history of the case and criticized the "blinkered"

approach taken by the authorities and other shortcomings in the

procedures adopted. He stated that he had grave reservations on the

correctness of the original findings that sexual abuse had taken place.

However, in view of the time which had elapsed and the expressed

preference of C., he considered adoption was in C.'s best interests and

dispensed with M.'s consent.

Following the coming into force of the Children Act 1989, the

applicant applied to the county court for a contact order. On 27

February 1992 the court refused to make such an order.

COMPLAINTS

The applicant complains of the refusal by the local authority

to allow him to continue his close relationship with C. He submits

that apart from occasions when C. or the applicant's own family were

on holiday, there has not been one week in his life when C. has not

spent time in the applicant's home with his family. C., who lived with

his mother only four to five hundred yards away, often visited three

or four times a week. The applicant complains that he has no

possibility of applying for access in the courts. He invokes Article

8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 October 1989 and registered

on 14 May 1990.

On 7 September 1990 the Commission decided to communicate the

application to the respondent government for their observations on the

admissibility of the application.

The Commission received the government's observations dated 17

September 1991 and the applicant's comments on these, dated 6 December

1991. The Commission granted the applicant legal aid on 18 October

1991.THE LAW

The applicant complains that the local authority's refusal to

allow him access to his nephew is a violation of Article 8 (Art. 8) of

the Convention which states:

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

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

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

prevention of disorder or crime, for the protection of

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

freedoms of others."

The Government submit that in this case the relationship between

the applicant and his nephew did not amount to a connection which could

be considered as creating family life within the meaning of Article 8

(Art. 8) of the Convention. The applicant maintains that his

relationship with his nephew is more akin to father and son than uncle

and nephew and that he had no access to court to have the merits of his

claim to decided.

Having regard to the applicant's submissions in respect of his

relationship with his nephew and his inability to apply for any rights

of access to his nephew, the Commission considers that the application

raises serious issues of fact and law which can only be resolved by an

examination of the merits. The application cannot, therefore, be

declared manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE.

without prejudging the merits of the case

Secretary to the Commission President of the Commission

(H. C. KRüGER) (C. A. NØRGAARD)

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BOYLE v. THE UNITED KINGDOM

BOYLE v. THE UNITED KINGDOM

LEXI