FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41519/98 by Seamus GRAEME against the United Kingdom

The European Court of Human Rights ( Fourth Section ), sitting on 9 March 2000 as a Chamber composed of

Mr M. Pellonpää, President ,

Sir Nicolas Bratza,

Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr I. Cabral Barreto, Mr V. Butkevych, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 11 December 1996 and registered on 8 June 1998,

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 deliberated, decides as follows:

THE FACTS

The applicant is a British citizen, born in 1959 and living in Wigan. He is represented before the Court by Mr Derek J. Sands, a lawyer practising in Manchester.

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

The applicant was married in November 1978 and had three children, who are currently aged 21, 14 and almost 5. The applicant and his wife separated in March 1995.

On 22 May 1996 the applicant and his wife appeared before the High Court to decide, principally, on the issue of residence and contact, although a number of other applications were considered as well. The applicant was unrepresented as he had not received legal aid until shortly before the hearing; this was due to an error in his benefits calculation. On the first day of the hearing the judge refused to grant the applicant an adjournment for the purpose of obtaining legal representation. The judge commented,

“In acting in person [the applicant] has put before the Court every possible argument that could be advanced and he has been given a latitude which I would not have given to any member of the Bar…The result I am satisfied would have been precisely the same if [the applicant] had been represented…and I am quite satisfied that precisely the same orders would have been made. As I say, it is cases and merits that matter, not advocacy.”

The court awarded residence of the children to the mother and in line with the Court Welfare Officers’ recommendations, dismissed the applicant’s contact application, but awarded indirect contact by way of cards and presents. The applicant was also barred from making any fresh applications to the court for two years without the leave of the judge pursuant to section 91(14) of the Children Act 1989. The bar was intended to impose a breathing space for the family, in which both parties would have time for reflection, and the children would be given a period of stability and peace. In particular, the judge commented,

“The aura of harassment and intimidation which he [the applicant] has created, whether deliberately or not, must be removed…He must satisfy the Court that he is capable of finding an appropriate focus for his life which I am satisfied has for the past year been taken up with litigation and the threat of litigation.”

In dismissing an application against the probation service, the judge noted,

“The whole action against the probation service and the allegations of impropriety and malfeasance which [the applicant] makes are in my judgment relevant to an assessment of his personality and his capacity to act sensitively and rationally in relation to his children’s welfare.”

In dismissing the applicant’s contact application, the judge relied, in particular, on the nature of the relationship between the applicant and the mother. The judge concluded that the reintroduction of the applicant into his daughters’ lives would be likely to have a gravely deleterious effect, both on the mother’s welfare and in turn on the welfare of the children themselves. This reasoning was based on the finding that,

“I think she [the mother] is frightened of him. I think she is worried about him. I think she genuinely feels oppressed and intimidated by him. She dreads the reintroduction of his presence into her life and into the lives of the children. I am quite satisfied that those emotions are entirely genuine…It is the underlying atmosphere of this case which, in my judgment, is of critical importance. This is not a case in which [the mother’s] hostility to contact has no rational foundation.”

The judge also relied on the fact that the two eldest daughters expressly stated that they did not want direct contact (the eldest being seventeen years old at the date of the hearing) and the youngest too young to ask (sixteen months old).

The applicant’s application for leave to appeal to the Court of Appeal on 10 December 1996 was dismissed. Further unsuccessful applications for leave to commence proceedings were made by the applicant in December 1996 and in 1997. On 16 May 1997 the High Court ordered the applicant’s eldest two daughters to be made parties to the proceedings, with the Official Solicitor appointed to act as their guardian ad litem .

COMPLAINTS

The applicant complains of violations of Article 6 § 1 because he did not receive legal aid from March 1995 to March 1996 and because he was not granted an adjournment of the hearing commencing on 22 May 1996 for the purpose of obtaining legal representation. He further complains that he had to wait over twelve months for the matter to be heard and that the section 91(14) “bar” denied his access to court for two years. Under Article 6 § 3 (d) he complains that he was unable to cross-examine witnesses whose evidence was admitted in statement form. Under Article 8 the applicant alleges that there were no findings of fact which justified a denial of contact. He complains that he was excluded from participating in his daughters’ religious upbringing by reason of the residence order in the mother’s favour under Article 2 of Protocol No. 1 and that contrary to Article 5 of Protocol No. 7 he does not enjoy equal contact rights in respect of his daughters. Under Article 12 he complains that he has been denied the opportunity to found a new family and under Article 13 he complains of no effective remedy.

THE LAW

1 . The applicant complains that he did not receive legal aid from March 1995 to March 1996 and that he was not granted an adjournment of the hearing commencing on 22 May 1996 for the purpose of obtaining legal representation. He further complains that he had to wait over twelve months for the matter to be heard and that the section 91(14) “bar” denied his access to court for two years. He complains that he was unable to cross-examine witnesses whose evidence was admitted in statement form. He invokes Article 6 of the Convention, which 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.

…

3. Everyone charged with a criminal offence has the following minimum rights:

…

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”

The applicant complains that his right of access to court was effectively denied by reason of the judge’s refusal to grant him an adjournment, with the result that he represented himself at the hearing. The Court recalls that the right of access to the courts is not absolute but may be subject to limitations (see the Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 24 § 57). Nonetheless, any limitation must not restrict or reduce the access left to the individual to such an extent that the very essence of the right is impaired (see the “Belgian Linguistic” judgment, Series A no. 6, p. 31 § 3). Furthermore, a limitation will not be compatible with Article 6 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

In its Airey v. Ireland judgment of 9 October 1979 (Series A no. 32, p. 13 § 24), the Court asked itself whether the applicant’s appearance in court without the assistance of a lawyer was effective, in the sense of whether the applicant was able to present her case properly and satisfactorily. In the present case, the judge was satisfied that the applicant was in no way disadvantaged by reason of the fact that he represented himself and observed that, if anything, he was given more latitude than any member of the Bar. No evidence has been presented to substantiate the applicant’s claim that he was prejudiced. Accordingly, the denial of an adjournment did not impede the applicant’s access to court. Furthermore, the denial of the adjournment pursued the legitimate aim of ensuring that the proceedings as a whole did not exceed a reasonable time in particular in a family law case.

The applicant further complains that the application of section 91(14) of the Children Act 1989 denied him access to court for two years. The Court recalls that limitations on access to court as regards certain categories of applicants, such as vexatious litigants, have been acknowledged as pursuing legitimate aims and as being proportionate (see no. 11559/85, H. v. the United Kingdom, Commission’s decision of 2 December 1985, Decisions and Reports vol. 45, p. 281). The Court notes that under section 91(14) of the Children Act 1989 the applicant was required to apply to the judge for “leave” to commence any fresh application for residence or contact. The applicant made two such applications in December 1996 and in 1997, but was refused leave on both occasions. The applicant was therefore subject to a filtering process before he could bring further family law applications. The judge imposed this restriction after having found that both parties needed a period of reflection without the constant threat of litigation. The Court is satisfied that in this case the restriction on the applicant’s access to court pursued a legitimate aim. The Court considers that the aim of the limitation of access in this respect – to ensure a period of reflection for both parties without the constant threat of litigation – was a legitimate exercise of the domestic court’s duty to ensure the good administration of justice. Further, given that the bar was not absolute, but merely required an application for leave to be made, the Court also considers that the limitation was proportionate to that aim.

The applicant also claims that the period of over twelve months between application and hearing exceeded a reasonable time. 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, the behaviour of the applicant and the conduct of the relevant authorities (see, among other authorities, the Zimmermann and Steiner v. Switzerland judgment of 13 July 1983, Series A no. 66, p. 11, § 24).

Given the complexity of the case and given the fact that two Court Welfare Officer’s reports were prepared, the Court does not regard the period of one year as excessive for the purposes of Article 6 § 1 (see the Katte Klitsche de la Grange v. Italy judgment of 27 October 1994, Series A no. 293- B, p. 25).

The applicant further complains by reference to Article 6 § 3 (d) that he was unable to cross-examine witnesses whose evidence was admitted in statement form. However, Article 6 § 3 (d) does not apply as the applicant was not “charged with a criminal offence”.

Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. The applicant further complains that there were no findings of fact which justified a denial of contact. He invokes Article 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.”

An interference with the right to respect for family life may be justified if it is “in accordance with the law”, and is “necessary in a democratic society” for any of the reasons set out in paragraph 2 of Article 8.

The order of 22 May 1996, which refused the applicant contact with his children and required him to apply for “leave” before commencing any further applications, clearly amounts to an interference with the applicant’s right to respect for his family life.

The interference in the present case is not claimed to conflict with the requirements that it be “in accordance with the law”. In addition, the Court finds that it pursued the legitimate aim of protecting the rights and freedoms of the children and the mother.

It remains to be considered whether this measure was “necessary in a democratic society”.

The Court must consider whether, in light of the case as a whole, the reasons adduced to justify the impugned measure were relevant and sufficient (see the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A p. 20, § 55).

The Court notes that the domestic judge heard four days of evidence from both the applicant and the mother, and also from three professional witnesses, a health visitor, a headmaster and a Court Welfare Officer. The domestic judge was satisfied that in the atmosphere of bitterness, fear and mutual recrimination, face to face contact between the applicant and the children was not a practical proposition and was not in the children’s interests, and that direct contact would have only heightened the real anxieties, fears and tensions which the daughters and the mother experienced as a result of the applicant’s conduct and attitude to the family. Accordingly, the Court considers that the judge’s reasons were sufficient to justify the said interference, which was accordingly necessary in a democratic society for the protection of the rights and freedom of others.

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 in accordance with Article 35 § 4.

3. The applicant also complains under various other Articles of the Court and its Protocols, in particular, Article 12, Article 2 of Protocol No.1, Article 7 of Protocol No. 5 and Article 13.

However, in so far as the matters complained of are within its competence, the Court finds that they do not raise any appearance of a violation of the rights and freedoms set out in the Convention and its Protocols.

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

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President