AS TO THE ADMISSIBILITY

Application No. 12523/86

by David GRIBLER

against the United Kingdom

        The European Commission of Human Rights sitting in private on

13 May 1987, the following members being present:

                    MM. J.A. FROWEIN, Acting President

                        G. SPERDUTI

                        M.A. TRIANTAFYLLIDES

                        G. TENEKIDES

                        S. TRECHSEL

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                        H.G. SCHERMERS

                        H. DANELIUS

                        G. BATLINER

                        H. VANDENBERGHE

                   Mrs  G.H. THUNE

                   Sir  Basil HALL

                   Mr.  F. MARTINEZ

                   Mr.  J. RAYMOND, Deputy 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 19 August 1986

by David GRIBLER against the United Kingdom and registered on

4 November 1986 under file No. 12523/86;

        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 they have been submitted by the applicant, a

British citizen, born in 1935 and of no fixed abode, may be

summarised as follows:

        The applicant married in April 1973 and from that marriage had

one child, a daughter, born on 23 August 1974.  By July 1977 the

marriage had broken down and the applicant issued wardship proceedings

in the High Court contesting the mother's ability to provide a proper

home and making allegations that the mother was an alcoholic.  During

the course of these proceedings, the mother received legal aid from the

Law Society, whilst the applicant did not.  The hearing came to an end

prematurely, by consent, partly due to the applicant's inability to

proceed any further due to the expense involved.  An order was made by

the judge for care and control of the child to be given to the mother

and for the social services department of the area in which the mother

was living to supervise this.  Provision was made in the order for the

applicant to have access to the child.

        In December 1977 the marriage was dissolved, a decree nisi

was granted and later the decree was made absolute.

        In June 1978 there was an attempted reconciliation between the

applicant and the mother, and the High Court made an order allowing

them to take the child out of England and Wales to Spain on holiday.

This holiday proved successful and, on returning to England, the

applicant and the mother agreed to attempt to start a new life in the

United States of America.  They left England to settle in the USA

indefinitely, taking the child with them.  They did not notify the

social services of their plans and they did not seek the leave of the

High Court although they were aware that failure to do this would be

in breach of the High Court order since the child was still a ward of

court.

        The social services, in December 1979, restored the matter

before the judge who made an order to suspend the supervision order

and made an order requiring that the applicant and the mother attend

before the court within fourteen days of their return to the

jurisdiction.

        The reconciliation did not work out and the applicant contends

that this was due to the drinking problem of the mother.  The mother

and child returned to England and in February 1980, after living in

several places, moved to London to live with a relative and a friend

of the relative, Mr.  X, and his children.  During this period the

applicant returned to England and became very anxious for the child's

safety.  He was concerned about the mother's excessive drinking and

also the relationship which had developed between her and Mr.  X. The

applicant believed him to be both violent and dangerous, and after

receiving some inside information from the police about Mr.  X, the

applicant was fearful that the child was at serious risk and therefore

took her back to America with him on 10 May 1980.  The applicant was

aware that this was in breach of the High Court order, but feared that

if he expressed his concerns to the High Court, it might put the child

into care.

        On 13 May 1980 the mother and the social services department

of the County Council obtained from the High Court an order requiring

the child to be handed over by the applicant.  The applicant was aware

of the order but did not comply with it.  Whilst the applicant was in

the United States, he corresponded with his solicitors, explaining why

he had taken the child back with him to America.  He also corresponded

with the mother and offered to pay for her outward journey to visit

him and the child;  she did not accept this offer.  The applicant

states that he was prepard to return the child to the mother if she

was prepared to accept treatment for her drinking problem.

        By September 1981 the relationship between the mother

and Mr.  X came to an end after she had been seriously assaulted by him.

During the course of September 1981, sixteen months after the child

had been taken to the United States, the mother travelled out there

and had a meeting with the applicant.  The parties could not agree on

what action to take and they instituted separate proceedings against

one another in the American courts.  Agreement was however quickly

reached and was embodied in an order of a Californian Court.  The

terms were, inter alia, that the mother was to return to England with

the child and to immediately report to the High Court in England,

informing it of the return of the child to the court's jurisdiction.

In addition, the applicant was to be informed of the child's

whereabouts and be allowed to visit and communicate with the child

according to the orders made by the High Court.

        On the mother's return to England, she took no immediate steps

to notify the High Court or the local authority of her and the child's

return to the country and she did not notify the applicant of her and

the child's whereabouts.  The applicant then returned to England and

notified the High Court in November 1981 of the mother's return with

the child to the country and began a search for them.

        The mother applied ex parte to the High Court for an order

that the applicant should not remove the child from her care and

control.  The order was granted on 12 November 1981 and it provided

that the applicant should not have access to the child except on seven

days' notice.  The applicant states that he received no notice of this

order until 5 December 1981 when he went round to where the mother and

child were living and was denied access to the child.

        The mother applied to the High Court for committal of the

applicant for a breach of the High Court order in that he had taken

the child out of the care and control of the mother and out of the

jurisdiction of the High Court on 10 May 1980.  The application was

heard and judgment was delivered on 18 January 1982 ordering a two

month committal suspended on the condition that the applicant pay

£750 compensation to the mother in part discharge of her expenses in

tracing the child in the USA.  Directions were also given for the

application by the applicant for access to the child and these

directions included the submission of a report by the welfare officer

and also a report by the supervising authority.

        In May 1982 the applicant was granted, by the High Court, a

defined period of one hour's visiting access which was to be

supervised by the social worker involved with the case.

        The welfare officer's report was made on 14 July 1982.  The

welfare officer reported that in January 1982 the mother

went through a form of "marriage" with a man, Mr.  Y, she had been

living with since March 1981.  Mr.  Y at that time was still married

and the "marriage" was bigamous.  Separate to this, the mother of the

child had received suspended sentences of imprisonment in May 1982

after pleading guilty to certain matters of dishonesty.  There were

also various other criminal proceedings pending in connection with a

business venture, and the welfare officer reported that it was hoped

the outcome of these would not result in the mother's imprisonment.

        Despite the difficult position, the welfare officer felt that

the mother was caring for the child in an "efficient and capable

manner" and additionally the applicant himself was not adverse to

allowing the mother to retain custody of the child.  The welfare

officer recommended that the applicant be allowed limited access and

that the social worker involved should keep himself appraised of how

matters progressed and report back to the court.  The child, at this

stage almost eight years old, was happy with these arrangements but

asked that an elder sibling accompany her on any access visits.

        In July 1982 the High Court ordered visiting access for the

applicant every three weeks and there then followed a period in which

access proceeded according to the court order.  The applicant made

application to the court for visiting access for the child to visit

his home, but this was turned down following a report by the court

welfare officer, made on 17 October 1983.  This report concluded that

"until access is a happy event on every occasion for (the child) she

will not learn to trust and respect her father and feel secure enough

to say yes to visiting access".

        In June 1984 the High Court ordered supervised access by the

court welfare officer.  The applicant states that on one supervised

visit, on the court welfare officer's suggestion, the applicant took

his child swimming.  The applicant alleges that on this occasion

the court welfare officer molested the child in the swimming pool.

The applicant states that he did not intervene or make a complaint at

the time as he was worried about the effect the complaint would have

on the court welfare officer's report for the court hearing scheduled

for July 1984.  At that hearing the applicant complained to the judge

who recommended he refer the matter to the appropriate authorities.

The applicant wrote to the Inner London Probation Committee, lodging a

formal complaint, who, after receiving a denial of the alleged

molestation from the court welfare officer concerned, informed the

applicant that they would be taking no further action and advised him

that if he wished to proceed with the matter he should refer the

allegation to the police.  The police, on the ground that no evidence

had been provided to substantiate the allegation, took no action on

the matter.

        From the welfare reports it was clear that not all was well

with the access arrangements although they were proceeding.  In July

1984 the child made it clear to the court welfare officer that she was

prepared to continue to see the applicant and go out with him only on

the clear understanding that she was giving him his last chance and

that if he upset her again she would refuse to see him.

        In December 1984 the applicant married his present wife whom

he had known for over twenty years.

        In March 1985 the matter of access was again referred back to

the High Court.  The child was said to be upset by the access visits

and refused to see the applicant.  The social worker reported that the

child "is adamant that she does not want to see her father again, and

I could not get her even to consider access which would be entirely on

her own terms.  She did, however, accept that her view may change with

time.  I think (the applicant) will have a lot to do, and from a

distance, before he will be able to re-establish any kind of rapport

with his daughter."

        It was on this evidence that the judge on 25 March 1985

discharged the access order, and the applicant has not seen the child

since that date.

        On 23 March 1986 the mother and Mr.  Y were convicted of

obtaining money by deceit, and the mother was sentenced to a term of

imprisonment of three months which expired on 23 May 1986.

        Following the mother's imprisonment in March 1986, the

applicant, acting in person, applied to the High Court for care and

control of the child to be given to him.  The applicant based his

contention on his and his present wife's ability to provide the

necessary continuity for the child.  He stated that they lived

principally in a motor home in which they travelled extensively, both

in the United Kingdom and abroad, but had two houses in which a

permanent base could be provided for the child in England.  The

applicant was further prepared to guarantee the child's fees and

future at the boarding school which she was then attending, the fees

previously having been paid by the local authority.  The applicant

contended that the mother could not provide the necessary stability

for the child due to her over-dependence upon alcohol and her various

clashes with the law.

        Judgment was delivered by the High Court on 1 May 1986.  The

judge had some sympathy for the applicant's application and found him

to be undoubtedly a devoted father.  The judge, however, concluded

that "at the end of the day, despite the difficulties that the mother

has had, this child has still got a stable background.  It is quite

clear that she and her mother are very close indeed ... as I have

said, despite the difficulties that the mother has had to contend with

(the child) is a stable, attractive girl of whom everybody, including

her present headmistress, is very fond indeed."  The judge rejected

the applicant's application and on the question of renewed access did

not rule out the possibility of this in the future.  The judge ordered

in particular:

1.      that the applicant's summons be dismissed;

2.      that the child remain in the care and control of the mother;

3.      that the child remain under the supervision of the Cambridge

        County Council;

4.      that the applicant be restrained from approaching within a

        quarter of a mile of the school or home of the child and

        not communicate with the school;

5.      that the social worker concerned report at six monthly

        intervals upon the possibility of access between the applicant

        and the child being restored; and

6.      that the applicant bring no further application with regard

        to the child without the leave of the court.

        The applicant appealed against the decision of the High Court

to the Court of Appeal, but the appeal was rejected on 24 July 1986

and leave to appeal to the House of Lords was not granted.

        In the High Court proceedings and the Court of Appeal

proceedings, the applicant was not legally aided, whilst the

mother received legal aid and legal representation.

COMPLAINTS

        The applicant complains that he was denied a fair hearing as

guaranteed by Article 6 of the Convention in the determination of his

civil rights in relation to his applications for care and control and

access to the child.  He states that he was not given the opportunity

of cross-examining the court welfare officer in the hearing at the

High Court on 1 May 1986 on matters relating to the court welfare

officer's alleged molestation of the child.  He also complains of

having been ordered by the High Court judge not to bring any further

application with regard to the child without the leave of the court.

        The applicant also contends that the grant of legal aid to the

mother and his non-eligibility for legal aid prejudiced a fair

hearing in relation to his applications.

        The applicant further claims to be a victim of Article 3 of

the Convention referring to the alleged mal-administration of the

courts and their officers in allowing the court welfare officer to

continue to supervise and make reports on the child after the

applicant's allegations of sexual impropriety.  The applicant contends

that contact with the court welfare officer subjected the applicant to

inhuman or degrading treatment.

        The applicant further invokes Articles 8, 10, 11, 13 and 14 of

the Convention in consequence of the order of the judge on 1 May 1986.

He claims the order denying care and control or access to the child

was an infringement of his right to respect for private and family

life, freedom of expression and freedom of association.  The applicant

contends that he has been discriminated against in these proceedings

and that there is no effective remedy under English law for breaches

of any of the Articles he has raised.

        The applicant appeals to the Commission to rectify these

matters by returning the child to him and awarding compensation to the

child and to him.

THE LAW

1.     The applicant first complains that he was denied a fair hearing in

the proceedings relating to his applications for care and control and

access to his daughter, contrary to Article 6 (Art. 6) of the

Convention, which provides as far as material:

"1.   In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

        The applicant contends in particular that his right to a fair

hearing was prejudiced in that he was not given the opportunity to

cross-examine the court welfare officer in the hearing on 1 May 1986

on matters relating to the court officer's alleged molestation of the

child.  He also complains of having been ordered by the High Court

judge not to bring any further application with regard to the child

without the leave of the court.

        The Commission considers that there is nothing to show

that the applicant was hindered from cross-examining the court welfare

officer on matters pertinent to the hearing.  As regards the order not

to bring new applications regarding the applicant's daughter, the

Commission notes that the applicant was not thereby excluded from

access to a court, since the judge expressly indicated that he could

ask for leave of the court in order to bring such applications.

        It follows that this aspect of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.      The applicant also complains of his non-eligibility for legal

aid.  The Commission observes that no right to free legal aid in civil

proceedings is, as such, included among the rights and freedoms

guaranteed by the Convention, although denial of legal aid could in

certain circumstances amount to a failure to ensure a fair hearing

under Article 6 para. 1 (Art. 6-1) of the Convention (cf.  No.

6958/75, Dec. 10.12.75, D.R. 3 p. 155).  Furthermore, the Commission

has also held that the operation of financial qualifications for legal

aid, and a restriction on its availability to cases with objective,

fair, prospects of success is a reasonable application of limited

public funds for the purpose of ensuring a fair hearing (cf.  No.

8158/78, Dec. 10.7.80, D.R. 21 p. 95).  There is no indication that

the applicant was refused legal aid on any other ground.  Nor is there

any indication that the absence of legal aid adversely reflected on

the fairness of the court proceedings concerned.

        It follows that this part of the applicant's complaint is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.      The applicant also complains that his necessary contact with

the court welfare officer, after he had allegedly molested the child,

amounted to inhuman or degrading treatment which the court and its

officers should have prevented.  The Commission does not however

consider that the treatment of which the applicant complains attains

the degree of seriousness which would bring it within the sphere of

application of Article 3 (Art. 3) of the Convention according to the

consistent case-law of the Commission and the European Court of Human

Rights.  It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

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

private and family life has been infringed by the court not awarding

him care and control or access to the child.

        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."

        The Commission recognises that according to its established

case-law the right to respect for family life also extends to the

right of a parent to have access to or contact with his child on the

understanding that the State may not interfere with the exercise of

that right otherwise than in accordance with the strict conditions set

out in paragraph 2 of the Article (Art. 8-2) (cf.  No. 911/60, Dec.

10.4.61, Collection 7 p. 7; No. 7911/77 Dec. 12.12.77, D.R. 12 p. 192;

and No. 6427/78, Dec. 13.3.80, D.R. 18 p. 225).

        When deciding the question of care and control and access to

children following the breakdown of a marriage, domestic courts may properly

take into account under paragraph 2 of Article 8 (Art. 8-2) the welfare of the

child and the child's own wishes.  Where a domestic court has refused to a

parent a right of care and control or access to his or her child, the

Commission nevertheless ultimately has a task to judge whether such refusal is

justified under the provisions of paragraph (2) of Article 8 (Art. 8-2).

        In the present case the applicant had, prior to the application

heard on 1 May 1986, consented to the mother having care and control of

the child.  The High Court had up to that point accepted his right

to limited access.  The High Court on 1 May 1986 refused the applicant

care and control of the child and also refused him access to the

child, at least for the immediate future.  In so doing, the Court

based its decision on not only the events of the past and the various

reports submitted from time to time, but also on the wishes of the

child.

        There was evidence before the High Court and the Court of

Appeal on the question as to how the child's best interest could be

served and whether to grant the applicant care and control or a

right of access to the child would be in the child's best interests.

        In these circumstances the Commission, having regard to the

facts as submitted by the applicant, finds that there is nothing to

show that the courts acted otherwise than in the best interests of the

child in refusing the applicant care and control and access.  Hence,

the measures taken in the case were in accordance with the law and

necessary in a democratic society for the protection of the health of

the child under Article 8 para. 2 (Art. 8-2) of the Convention,

        It follows that this aspect of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5.        The applicant further complains that there have been

violations of his rights under Article 10 (Art. 10) - the right to

freedom of expression, Article 11 (Art. 11) - the right to freedom of

association, and Article 14 (Art. 14) - the freedom from

discrimination.

        The Commission has also examined these complaints as they have

been submitted by the applicant.  However, these complaints are wholly

unsubstantiated and it follows that this part of the application is

also manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

6.      The applicant further complains that he has been denied any

effective remedy before a national authority in respect of his

complaints, contrary to Article 13 (Art. 13) of the Convention.

        In so far as this complaint relates to fairness of court

proceedings under Article 6 (Art. 6) of the Convention and to respect

for family life under Article 8 (Art. 8) of the Convention, the

Commission recalls its constant case-law that Article 6 (Art. 6) of

the Convention provides a more rigorous procedural guarantee than

Article 13 (Art. 13) and therefore operates as a lex specialis with

regard to a civil right to the exclusion of the more general

provisions of Article 13 (Art. 13) of the Convention.  The Commission

also refers to its above findings under Article 6 (Art. 6).

        It therefore follows that no separate issue arises in respect

of these complaints under Article 13 (Art. 13) of the Convention.

        In respect of the applicant's remaining complaints under

Article 13 (Art. 13) of the Convention, the Commission observes that this

provision is only applicable when an applicant has an arguable claim

that there has been a breach of other rights and freedoms contained in

the Convention (cf. Eur. Court H.R., judgment of Silver and others

of 25 March 1983, Series A no. 61).

        The Commission has already considered that the applicant's

substantive complaints under the Convention do not disclose any

appearance of a violation of any of the other provisions of the

Convention.  Furthermore the applicant has not made out a clear

complaint of how he considers Article 13 (Art. 13) to be at issue in

respect of his remaining complaints.

        The Commission therefore considers that the applicant has not

been shown to have an arguable claim under Article 13 (Art. 13) of the

Convention.

        It follows that this aspect of the applicant's complaint is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission      Acting President of the Commission

            (J. RAYMOND)                          (J.A. FROWEIN)