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G. v. the UNITED KINGDOM

Doc ref: 15496/89 • ECHR ID: 001-795

Document date: December 10, 1990

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Cited paragraphs: 0
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G. v. the UNITED KINGDOM

Doc ref: 15496/89 • ECHR ID: 001-795

Document date: December 10, 1990

Cited paragraphs only

Application No. 15496/89

by G.

against the United Kingdom

The European Commission of Human Rights sitting in private

on 10 December 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 31 August 1989

by G. against the United Kingdom and registered on 14 September 1989

under file No. 15496;

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 1964 and resident

in T. He is represented by Sian Lewis-Antony, a barrister

practising for Interrights. The facts as submitted by the applicant

may be summarised as follows.

The applicant's daughter R. was born on 30 July 1985 and his

son M. on 15 April 1987. On 14 July 1987, the applicant's wife left

the applicant and the children to live with another man. On 16 July

1987, the children were made subject to a Place of Safety Order as a

result of immediate difficulties ensuing from the situation.

On 29 July 1987, the applicant was granted interim custody,

care and control of both children. Between 29 July - 19 August 1987,

the applicant's wife returned home and she and the applicant were

awarded joint interim custody. On 26 August 1987, the applicant's

wife left the matrimonial home permanently.

On 2 October 1987, the County Court ordered care and control

to be granted to the applicant and access to the applicant's wife.

On 5 January 1988, the court welfare officer applied to the

Court for a care order to be made in respect of the children under

section 43 of the Matrimonial Causes Act 1973. In her report dated

9 December 1987, the court welfare officer, while not doubting his

affection for the children, had expressed the view that the applicant

was not capable of caring for them. The Court made an interim care

order in favour of the local authority (Wiltshire County Council) but

ordered that the children remain in the applicant's custody.

On 2 February 1988, the Court placed the children in the care

of the local authority and granted the applicant weekly access of two

hours.

On 9 June 1988, the applicant's son M. died of an asthma

attack while in the care of the local authority.

On 5 July 1988, the applicant applied for increased access to

R. On 11 May 1988, the court welfare officer had stated that the

applicant had done his best to look after the children and recommended

that access be increased. The Court ordered weekly access of 2 1/2

hours for 3 weeks and thereafter 2 1/2 hours at fortnightly intervals.

On 4 October 1988, the Court reduced access further to

1 1/2 hours every 3 weeks. On 19 December 1988, there was a further

hearing before the Court to consider access by both the applicant and

his wife who had applied separately for access. The Social Services

of the local authority wished to reduce access further with a view to

securing R.'s long-term future with her new family. In her affidavit

of 14 December 1988, the senior social worker on the case, Mrs. B.,

gave the view that continued frequent access would be disruptive and

distressful for R.

The case was adjourned on application of the local authority

due to the illness of Mrs. B. The hearing was re-scheduled for

2 March 1989. On the day of the hearing the applicant sought an

adjournment since the court welfare officer was ill and unable to

attend the hearing. In her report of 23 September 1988, the officer

had stated that termination of access would be harmful to R. and

visits should be set at no less than once per month.

The judge refused an adjournment on the ground that it would

not be in the child's interest to adjourn further. After the hearing,

the judge reduced the applicant's access to 4 times per year.

The applicant did not appeal to the Court of Appeal against

the refusal of an adjournment.

COMPLAINTS

The applicant complained that he did not have a fair hearing

within the meaning of Article 6 para. 1 of the Convention since the

judge refused to order a short adjournment in order to allow the court

welfare officer to attend. The applicant also complained that his

right to respect for his family life had been violated by the order of

2 March 1989 restricting access. The failure to grant an adjournment

also violated Article 8 of the Convention since procedures determining

issues relating to family life must be such as to respect family life.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 August 1989 and

registered on 14 September 1989.

By letter dated 18 October 1989, the Commission's Secretariat

requested the applicant to explain whether he had appealed to the

Court of Appeal against the refusal of an adjournment. On 16 January

1990, the applicant's representative replied that it appeared that he

had not exhausted domestic remedies and suggested that the case be

withdrawn pending exhaustion.

On 12 March 1990, the Commission decided to adjourn the

examination of the case.

By letter dated 4 October 1990, the applicant's representative

informed the Commission, that since the applicant's solicitor had

failed to exhaust the available domestic remedies, she wished to

withdraw the application.

REASONS FOR THE DECISION

The Commission notes that the applicant's representative has

informed the Secretariat that the applicant has not exhausted domestic

remedies in respect of his complaints and that she therefore wishes to

withdraw the application. In these circumstances, the Commission

finds that the applicant does not intend to pursue his application

before the Commission within the meaning of Article 30 para. 1 (a) of

the Convention.

It further considers that the respect for Human Rights as

defined in the Convention does not require that the Commission

continues its examination.

It follows that the application shall be struck off the list

of cases pursuant to Article 30 para. 1 of the Convention.

For these reasons, the Commission unanimously

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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