Lexploria

Application No. 11117/84

by E.M. and C.M.

against the United Kingdom

The European Commission of Human Rights sitting in private

on 7 May 1987, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

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 30 August 1984

by E. and C. M. against the United Kingdom and registered on 4

September 1984 under file N° 11117/84;

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 application is presented by Ms. E.M., born in 1948 and

her daughter, born out of wedlock in 1980 and concerns certain aspects

of the legal status of "illegitimate" children under Scots law.

The applicants are represented by Mr John Hanlon, Solicitor,

of Messrs McSherry, Halliday & Co., T. Gordon Coutts, Q.C., and

Douglas J. May, advocate.

The first applicant raised an action of affiliation and

aliment against Mr. J. in Kilmarnock Sheriff Court on 18 May 1983

She sought a finding that the defender is the father of the second

applicant, and an order for payment of aliment for her child. The

court was also asked to appoint the first applicant guardian of the

child under Section 4(2A) of the Guardianship of Infants Act 1925.

Mr J. stated, in his defence, that he was not the father of

the second applicant.

The parties to the action brought by the first applicant

lodged in court a joint minute stating that the first applicant and

Mr. C were willing to give samples of blood but that no competent

person could grant authority to obtain blood from the child. They

asked the court to appoint a curator ad litem to represent the

child's interest in the action and to remit the case to Court of

Session to enable the parties to seek its consent for a blood sample

to be taken from the child.

In the meantime, in January 1983, Sheriff Smith in Kilmarnock

Sheriff Court had ruled in the case of Susan Clarke that the

mother of an "illegitimate" child could not consent to take blood

tests for purposes of evidence in paternity proceedings since she did

not have the status of tutor of the child. He had advised the mother,

in that case, to petition the Court of Session, asking it to use its

special equitable jurisdiction to authorise the taking of blood tests.

On 26 April 1984 the Court of Session gave its order authorising the

taking of blood in the Susan Clarke case.

On 15 May 1984 the Sheriff refused the request made in the

joint minute, stating that the appropriate procedure was not to

transfer this action to the Court of Session, but to present a

separate petition to the Court of Session, asking it to use its

special equitable jurisdiction (nobile officium). He also denied

the first applicant's request to be appointed guardian on the basis

that Section 4(2A) does not apply where a child has a parent.

The first applicant, accordingly, petitioned the Court of

Session in August 1984. The petition stated that as the first

applicant was not the tutor of the child she was unable to give the

necessary consent to taking a blood test. It asked the Court of

Session to give its authority for a blood test to be taken.

On 4 October 1984 the Court of Session appointed Mr. Stein,

advocate, to be curator ad litem to represent the interests of

the second applicant (C.M.). The curator ad litem

lodged answers in July 1985 requesting that the petition be dismissed.

He stated that it was not competent for the court to grant authority to

take blood tests without the consent of the child concerned or of a

proper person on her behalf. He also alleged that no person is

lawfully entitled to give his consent.

Since the lodging of the application the law in Scotland

concerning children born out of wedlock has been changed by the Law

Reform (Parent and Child) (Scotland) Act 1986 which came into force on

8 December 1986.

Under Section 2 of the 1986 Act "a child's mother shall have

parental rights whether or not she is or has been married to the

child's father". Parental rights means "tutory, curatory, custody or

access, as the case may require and any right or authority relating to

the welfare or upbringing of a child conferred on a parent by any rule

of law" (Section 8).

Consent to the taking of blood samples from a pupil child can

now be granted by either his tutor or any person having custody or

care and control of him or by order of a court (Section 6 (2) and

(3)).

The first applicant is now competent, as the second

applicant's tutor, to consent to blood tests being taken from the

second applicant.

COMPLAINTS

Articles 8 and 14

The applicants complained of the following aspects of the

status of the "illegitimate" child under Scots law.

Under Scots law the parents of a "legitimate" child have the

rights of guardianship in respect of their child with the consequent

powers to act in the child's interest to grant consent to blood tests,

to administer the child's property, to raise court actions in respect

of pupil children and to consent to actions raised by minor children.

Moreover, a "legitimate" child has the right to the protection and

guidance of his parents or, in the event of his parents being dead, to

such guardians as are appointed to him by parental testament or by a

court under the Guardianship of Infants Act 1925.

An "illegitimate" child, on the other hand cannot have a legal

guardian. If the child has property an application has to be made to

the court for the appointment of a factor loco tutrix. If the

child, when a pupil, requires to raise an action, the action has to be

raised in the child's name and a curator ad litem appointed by

the court. Scots law denies to the mother the tutory or curatory of

her "illegitimate" child.

The mother and "illegitimate" child are not recognised by Scots

law as a family. Decisions in relation to the child's well-being and

property are required to be taken by a person outside the family.

Consequently, the law discriminates against parents and children in

the enjoyment of their right to respect for family life, contrary to

Articles 8 and 14 of the Convention.

OBJECT OF THE APPLICATION

The applicants sought a declaration that there is a breach of

the Convention in respect of their position and that of "illegitimate"

children and their mothers under Scots law. They sought also to

persuade the United Kingdom Government to promote legislation to amend

the law of Scotland.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 August 1984 and

registered on 4 September 1984. The Commission decided, on

10 July 1985, to give notice of the application to the respondent

Government and to request it to submit its observations in writing

before 8 November 1985 on the admissiblity and merits of the

applicants' complaints under Articles 8 and 14 (Art. 8, 14) of the Convention.

The observations of the respondent Government were received on

11 November 1985 and the applicants' observations in reply on

30 December 1985.

The Commission again considered the application on

13 May 1986 and decided to adjourn it pending the judgment of the

Court of Session in the applicants' case.

In the meantime the Law Reform (Parent and Child) (Scotland)

Act 1986 was given the Royal assent on 26 March 1986 and came into

force on 8 December 1986. The applicants' legal representatives

informed the Secretariat on 2 Febuary 1987 that, in view of the coming

into force of the 1986 Act, the applicants no longer sought to pursue

their application.

REASONS FOR THE DECISION

The Commission notes that the applicants complained under

Articles 8 (Art. 8) and 14 (Art. 14) of the Convention of the legal

status of a child born out of wedlock under the law of Scotland. It

further notes that the applicants now seek to withdraw their

application in view of the coming into force of the Law Reform (Parent

and Child) (Scotland) Act 1986 which inter alia has the effect of

conferring full parental powers on the first applicant in respect of

her child. Against this background, the Commission finds the

applicants no longer seek to pursue their application and that there

are no reasons relating to the general interest to continue an

examination of the application.

For these reasons, the Commission

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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E. and C.M. v. THE UNITED KINGDOM

E. and C.M. v. THE UNITED KINGDOM

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