Lexploria

The European Commission of Human Rights sitting in private on

13 October 1986, the following members being present:

MM. C. A. NØRGAARD, President

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

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. H. C. KRÜGER Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 January 1986 by A.C.

against the United Kingdom and registered on 4 March 1986 under file

N° 12043/86;

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 living in Manchester, who is a finance

representative by profession, may be summarised as follows:

The applicant met Miss X in May 1978, and lived with her more or less

continuously until 6 August 1983. Their child, A, was born on

8 February 1981. The applicant made maintenance payments to Miss X

in respect of the child.

In August 1983 the applicant's relationship with Miss X deteriorated,

and they ceased to live together. In late 1983 the applicant applied

to the Magistrates' Court in Manchester for custody of the child under

the Guardianship of Minors Act 1971. He contended that Miss X was an

unsuitable person to have the custody of A, in view of her inability

to care for him as a mother, her history of alcoholism, and her

allegedly unsatisfactory lifestyle.

The Magistrates' Court heard evidence from the applicant, Miss X, and

a number of witnesses, as to the suitability of the present

arrangements for the care of A, and the applicant's request for

custody. Evidence was heard from ten persons in all, including the

parties to the proceedings, a social worker and a court welfare

officer. On 16 February 1984 the Magistrates ordered that the custody

of A should remain with his mother, and that the applicant should have

specified access to A during the week. In the Magistrates' statement

of reasons running to 15 numbered paragraphs, they recognised that the

welfare of the child was their paramount concern, and evaluated the

various factors which had been brought to their attention in relation

to the question as to how the child's welfare could best be furthered.

They concluded, from the evidence, that the home offered by Miss X was

perfectly satisfactory, and that allegations made against her conduct,

in as far as they related to the child, were unproven. They considered

that the applicant's alternative proposal for custody of the child,

which would have involved third persons looking after the child for

considerable periods of the day, while the applicant was at work, was

less desirable for the child than the current arrangements where A

continued to live with his mother, with whom he had always lived. The

applicant appealed from this decision but abandoned his appeal in

February 1985 when Miss X voluntarily allowed him to care for A for a

period.

On 11 June 1985 the applicant applied back to the Manchester

Magistrates' Court to vary the order made in February 1984, seeking to

transfer custody of A to him, from Miss X.

These proceedings arose following an arrangement between the applicant

and Miss X, where by Miss X handed A over to the applicant on

10 February 1985. The child stayed with the applicant until

15 April 1985. The applicant contended that during this period Miss X

had not visited A, and had willingly transferred the child's custody

to him and had signed a note to this effect. She also transferred the

entitlement to child benefit from the Department of Health and Social

Security to the applicant from herself.

In the resumed proceedings before the Magistrates, Miss X applied for

a redefinition of the applicant's access to A, and resisted his

request for a transfer of custody. The Magistrates heard evidence

from both parents, and five other people, including a social worker,

the local priest, and a court welfare officer. They decided that the

custody of A should remain with the mother, and ordered specified

staying access on a weekly basis for the applicant, together with a

fortnight's staying access for a holiday once per year.

In their detailed statement of reasons, set out in 12 numbered

paragraphs, they recognised that A's welfare was their paramount

consideration, and evaluated the evidence before them as to what

arrangement between the applicant and Miss X would best further this

goal. They considered evidence that Miss X had signed a note on

10 February 1985, purportedly assigning A's custody to the applicant,

but concluded that this had been done as a result of continuous

pressure from the applicant and not by way of an admission that she no

longer wished to have the child living with her. The court considered

it desirable that the child should continue to form the bond of

friendship with his half sister, an elder child of Miss X's. The

Magistrates found, on the basis of the evidence before them, and the

court welfare reports, that A was a normal happy child, who was

developing well in the care of the mother, and that there was no

benefit to be obtained by moving the child from that environment.

The applicant appealed from this decision to the Divisional Court,

which appeal was rejected on 13 December 1985.

COMPLAINTS

The applicant complains that the decisions of the Magistrates' Courts

and the Divisional Court are contrary to all rules of equity.

In particular, the applicant contends that at the hearing on

16 February 1984 his complaints concerning Miss X's morals were

totally ignored and not taken into account by the court. This matter

was again ignored in the hearing of the appeal before the Divisional

Court on 13 December 1985, and the applicant contends that he was not

given a full and proper opportunity of explaining himself, nor was

there a proper enquiry into the facts of the case.

In particular the applicant also complains that in the proceedings

before the Magistrates' Court in June 1985, no, or inadequate, account

was taken of the fact that Miss X gave the child to him to look after

for a considerable period, but subsequently "snatched the child back",

causing the child distress. The applicant complains that no question

of joint custody was raised at the hearing, and that he has been

deprived of custody and of proper rights of access, by virtue of which

the child has lost out because of a lack of contact between the

applicant and the child.

The applicant considers that his rights have been violated in so far

as the British legal system has deprived him of a right to have any

real control over the welfare of his child. He considers that Miss X

showed a lack of interest and an inability to look after the moral

welfare of the child, but that this has not been taken into account in

the rulings of the courts both at first instance and on appeal. He

complains that priority seems, as a matter of course, to

have been given to the mother without any real question of the father

and his influence upon the child being taken into account. The

applicant contends that there is an inbred prejudice in the court,

which does not afford a proper and equitable hearing to the father.

THE LAW

1. The applicant complains about the decisions which have been

taken in custody proceedings as to the custody of his child, A. He

has not invoked any specific Articles of the Convention, but the

Commission finds that the substance of his complaints must be examined

first under Article 6 para. 1 (art. 6-1) of the Convention which

guarantees a fair hearing in the determination of civil rights and

obligations.

The dispute between the applicant and Miss X concerning custody of A

and access to the child, involved the determination of the private law

relations between the child, the father and the mother, which are

civil rights.

The applicant has complained that the proceedings in the present case

were unfair, that he was given an inadequate opportunity to make his

submissions, and that there was an inbuilt prejudice in the

proceedings as a whole against him as a father.

It appears that in both sets of proceedings before the Magistrates'

Court as also before the Divisional Court on appeal, the applicant

was able to be present in person. The Magistrates' Court heard

evidence at both hearings and, although the applicant alleges that

certain evidence was wrongly evaluated, he has submitted nothing to

the Commission to substantiate this allegation.

The applicant also alleges an inherent bias against fathers in custody

proceedings but this allegation is equally wholly unsubstantiated.

Finally, he complains that the possibility of joint custody of A was

not examined by the courts, but it does not appear that any of the

parties seriously contended that such a solution would be in A's best

interests.

It follows that the applicant's complaints concerning the fairness of

the proceedings are manifestly ill-founded within the meaning of

Article 27 para. 2 (art. 27-2) of the Convention.

2. The Commission has also examined the applicant's complaints

about the decisions taken concerning A and his relationship with the

child by reference to Article 8 (art. 8) of the Convention which

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 applicant was not married to Miss X and the proceedings which he

issued for the custody of A were therefore intended to regularise and

define the scope of his legal relationship with and responsibilities

towards the child. The custody proceedings thereby provided the

applicant with an opportunity which showed respect for the family

links between himself and A.

The Magistrates' Courts and the Divisional Court which examined the

questions of custody and access in this case recognised that the

guiding principle which they should apply was that of furthering the

best interests of A. To this end the Magistrates' Courts heard

substantial evidence and it is clear from their fully reasoned

decisions that they weighed the respective merits of allowing the

child's mother to retain custody or of making an order transferring

custody to the applicant. They reached the conclusion that A's best

interests were best served by staying with Miss X, both because she

offered the child a favourable home environment and because the

applicant was unable to make wholly satisfactory arrangements for

caring for the child while he was working.

The Courts then considered the question of access and, in view of the

strained relations between the applicant and Miss X, ordered specified

and defined access in favour of the applicant. This decision ensures

that the applicant's contact with the child will not be avoidably

affected by the differences between him and Miss X.

In these circumstances the Commission finds that the proceedings in

question did not give rise to any interference with the applicant's

right to respect for his family life in the sense of Article 8 para. 1

(art. 8-1) of the Convention and that this aspect of his 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

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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