THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45396/99 by Helen CRAIG against the United Kingdom

The European Court of Human Rights ( Third Section ), sitting on 21 March 2000 as a Chamber composed of

Mr J.-P. Costa, President , Sir Nicolas Bratza, Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, 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 13 November 1995 and registered on 13 January 1999,

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 national living in Northern Ireland . She is represented before the Court by Messrs McClure and Company, a solicitors’ firm in Belfast . The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a social worker working with children under five years old. She also works on a voluntary basis as a classroom assistant in a local school. She is homosexual and her sexual orientation is known to her employer and to the school where she assists. The applicant has two children aged 11 and 12.

The applicant has been involved in a homosexual relationship with L since 1990. L obtained a divorce in February 1993 but the custody and care of L’s four children (born in 1978, 1980, 1984 and 1986, respectively) were the subject of High Court proceedings. In or around December 1993 L and her former husband agreed interim shared care arrangements according to which the children would spend alternative weeks with each parent.

On 10 May 1994 L and her former husband settled the High Court proceedings. L’s former husband would have custody of the children and her access to them would continue on the basis of the shared care arrangement. L also agreed that she would not permit the children to come into contact with or remain in the company of the applicant or of any other person known to L to be lesbian. The High Court made an order on the same day in the terms of this agreement. As a result of difficulties surrounding the applicant’s contact with L, the matter was brought before the High Court on 7 June 1995 when L again undertook to the Court that she would comply with the order of 10 May 1994. Following another summons issued by L’s former husband, on 25 January 1996 L undertook to the High Court that she would instruct the applicant not to call at her home at any time when she had access to the children, and she undertook not to answer or open the door if the applicant called at her house during a scheduled access visit. The High Court recorded L’s undertakings in its order of the same day and dismissed the summons. Since then L lives one week at her own address with her children and the other week with the applicant.

During the course of the custody proceedings, social work and psychologist reports were submitted to the High Court dealing, inter alia , with the applicant’s position in relation to L and her children.

The detailed report of a child and adolescent psychiatrist, Dr Gallagher, of September 1993 concluded that research showed there was no evidence that children living with lesbian mothers were adversely affected in terms of their sexual identity, personal development, peer relationships or social adjustment. He considered that there was no evidence that L’s sexual orientation posed a threat to the children or that L’s relationship with the applicant would adversely affect the children. The evidence was that cohabitation between L and the applicant, provided that relationship was good, would have a positive effect on the children. Given the acrimonious relationship between L and her former husband, the children’s need for stability and security, the difficulties L’s husband experienced with the shared care arrangements and since L was the main care giver, it was that expert’s opinion that L should be granted custody with frequent access being given to L’s former husband.

A social work report of November 1992 indicated that there was nothing to suggest that L could not provide adequate care and protection for the children. Given the parents’ acrimonious relationship and the children’s need for stability, custody was recommended in favour of L with regular access in favour of L’s husband. A further social work report of June 1993 highlighted the husband’s concern about L’s relationship with the applicant. Having considered all of the care and custody options, the social worker indicated that he was unable to assess the children’s views on their mother’s homosexuality and that there was a lack of definitive research on the possible effects on the children’s developments of being in the custody of L who was homosexual. He found it extremely difficult to make a definite recommendation, but considered that custody should be given to L, her husband’s condition as regards the children having no contact with the applicant being considered “untenable”.

Dr Harbinson , a consultant psychiatrist, did not agree with Dr Gallagher’s report of September 1993. In his report of November 1993, he considered that it was difficult to dismiss the vital importance of parents as role models for their children and the stigmatisation attached in our society to homosexuality. He considered that it would not be wise to raise the issue of L’s homosexuality with the children at that stage.

Dr Gallagher produced an addendum to his report in December 1993 pointing out that Dr Harbinson had done limited research on lesbian couples and children and had misinterpreted the research quoted. He repeated that it was not the sexual orientation of parents that was the issue but rather the quality of the parents’ relationship. He added that psychological studies had shown that where the mother (the main care giver) was living with her lesbian partner, the mother was psychologically more secure and stable and this was, in turn, beneficial for the children. He confirmed his recommendation that L have custody of the children, with her husband having regular access.

COMPLAINTS

The applicant complains under Article 8 of the Convention about the High Court orders of 10 May 1994, 7 June 1995 and 25 January 1996, submitting that they constitute a disproportionate interference with her private and family life with L. She also complains under Articles 6, 8 and 13 that she did not have the right to intervene in the custody proceedings or to issue proceedings in her own right, in support of her relationship with L. She further complains that she is obliged to disclose to any future employer the fact that her name is mentioned in court orders in proceedings involving children and that this could effect her future work with children. She also complains about a discriminatory difference in treatment in violation of Article 14 of the Convention since the orders in question do not restrict the children’s contact with all male homosexuals.

THE LAW

1. The applicant complains under Article 6, 8, 13 and 14 of the Convention about the impact on her relationship with L of the High Court orders of 10 May 1994, 7 June 1995 and of 25 January 1996, and about her inability to take part in or to take proceedings to defend that relationship.

(a) The applicant complains, in the first place, that the relevant High Court orders constituted a disproportionate interference with her private and family life with L within the meaning of Article 8 of the Convention. Article 8, in so far as relevant, reads as follows:

“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 ... for the protection of the rights and freedoms of others.”

Even assuming that the High Court orders to which the applicant refers constituted interferences with her private and family life, the Court must also examine whether these interferences were justified within the meaning of the second paragraph of Article 8, namely, whether they were “in accordance with the law”, pursued one of the “legitimate aims” enumerated in Article 8 § 2 and whether they were “necessary in a democratic society” for one or more of those legitimate aims. In this latter respect, the Court recalls that regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole and that the State enjoys a certain margin of appreciation in this respect (X, Y and Z v. the United Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, pp. 631-632, § 41).

The applicant does not dispute that the High Court orders were made pursuant to the Matrimonial Clauses ( Northern Ireland ) Order 1978 and pursued the legitimate aim of the interests of the children and their parents. As to whether the interferences were “necessary”, the Court notes the limitations imposed by the High Court on L’s contact with the applicant. However, the Court finds it significant, given that the basis of her complaint is the maintenance of her relationship with her partner, that it was that partner who agreed to these limitations on their relationship and that the impugned provision of the High Court orders in question simply repeated the terms of her partner’s agreement with her former husband in order to facilitate access to her children. In such circumstances, the Court concludes that, even assuming that the High Court orders in question constituted interferences with her private or family live, they did not constitute disproportionate interferences within the meaning of Article 8 § 2 of the Convention.

(b) The applicant also complains under Articles 6 and 8 of the Convention that she did not have the right to have her interests represented during these proceedings or to take further proceedings in relation to the interferences with her family and private life. Article 6 § 1, in so far as relevant, reads as follows:

“In the determination of his civil rights ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Even assuming, as at 1(a) above, that the applicant’s relationship with L and her children falls within the scope of the protection of private life and family life guaranteed by Article 8 of the Convention, these complaints are, in any event, inadmissible for the following reasons.

The Court can consider together the question of whether these complaints give rise to an issue as regards the State’s positive obligation to protect the right to respect for private life under Article 8 or to an issue of access to court under Article 6 (assuming Article 6 applies) because the same questions of “legitimate aim” and “proportionality” are central and decisive factors for both issues (see Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 50-51, § 67). Given the nature of the relevant orders of the High Court, the legitimate aim pursued by the exclusion from custody and care proceedings of those who have not been involved in any way with the children’s care and custody, is the rights and freedoms of the children and their parents. Moreover, the Court finds that the applicant’s inability to intervene in or to take proceedings with the purpose of supporting her relationship with L, does not disclose a violation of either Article 6 or 8 of the Convention because, as noted above, it was L herself who chose to limit their relationship in the terms outlined in the relevant High Court orders. The Court also finds it significant that L has chosen not to apply to the High Court to vary those orders since they were made despite the existence of expert opinions which would favour any such application.

(c) The applicant further complains under Article 13 of the Convention that she did not have an effective domestic remedy in relation to the alleged violations of Articles 6 and 8 of the Convention.

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that where the right claimed is of a civil character, the guarantees of Article 13 are superseded by those of Article 6 § 1 of the Convention. In the light of its reasoning at 1(b) above, no separate issue therefore arises under Article 13 in respect of this aspect of the applicant’s complaint (see, for example, no. 13135/87, Dec. 4.7.1988, D.R. 56, p. 268). Moreover, as regards the applicant’s complaints under Article 8 which the Court has considered at 1(a) and 1(b) above, and given the Court’s reasoning and findings, the Court is of the view that the applicant has not demonstrated an arguable claim of a violation of Article 8 of the Convention and, as such, she cannot claim a right to an effective domestic remedy under Article 13 of the Convention in that respect (see, for example, no. 17004/90, Dec. 19.5.1992, D.R. 73, p. 155).

(d) The applicant next complains about a discriminatory difference in treatment in violation of Article 14 of the Convention, since the restrictions in the High Court orders in question do not apply to all male homosexuals. Article 14 of the Convention reads 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.”

The Court observes that the applicant compares her position to that of all male homosexuals. Since L is a female homosexual and has an continuing relationship with the applicant, the Court does not find that the applicant and other female homosexuals can be compared and considered analogous to all male homosexuals in the particular context and, therefore, no question of a discriminatory difference in treatment within the meaning of Article 14 of the Convention arises (see, for example, Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 22, § 46).

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. Finally, the applicant complains, although she does not invoke a particular Article of the Convention, that she is obliged to disclose to any future employer the fact that her name is mentioned in court orders in proceedings involving children and that this could effect her future employment in posts involving children. However, the Court notes that the applicant is both employed and works on a voluntary basis in child care. Both her employer and the school where she works voluntarily are aware of her homosexuality. Moreover, she has not provided any evidence whatsoever of any positions for which she has applied and in respect of which she was obliged, to her detriment, to disclose the relevant court orders.

In such circumstances, the applicant cannot claim to be a victim of a violation of the Convention of which she complains within the meaning of Article 34 of the Convention. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President