THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35705/97 by M. L. against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 20 March 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 8 November 1996 and registered on 22 April 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1973 and living in Glasgow

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant met Ms X whilst he was still at school, and on 21 May 1992 a child was born. The child and Ms X initially stayed with the applicant and his parents, but the relationship came to an end in September 1992 when they separated. Both the applicant and Ms X applied to the Glasgow Sheriff Court for custody of their child on 22 and 23 September 1992 respectively. On 23 September 1992, the mother obtained an interim order for the delivery of the child to her, and the child lived with the mother and an older child thereafter. On 26 November 1992 the applicant was awarded interim access to the child by the Sheriff. This allowed him to visit the child on the first Saturday of each month between 1 p.m. and 3 p.m. commencing Saturday 5 December 1992. On 18 June 1993 the two sets of custody proceedings were joined. The applicant sought three continuations (a form of adjournment) during the course of these initial custody proceedings before the Sheriff.

On 21 July 1993 the Sheriff awarded custody of the child to the applicant. Ms X’s appeal to the Sheriff Principal was refused on 23 September 1993. Ms X appealed to the Court of Session on 4 October 1993. With the exception of a ten day delay in lodging the case papers and a six week extension being granted on an unopposed motion of Ms X in respect of the lodging of some further documentation, the appeal to the Court of Session was dealt with according to the relevant Rules of Court. The appeal was successful, and on 24 June 1994 custody of the child was awarded to Ms X.

The applicant appealed to the House of Lords. Under the House of Lords Practice Directions which regulated such appeals, the applicant had three months in which to lodge his appeal, or one month after the final determination of his legal aid application, whichever was the later. The applicant’s appeal was lodged on 19 June 1995.

The applicant was required by the House of Lords Practice Directions to lodge a statement and appendix consisting of the relevant case papers within six weeks of lodging his appeal. He did this on 4 October 1995. The appeal could not be set down until the appendix had been lodged.

Between October and December 1995, the Judicial Clerk of the House of Lords Judicial Office was in correspondence with the applicant’s representatives about a proposal raised by the applicant to provide the House of Lords with a report on the child’s current circumstances. The Judicial Clerk suggested that the applicant write to the Appellate Committee of the House of Lords offering to submit such a report if their Lordships wished. No response was received from the applicant.

The hearing took place before the Appellate Committee of the House of Lords on 12 June 1996. Judgment was delivered on 4 July 1996, when the appeal was dismissed.

Following the hearing of the appeal the Judicial Clerk wrote on 13 June 1996 to the applicant’s representatives at the request of a member of the Appellate Committee to establish why it took so long for the case to reach a hearing given that it involved a very young child. Again, no response was received from the applicant or his representatives.

Lord Jauncey of Tullichettle, giving the judgment of the House of Lords on 4 July 1996, found, inter alia , as follows:

"The sheriff found as a fact that apart from being subject to respiratory infections [the child] was happy, healthy and well cared for in the mother’s house. In his note he drew attention to the different social backgrounds from which the parties came. The father was, he said, comfortably middle class, while the mother had had none of the educational and social advantages which he had had. The mother’s lifestyle was not particularly stable although that was not unusual for a person of her background. However he concluded that were the mode of life of each parent much the same he would not think that there were sufficient grounds for separating the child from her mother and sister.(...)

In delivering the opinion of the [Court of Session] Lord Morison, after referring to the restrictions imposed on an Appellate Court in disturbing the conclusions of a sheriff as to the child’s best interest, continued:

‘However, in determining whether the sheriff has failed to take sufficiently into account any significant factor, it is legitimate for this court to have regard to any general practice, approach or principles which may be derived from a consideration of previous cases dealing with the custody of young children. (...)’

[It] is in our opinion quite clear, as we understood to be conceded on behalf of the respondent in the present case, that it has been and remains the practice of the courts in Scotland to recognise as an important factor which has to be fully taken into account in a dispute concerning custody between the mother and father of a very young child, that during his or her infancy the child’s need for the mother is stronger than the need for a father. This principle should not be regarded as creating any presumption in favour of the mother, nor, certainly, as a rule of law. But nonetheless there is a generally recognised belief that a mother is ordinarily better able, for whatever reason, to minister to a very young child’s needs than is a father.

It is also clear from the cases cited that this general preference in favour of the mother is substantially strengthened if preservation of the status quo also favours her case for custody. If, as in the present case, the infant has been in the mother’s care since birth and is, as the sheriff found, ‘happy, healthy and well cared for’ the correct approach is that referred to in Wilkinson at p. 212, viz. ‘it may therefore be better, especially where the mother has until the dispute arose had the child in her care, for the child to be in the mother’s custody rather than to embark on the risks inherent in the father’s fulfilling a maternal role or in the creating of a new relationship in which there will be a surrogate mother’.

The opinion at p. 850b expressed the view that in holding the advantages of the father’s background to be decisive the sheriff failed to balance these advantages against the important general considerations above referred to. It went on to point out at p. 850f that the court must take account of this omission. The opinion further criticised the sheriff for failing to have regard to the consequences of material changes which were likely to occur in the future, for example if the father were to marry or move out of his parent’s house unmarried. Having concluded that the sheriff had failed to have regard to the foregoing important matters the [Court of Session] considered that the matter was at large for their determination. They decided that it would not be in [the child]’s best interest to be removed from the care of her mother (...)

At the time of the sheriff court proof [the child] who was only 14 months old had been with her mother since birth apart from the periods of access enjoyed by the father. Her home was with her mother and half sister where she was happy, healthy and well cared for. In awarding custody to the father the sheriff was clearly much influenced by the advantages moral and particularly material which he considered would accrue to [the child] from becoming a member of the father’s family. He did not, as [the Court of Session] pointed out at p. 850c, specifically address the benefit of leaving [the child] where she was with the availability of maternal care nor did he address the situation which would arise in the long term if the father, who was then unemployed, were to obtain employment and/or leave the family home, but rather accepted that he was granting custody to the father’s family or to his mother as much as to the father. Given that the mother’s care for [the child] was not criticised the sheriff undoubtedly erred in not addressing the advantages of the status quo when considering the advantages of an upbringing in the father’s family, which would in effect involve substituting the maternal grandmother for the natural mother. It follows that the [Court of Session] were fully justified in interfering with the sheriff’s decision and in substituting therefore a decision of their own.

(...) My Lords, to summarise, the advantage to a very young child of being with its mother is a consideration which must be taken into account in deciding where lie its best interests in custody proceedings in which the mother is involved. It is neither a presumption nor a principle but rather recognition of a widely held belief based on practical experience and the workings of nature. Its importance will vary according to the age of the child and to the other circumstances of each individual case such as whether she is or is not capable of providing proper care. Circumstances may be such that it has no importance at all. Furthermore it will always yield to other competing advantages which more effectively promote the welfare of the child. However where a very young child has been with its mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantages are likely to prevail. Such is not the case."

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the length of the custody proceedings and about the fact that even though he was initially successful in those proceedings, the judge refused to give him the care and control of his daughter until the appeal of his daughter’s mother had been heard.

The applicant also alleges violations of Articles 13, 14 and 17 of the Convention.  He claims that he is being discriminated against as a male parent as there is a denial of equality for every father, married or not, in the United Kingdom.

1. Article 6 of the Convention

The applicant alleges a violation of Article 6 of the Convention by reason of the outcome and length of the proceedings.

The Court considers that it can most conveniently deal with the applicant’s complaint about the outcome of the proceedings in the context of Article 8 of the Convention. It will here consider the complaint as to the length.

Article 6 § 1 of the Convention provides, so far as relevant, as follows:

"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 ... "

A. Period to be taken into account

The parties agree and the Court finds that the proceedings in the present case began on 22 September 1992, when the applicant applied for custody of the child. They ended on 4 July 1996, when the House of Lords gave judgment in the applicant’s last appeal. They thus lasted more than 3 years and 9 months over three levels of jurisdiction.

B. Reasonableness of the length of the proceedings

The applicant complains that he suffered unreasonable delay throughout the domestic custody proceedings. He points in particular to delays encountered before the Court of Session and House of Lords, which he blames upon the domestic court system in the United Kingdom. He alleges that insufficient procedures were in place to allow expedition of the proceedings given that custody of a young child was at stake.

The Government consider that there is no indication that the domestic proceedings were delayed by reference to factors within the control of the relevant authorities. They highlight various delays caused by the applicant himself in the course of the proceedings, together with shorter delays caused by Ms X in the Court of Session. They note that at no stage during the proceedings did either party apply for expedition. They also point out that one reason for the delay in the final appeal was recorded by the Judicial Clerk to the House of Lords as having been the applicant’s legal aid application, which was considered by the Scottish Legal Aid Board between 16 September and 16 December 1994.

The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and the authorities dealing with the case (see, among other authorities, the Pélissier et Sassi v. France judgment of 25 March 1999, Reports of Judgments and Decisions 1999-II, § 67 ).

As to the complexity of the case, the Government accept that the issues before the courts in the custody proceedings were not unusually complex, particularly since the practice of the domestic courts in custody matters was reasonably well-established. The Court finds that nothing in the complexity of the proceedings can justify the periods taken to deal with the appeals in this case.

Indeed, the Court considers that what was at stake in the proceedings (namely custody of a young child) was of crucial importance to the parties and to the child itself. In short, special diligence was called for on the part of the authorities dealing with the case. But only delays caused by those authorities can form the basis of a finding of violation by the Government.

As to the applicant’s conduct, the Court notes that he sought three continuations in the course of the initial custody proceedings before the Sheriff, which lasted ten months in all. Of particular concern to the Court, however, is the period of two years and ten days which elapsed between the judgments of the Court of Session and House of Lords. More significantly therefore, the Court notes that the applicant did not present his petition of appeal to the House of Lords until nearly a year had elapsed since the Court of Session’s determination of Ms X’s appeal. The applicant has put forward a number of justifications for this delay, some of which were clearly outside his control. He draws attention to the loss of his counsel some time after September 1994 due to his appointment as Lord Advocate in Scotland, necessitating appointment of new counsel to act on his behalf. He also refers to difficulties faced in instructing a firm of solicitors in England (where the House of Lords is located) from Scotland. The Government, for their part, recall the delay in the applicant’s legal aid application, which was considered by the Scottish Legal Aid Board between 16 September and 16 December 1994. The Court further notes that the applicant delayed lodging the appendix for the appeal until 4 October 1995, whereas the relevant Practice Directions required this to be done within six weeks of the presentation of his appeal on 19 June 1995. No clear explanation of this delay has been provided. It would appear that the applicant is responsible for this period of some three and a half months.

As part of its assessment of the particular circumstances of this case, the Court must also take into account the conduct of Ms X in the custody proceedings. The Court notes that certain of the delays encountered in the Court of Session seem to have been attributable to Ms X, including a six week extension which was necessitated by the late lodging of the appendix to those proceedings. There is no indication that the authorities dealing with the case should have intervened in order to prevent these relatively short delays.

The Court also notes that at no time throughout the custody proceedings did either party request expedition. The Government state that it has always been the practice of the House of Lords Judicial Office to deal with cases on an expedited basis if it is alerted to the nature of a case in which children are involved. The applicant points out that the relevant procedures were only formally incorporated into the House of Lords Practice Directions after the conclusion of his own case. However, he does not dispute that such procedures were available in practice.

As to the conduct of the authorities dealing with the case, the Court finds no indication that the proceedings before the Sheriff Court, Sheriff Principal or Court of Session were unduly delayed by reference to matters within the control of those courts, nor that those courts showed any lack of special diligence. The Court also finds no such indication in respect of the proceedings before the House of Lords. It notes the correspondence sent by the Judicial Clerk in the course of the proceedings before that court with a view to the applicant seeking permission to report on the child’s circumstances, together with the further enquiry from that court immediately following conclusion of the proceedings asking for an explanation for the delays.

Both the applicant and Ms X do seem to have encountered delays in securing legal aid in respect of the proceedings before the House of Lords. In the applicant’s case, this delay lasted three months. However, the Court does not consider such delay to be sufficient to render the length of the proceedings as a whole unreasonable.

Accordingly, in all the circumstances of the present case, the Court considers that the custody proceedings were conducted within a reasonable time. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

2. Article 8 of the Convention

The applicant complains about the outcome of the proceedings. He complains that because of the length of the proceedings, his chances of obtaining justice were reduced. He states that even if he had won the legal argument as to "maternal preference", the judges of the Court of Session and the House of Lords would nevertheless have awarded custody to Ms X because of the status quo.

Article 8 provides, so far as relevant, as follows:

"1. Everyone has the right to respect for his ... family life ....

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 ... for the protection of the rights and freedoms of others."

In the present case, the Court is not able to consider the substance of the applicant’s complaints about the interim custody award as the applicant failed to appeal against it, and has therefore not complied with the requirement to exhaust domestic remedies laid down in Article 35 § 1 of the Convention. As to the substantive proceedings the Court accepts that the initial overturning of the custody award, which had been in the applicant’s favour, interfered with his right to respect for his family life (see the Hoffmann v. Austria judgment of 23 June 1993, Series A no. 255-C, p. 58, § 29).

An interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under Article 8 § 2 and can be regarded as “necessary in a democratic society”.

The Court first notes that the applicant does not contest the lawfulness of the interference.

Furthermore, in the Court’s view the decisions of which the applicant complained were clearly aimed at protecting the “rights and freedoms” of the child and the mother.

The applicant, in substance, contests the necessity of the interference, principally on the ground that the reasons for the overturning of the initial custody award were discriminatory.

In determining whether the interference was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of Article 8 § 2. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities proceedings (see, among other authorities, the Elsholz v. Germany judgment of 13 July 2000, [GC], no. 25735/94, ECHR 2000-VIII, § 48).

The Court recalls that a fair balance must be struck between the interests of the child and those of the parent (see, for example, the above-mentioned Elsholz v. Germany judgment, § 50) and that in doing so particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In the circumstances of this case, the interests of Ms X are also relevant in striking that balance.

In the present case the Court notes that throughout the domestic proceedings, the courts were attempting to establish what was in the best interests of the child. All courts noted that, whilst not perfect, both parents were adequate parents. The first two instances laid stress on the middle class background and support of the applicant, whilst the Court of Session and the House of Lords considered that the initial instances had given insufficient weight to the importance of maternal custody, particularly in the early years, and to the absence of reasons which could justify removing the child from the mother, where she had been since the parties separated. Further, there is no question of the courts breaking off contact between the applicant and his daughter: access was granted and enjoyed by the applicant.

Given the supervisory role of the Convention organs in the context of custody, the Court cannot find that the decisions in the present case were disproportionate to the aim of ensuring the child’s future. As a result, the Court does not consider that there has been any violation of Article 8 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3. Article 14 of the Convention taken in conjunction with Article 8

Article 14 of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

Article 14 of the Convention affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see the above-mentioned Hoffmann v. Austria judgment, p. 58, § 31). A difference in treatment is discriminatory if it "has no objective and reasonable justification", that is, if it does not pursue a "legitimate aim" or if there is not a "reasonable relationship of proportionality between the means employed and the aim sought to be realised" (see the Petrovic v. Austria judgment of 27 March 1998, Reports of Judgments and Decisions 1998-II, p. 586, § 30, with further references).

The Court accepts that the applicant and his former wife are in "similar situations" for the purpose of Article 14.

However, the Court notes that the House of Lords, in confirming the Court of Session’s award of custody to Ms X, expressly denied that there was a presumption or principle of "maternal preference" in custody awards. Rather, it made its findings on the basis that the initial courts had failed to take into account a highly important circumstance, namely the advantage to a very young child of being with its mother. Further, it underlined that this factor was only one of various competing circumstances, and that it was not overriding.

The Court considers that even if the House of Lords could be considered to have been treating fathers and mothers differently in laying more emphasis on the role of mothers in a child’s early years than on that of fathers (see, in this connection, the above mentioned Petrovic v. Austria judgment, p. 587, § 36), that different treatment is objectively and reasonably justified. The Court first notes in this respect that the whole of the custody proceedings in the present case were directed towards establishing and furthering the best interests of the child.  That aim is clearly legitimate.

As to the reasonable relationship of proportionality between the aim and the means employed, the Court notes that the biological facts of childbirth create a particularly strong link between a child and its mother at birth. The House of Lords’ judgment is a recognition of that link. The Court does not accept that an extension of that link from birth to the initial stages of parenthood - taken, as it was in the present case, with the importance for the child of maintaining the status quo - can lead it to conclude that there was no reasonable  relationship of proportionality between the aim of furthering the child’s best interests and the award of custody to the mother.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

3. Article 13 of the Convention taken in conjunction with Article 8

The applicant alleges a violation of Article 13 of the Convention on the ground that the highest domestic court, the House of Lords, has upheld discrimination against him based on his male gender in the context of the proceedings concerning the custody of his child. Article 13 of the Convention guarantees a right to an effective domestic remedy for Convention breaches.

According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A No. 131, § 52).

The Court has above found that even if there was a difference in treatment of the applicant and his former wife in the present case, that difference was compatible with Articles 8 and 14 of the Convention, and the applicant’s claims were manifestly ill-founded. For similar reasons, the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to his case. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

5. Article 5 of Protocol No. 7 to the Convention

The applicant also alleges a violation of Article 5 of Protocol No. 7 to the Convention which guarantees equality between spouses. However, the United Kingdom has not ratified Protocol No. 7 and this part of the application is incompatible ratione materiae within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

6. Article 17 of the Convention

Finally, the applicant alleges a violation of Article 17 of the Convention, which prohibits the abuse of Convention rights. However, the Court finds no indication in the present case of any matters which could give rise to issues under this provision. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously,

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President