Lexploria

Application No. 14558/89

by R.M.

against the United Kingdom

The European Commission of Human Rights sitting in private on

8 June 1990, the following members being present :

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H. DANELIUS

G. BATLINER

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

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 20 January 1989

by R.M. against the United Kingdom and registered on 30 January 1990

under fule No. 14558/89 ;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission ;

Having deliberated ;

Decides as follows :

THE FACTS

The applicant is a British citizen born in 1955 and resident

in Cardiff. He is represented by Mrs. Mary Minton, a solicitor

practising in Cardiff. The facts as submitted by the applicant may be

summarised as follows.

The applicant cohabited for a number of years with Maria

Hazam, who gave birth to three children R (born on 22 July 1976), F

(born on 4 July 1979) and I (born on 19 March 1981) of whom the

applicant is the father.

In 1982, the applicant returned for family reasons to Yemen,

where he stayed for 2 1/2 years. He continued to keep in touch with his

family in the United Kingdom, having the intention to return as soon

as he was able.

On 29 July 1982, Maria Hazam placed the three children in the

voluntary care of South Glamorgan County Council (hereafter the local

authority) on the ground that she was unable to cope.

On 29 December 1982, Maria Hazam discharged R from care.

On 3 November 1983, the local authority assumed parental

rights over F and I pursuant to a resolution made under section 3 of

the Child Care Act 1980.

The applicant returned to the United Kingdom in May 1984 and

discovered F and I were in care and Maria Hazam living with another

man. He was able to visit F and I in the company of Maria Hazam but

was not allowed access on his own.

On 19 August 1984, the local authority decided to terminate

Maria Hazam's access to F and I.

On 11 March 1985, the applicant married another woman Deborah

Jane Davey. In May 1985, the applicant's solicitors requested the

local authority to give access to F and I for the applicant and his

wife.

In or about July 1985, R was transferred by Maria Hazam into

the care of control of the applicant and his wife.

The applicant and his wife were granted access to F and I from

October 1985. Access was terminated however by the local authority in

January 1986 after nine access visits on their decision to place the

children for adoption.

On 22 June 1986, the applicant and his wife had a child S.

On 4 September 1986, the applicant applied for legal custody

and access to F and I under sections 9 and 14 of the Guardianship of

Minors Act 1971. On 20 March 1987, the County Court granted interim

access to the applicant and directed a report to be compiled by the

Court Welfare Officer.

On 20 May 1987, the Court of Appeal allowed the local

authority's appeal against the interim access order, which was set

aside. The Court refused leave to appeal to the House of Lords.

The proceedings were transferred to the High Court. On

30 July 1987, the High Court dismissed the applicant's application but

certified a point of law of general public importance and gave leave

to apply to the House of Lords.

In a report dated 25 January 1988, the Court Welfare Officer

found that the local authority had failed to support or prepare the

applicant and his wife in the period of access visits and that it had

had little regard for the problems experienced by the applicant and

his wife. The report concluded that the applicant wasd genuinely

concerned about the children, had coped very well with R who had lived

in his home since July 1983 and there was nothing to be repeated to

the court which should prevent the applicant from fulfilling his

obligation as a father to F and I.

On 14 March 1988, the House of Lords gave leave to appeal both

the decision of the Court of Appeal of 20 May 1987 and the decision of

the High Court of 30 July 1987.

On 28 July 1988, the House of Lords dismissed both appeals.

It held that although the courts had jurisdiction to entertain the

applicant's application for access and custody, they were bound by

reason of the principles laid down in A v. Liverpool City Council

(1982 AC 363) and Re M (a minor), 1985 AC 791) to exercise their

discretion to dismiss the application.

In November 1988, the local authority discussed with F and I

the possibility of living with the applicant. In view of the

enthusiastic response, and after a period of preparation (including a

3 week stay over Christmas) F and I went to live withe the applicant

on 10 February 1989. The children remain the subject of a resolution

under section 3 of the Child Care Act 1980 taken by the local

authority to assume the parental rights and duties of their mother.

The local authority continues to supervise the placement of the

children with the applicant.

COMPLAINTS

1. The applicant complains of being unable to have a hearing on

the merits of his claim for access or custody before the English

courts, since the courts are bound not to intervene in matters within

the discretion of the local authority. He invokes Article 6 of the

Convention.

2. The applicant also complains of an interference with his right

to respect for his family life, since the English legal system affords

no machinery whereby he can gain access or custody. He invokes Article

8 of the Convention in this respect.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 January 1989 and

registered on 30 January 1989.

On 13 April 1989, the Commission decided to bring the

applicaiton to the notice of the respondent Government and to invite

them to submit observations on its admissibility and merits pursuant

to Rule 42 para. 2 (b) of the Commission's Rules of Procedure.

The respondent Government submitted their observations on 20

June 1989 and the applicant submittted his observations in reply on 18

July 1989. The respondent Government submitted supplementary

observations on 6 November 1989.

On 6 February 1990, the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

application.

On 17 April 1990, the respondent Government informed the

Commission that they had made proposals to the applicant to settle the

case in light of the change in legislation after 1 April 1989.

On 1 June 1990, the respondent Government informed the

Commission that the parties had agreed to settle the case on the basis

of the payment of £ 4,000 and payment of legal expenses.

On 6 June 1990, the applicant's solicitor confirmed the settlement and

stated that the applicant withdrew the application.

REASONS FOR THE DECISION

The Commission notes that the children have been living with

the applicant since February 1989 under the supervision of the local

authority and that on 1 April 1989 the Family Law Act 1987 came into

force providing that a father of a child born out of wedlock could

apply for a parental rights order, giving him the same status as

married parents and standing to apply to the courts for, inter alia,

discharge of a care order or on termination of access.

The Commission further notes that the parties have agreed to

settle the case on the basis of the payment of £ 4,000 and legal

expenses and that the applicant accordingly wishes to withdraw his

application.

In these circumstances the Commission finds that the applicant

does not intend to pursue his application before the Commission since

the matter has been resolved within the meaning of Article 30 para. 1

(a) (Art. 30-1-a) and (b) (Art. 30-1-b) of the Convention. The

Commission further considers that respect for Human Rights as

defined in the Convention does not require that the Commission

continue its examination.

It follows that the application shall be struck off the list

of cases pursuant to Article 30 para. 1 (Art. 30-1) of the Convention.

For these reasons, the Commission

DECIDES TO STRIKE THE APPLICATION OFF THE LIST OF CASES.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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R.M. v. THE UNITED KINGDOM

R.M. v. THE UNITED KINGDOM

LEXI