Lexploria

AS TO THE ADMISSIBILITY

Application No. 12807/87

by C.

against the United Kingdom

The European Commission of Human Rights sitting in private on

3 March 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 3 July 1985

by C. against the United Kingdom and registered on 13 March

1987 under file No. 12807/87;

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 facts as submitted by the applicant, an Italian citizen

born on 29 August 1949 living in Naples, Italy, and an engineer by

profession, may be summarised as follows.

The applicant was married on 12 July 1980 and his wife is a

British citizen currently living in England. There are two children

of the family, a son born on 13 October 1982 and a daughter born on

20 December 1985. Both children hold dual nationality.

The applicant states that during the course of the first half

of 1985, whilst he and his wife were living in France, it became

apparent that there were a number of problems with their marriage.

The applicant states that his wife became accusatory and critical of

his behaviour and she spoke of separation. The applicant states that

he tried to avoid provocation from his wife but that on one occasion

he had to slap his wife to stop her from telling the son demeaning

things about the applicant.

After this incident the applicant's wife got drunk and

threatened suicide. The applicant calmed her down and a few days

later took her to a doctor who gave her sedatives. That Easter the

applicant, his wife and son went to Italy for a visit. The

applicant's wife during the visit argued with the applicant's

relatives and slapped the applicant's mother.

On 10 April 1985 the applicant's wife insisted on going to

England and taking the son with her. She left on 12 April 1985.

Shortly after her return to England, she informed the applicant that

she was pregnant and that she intended to return to the applicant's

home shortly.

However, on 2 May 1985 the wife wrote to the applicant saying

that she could never return to Italy or France explaining some of the

difficulties in their relationship and in particular some of the

problems she had experienced with the applicant's family and way of

life. The wife saw that the only chance for their relationship to

continue was if the applicant went to live and find work in England.

In this letter, the wife informed the applicant that she would be

making the son a ward of court.

On 3 May 1985, in the High Court, the son was made a ward of

court. The applicant states that he was not informed about the

wardship proceedings, and was not served with the documents prior to a

hearing which took place on 5 June 1985 which confirmed the wardship

of the son, awarding care and control to the applicant's wife and

allowing the applicant liberty to apply for access. At the hearing on

5 June 1985 the court was aware that the applicant had not been served

with a summons notifying him of the proceedings, but evidence was

adduced by the wife that the applicant had decided not to come

within the jurisdiction because of the wardship proceedings. The

applicant was served with notice of the wardship order on 13 June 1985

when he visited England.

The applicant states that he made several attempts at a

peaceful reconciliation with his wife, which were nonetheless rejected

by her on the ground that she disliked Italy and the Italians.

The applicant states that he took advice from an English

solicitor on the question of whether to appeal against the order of

wardship on 5 June 1985. He was not, however, able to obtain legal

aid and the funds, approximately £12,500, he held in a joint bank

account with his wife in England were not available to him, since the

account required his signature and his wife's for withdrawals. He did

not appeal against the decision of 5 June 1985, but was advised to

file an affidavit stating that he would not remove the son from the

jurisdiction of the High Court. He filed this affidavit as he was

advised that unless he did so he would not be able to obtain access to

his son.

The applicant subsequently instituted proceedings in England,

applying to the High Court to have the wardship discharged. He

obtained legal aid with some personal contribution and was represented

by counsel at the hearing which took place on 6 October 1986. The

application was turned down. The wardship of the son was confirmed

and the applicant's daughter, who had been born since the previous

proceedings, was also made a ward of court and her name was changed

against the applicant's will. The applicant was granted access to his

son during his visits to England, for three hours on school days, and

for four hours on non-school days. He was also granted access to his

daughter for periods of a half hour in the company of his wife.

The applicant instructed his solicitors to appeal against the

decision of 6 October 1986. On 8 December 1986 however his legal aid

certificate was discharged on grounds that the applicant had no

prospect of success in the proposed appeal and that he did not require

legal representation within the wardship proceedings. His funds in

England are still inaccessible and cannot be used to cover his legal

fees.

The applicant is concerned for the safety of his son and

daughter, and he states that his wife has a drinking habit and that

her brother, with whom she is living, keeps in the house a three and a

half metre python which is fed on live rabbits and mice. The

applicant states that his wife is suicidal, and that he is anxious

about her sexual promiscuity.

The applicant finished working in France in October 1985 and

returned to live in Naples, Italy.

COMPLAINTS

The applicant complains, in context of the wardship

proceedings, that he has not been properly informed of the nature and

cause of the accusation against him, that he has not been given

adequate time and facilities for the preparation of his defence, that

he has not been given the right to defend himself and that he has not

been given the assistance of an interpreter as guaranteed by Article 6

para. 3 (a), (b), (c) and (e) of the Convention. He also complains of

a refusal of legal aid in order to appeal.

The applicant further complains that his right to respect for

family life has been interfered with by the courts making his son a

ward of court. He invokes Article 8 of the Convention in this

respect.

The applicant further complains that the obligatory

confinement in England and Wales of his son against the applicant's

will and against his son's will is contrary to the right to liberty

safeguarded by Article 5 of the Convention. The applicant finally

complains that his son has been deprived of his right to liberty of

movement and the right to leave their own country contrary to Article

2 paras. 1 and 2 of Protocol No. 4 to the Convention.

THE LAW

1. The applicant complains that in the wardship proceedings he

has not been properly informed of the nature and cause of the

accusation against him, that he has not been given adequate time and

facilities for the preparation of his defence, that he has not been

given the right to defend himself and that he has not been given the

assistance of an interpreter as guaranteed by Article 6 para. 3 (a),

(b), (c) and (e) (Art. 6-3-a-b-c-e) of the Convention. He also

complains of being refused legal aid to appeal against the court's

decision of 6 October 1985.

Article 6 para. 1 (Art. 6-1) the Convention provides:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him,

everyone is entitled to a fair and public hearing

within a reasonable time by an independent and

impartial tribunal established by law..."

The Commission notes first of all that the rights protected

under Article 6 para. 3 (Art. 6-3) relate only to criminal

proceedings. In civil proceedings no such rights are, as such,

included in the rights and freedoms guaranteed by the Convention,

although the complaints made by the applicant could, in certain

circumstances, amount to a failure to ensure a fair hearing under

Article 6 para. 1 (Art. 6-1) of the Convention. The Commission has

considered whether the applicant, who failed to appeal, can

nevertheless be said to have exhausted domestic remedies in relation

to the complaints concerning the proceedings before the High Court, as

required by Article 26 (Art. 26) of the Convention, but finds it

however unnecessary so to decide. On an examination of the facts of

the case as presented by the applicant, the Commission finds that

there is no indication that the procedural matters on which the

applicant relies adversely affected the fairness of the hearing. He

has not shown that he did not have adequate time and facilities for

the preparation of his case and the Commission notes that the

applicant initially received legal aid and legal advice and was

represented by a barrister at the hearing on 6 October 1986.

Furthermore while there was no interpreter available to the applicant,

he has not shown that he did not sufficiently understand the

proceedings or that in this case an interpreter was necessary to

ensure a fair hearing.

Insofar as the applicant complains of a withdrawal of legal

aid for his appeal, the Commission observes that no right to free

legal aid in civil proceedings is as such, included in the rights and

freedoms guaranteed by the Convention, although the case-law of the

Commission and Court has established that refusal of legal aid could

in certain circumstances amount to denial of effective access to court

(e.g. Eur. Court H.R., Airey judgment of 9 October 1979, Series A

No. 32). The Commission also recalls that the restriction on the

availability of legal aid to cases with reasonable prospects of

success would not normally constitute a denial of access to court,

unless it could be shown that the decision of the relevant authority

was arbitrary (Application No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).

In the present case, it appears that legal aid was refused on the

grounds that the applicant had no prospect of success and that at that

time he did not require legal representation within the wardship

proceedings. Since it also appears that the applicant would have been

able to pursue the appeal himself, the Commission finds that the

applicant has failed to establish that he has been denied effective

access to court contrary to Article 6 (Art. 6)of the Convention.

In these circumstances the Commission finds no appearance of a

violation of the provisions of Article 6 (Art. 6) of the Convention.

It follows that these complaints are manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant also complains that his right to respect for

family life has been interfered with by the courts making his children

wards of court.

Article 8 (Art. 8) provides:

"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."

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with the matter after all domestic

remedies have been exhausted according to the generally recognised

rules of international law.

In the present case the applicant failed to appeal to the

Court of Appeal against the order of the High Court making both

children wards of court or to seek variation of the conditions of

access to them and has, therefore, not exhausted the remedies

available to him under English law. While it is true that the

applicant has also complained of a lack of legal aid for an appeal,

the Commission has found that he would have been able to pursue the

appeal himself and in those circumstances is not relieved from his

obligation to exhaust the remedies available to him under domestic

law. Moreover, the refusal of legal aid, on the ground, inter alia,

that the applicant had no prospect of success in the proposed appeal

proceedings, does not necessarily imply that the appeal was in the

circumstances an ineffective remedy, which the applicant was not

required to exhaust. An examination of the case therefore does not

disclose the existence of any special circumstances which might have

absolved the applicant, according to the generally recognised rules

of international law, from exhausting the domestic remedies at his

disposal.

It follows that the applicant has not complied with the

conditions as to the exhaustion of domestic remedies and that this

part of his application must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3. The applicant also complains that his son is obligatorily

confined in the United Kingdom and prohibited from leaving, contrary

to Article 5 para. 1 (Art. 5-1) of the Convention and Article 2 of

Protocol No. 4 (P4-2).

Article 25 (Art. 25) of the Convention provides however that the

Commission may only receive petitions from a "... person,

non-governmental organisation or group of individuals claiming to be a

victim of a violation ...". It follows from this provision that the

person who submits a petition must himself claim to be the victim of

the alleged violation. Accordingly insofar as the applicant complains

of the restrictions imposed on his son, who is not applicant in the

present case, the application is incompatible ratione personae with

the provisions of the Convention and must be rejected under Article 27

para. 2 (Art. 27-2) of the Convention.

However even assuming that the applicant can be construed as

complaining on behalf of his son, or that he is authorised to do so,

the Commission finds that it is not necessary to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with the matter after all domestic

remedies have been exhausted according to the generally recognised

rules of international law.

The Commission notes that the applicant has himself already

agreed not to remove the son from the jurisdiction of the court in his

affidavit sworn after the hearing on 5 June 1985. The Commission

further notes that it was, and is, open to the applicant to apply to

the High Court in the wardship proceedings should he wish to take his

children out of England and Wales. He has, therefore, not exhausted

the remedies available to him under domestic law. Moreover, an

examination of the complaint does not disclose the existence of any

special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law,

from exhausting the domestic remedies at his disposal.

It follows that the applicant has not complied with the

conditions as to the exhaustion of domestic remedies and that this

part of his application must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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C. v. the UNITED KINGDOM

C. v. the UNITED KINGDOM

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