AS TO THE ADMISSIBILITY OF

Application No. 13145/87

by James BURNS

against the United Kingdom

        The European Commission of Human Rights sitting in private on

4 July 1988, the following members being present:

                MM.  C.A. NØRGAARD, President

                     S. TRECHSEL

                     E. BUSUTTIL

                     A.S. GÖZÜBÜYÜK

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     J. CAMPINOS

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                Mr.  J. RAYMOND, Deputy 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 6 June 1985

by James BURNS against the United Kingdom and registered on 17 August

1987 under file No. 13145/87;

        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 applicant is a British citizen born in 1943 and resident

in London.  The facts as submitted by the applicant may be summarised

as follows.

        The applicant married his second wife on 8 April 1975.  Two

children to the marriage were born, a daughter W. on 13 June 1976 and

a son T. on 30 December 1979.  The applicant's wife's twin sister came

to live at the applicant's home shortly after the marriage and she

slept in the same bedroom as the applicant and his wife.  On

19 January 1977 she also gave birth to a daughter C., of whom the

applicant was the father.  The situation in the home broke down in or

about 1980, when the applicant's wife and her sister left with their

children to live with their parents.  Following his wife's refusal of

access to their two children, the applicant took the two children W.

and T. to live with him in London on 22 July 1980.  The applicant's

wife obtained a court order on 23 July 1980 for return of the children

and an injunction restraining the applicant from molesting his wife

and her sister or going to where they lived.  On 13 August 1980, the

applicant applied to the County Court for access.  On 20 August 1980,

he was granted access, to be supervised by a supervising officer.  The

access however never took place and the applicant complains this was

as a result of the attitude of the supervising officer.  On

11 September 1980 the applicant paid a visit to his wife and her

sister.  Following the visit, the applicant was arrested by the police

on a charge of rape brought against him by his wife's sister.  The

applicant was tried for rape in June 1981 and acquitted.  Access had

meanwhile been withdrawn by the Court on 9 December 1980 pending the

outcome of the criminal charges.  The applicant was later charged with

assaulting his wife and his mother-in-law when he went to his wife's

home in breach of an injunction.  He was sentenced to 12 months

imprisonment on 16 July 1981.

        The applicant made his daughter by his ex-wife's sister a ward

of court in October 1981 but was unsuccessful in obtaining access to

either this daughter or to his children by his ex-wife.  On 5 June

1981, the High Court had ordered that the applicant should have no

access to the three children until further order.  This was confirmed

by the Court on 11 November 1981, when the Court also attached a power

of arrest to the order in the eventuality that the applicant attempt

to disobey.  On 19 November 1981, the applicant's wife was granted a

decree absolute of divorce.  The question of access was considered

again by the Court on 9 July 1982 but again refused.

        Frustrated by events and by the handling of his case by his

legal advisers the applicant went to his ex-wife's house on 19 December

1982 with three other men and took his three children away.  The

applicant was arrested the next day and charged with kidnapping, two

offences of childstealing contrary to Section 56 of the Offences

against the Person Act 1861 and two offences of taking an unmarried

girl away from their guardian without lawful authority contrary to

Section 20 of the Sexual Offences Act 1956.  He was also charged with

assault and criminal damage.  The applicant was detained on remand

until his trial.  The applicant protested to the various magistrates

courts before which he appeared that he could not lawfully be charged

with childstealing.  He petitioned the Home Secretary to the same

effect but with no success.  His trial began in October 1983.  The

judge quashed the charge of kidnapping and the two charges of

childstealing, parents being exempted by statute from prosecution for

the latter offence.  The prosecution substituted a charge of

conspiracy to steal children, which was not subject to that exemption.

After a six day trial the applicant was acquitted on 10 October 1983

of the assault charge but was found guilty of criminal damage and of

conspiracy to steal children.  The jury was discharged from giving a

verdict on the other charges under the Sexual Offences Act 1956.  The

applicant was sentenced to 2 1/2 years imprisonment.

        The applicant appealed against conviction and sentence.  He

argued inter alia that it was either not possible or oppressive to

convict a father of conspiracy to commit an offence for which he was

exempt from prosecution.  On 6 February 1984, his appeal against

conviction for conspiracy was dismissed but his appeal against

sentence upheld.  The Court of Appeal substituted a lesser sentence,

with the effect that the applicant was released immediately.  They

declined to certify a point of law of public importance for the

purpose of appeal to the House of Lords.

        Following the House of Lord's ruling in R v.  Daly, a case

which also concerned charges against a father for kidnapping his own

children, the applicant attempted to lodge a second appeal.  This was

dismissed on 10 October 1985, the Court stating that it had no power

to change its previous decision.

        Following his release from prison, the applicant applied to

the High Court requesting access to the children W., T. and C.  The

applicant had resumed care of children of his previous marriage and

considered that he had started afresh and was able to demonstrate a

stable home background.  On 3 July 1984, the Registrar adjourned the

matter pending the outcome of the applicant's application for legal

aid against the applicant's wishes.  Following the grant of legal aid,

there were further proceedings before the Registrar on 17 December

1984 but the matter was again adjourned, in order for the parties to

file affidavits and for the court welfare officer to file a report on

the question of access to the children.  The case was set down for

further directions following a summons issued by the applicant on 26

June 1985, when the Court ordered that a date for hearing be fixed.

The applicant had also applied to the Registrar to subpoena 9

witnesses to appear at the hearing.  The Registrar refused to grant 5

of the subpoenas, which concerned several police officers, a

journalist, an employee of the B.B.C. and a paediatrician.  The

journalist however did attend the hearing and the paediatrician

submitted a report in writing.

        After what the applicant describes as wilful delays on the

part of the solicitors on both sides, the hearing took place on 12-13

November 1985 before the High Court.  The judge after hearing the

evidence however refused the applicant's application for access.  In

his judgment, the judge detailed the past history of the applicant's

behaviour, noting that the applicant had served a prison sentence for

assault on his ex-wife and her mother, and that he had also served

three months in prison for threatening to kill the children by his

first marriage.  He found that the children were now well-settled with

their mothers and showed no interest in their father: T. had no memory

of the applicant and W.'s and C.'s memories were of an unhappy home

and of the snatching, which had been upsetting to them.  The judge

stated that, in light of the past history, the applicant's ex-wife and

her sister regarded the applicant with great anxiety and that the

applicant would introduce rancour into their lives.  He concluded that

access would inevitably disturb and unsettle the children and that in

view of the applicant's behaviour it was not surprising that access

had been refused.

        The applicant reapplied to the Court on 17 July 1986.  The

judge reviewed the previous decision and found that none of the

circumstances of the situation had since changed.  He found that the

evidence produced by the applicant to indicate that previous evidence

before the Court had been inaccurate (e.g. that while his ex-wife's

sister had stated that the applicant had kicked her mother several

times, the mother had herself stated that it was only once) did not

affect the real issue before the Court.  The judge found that access

would only disrupt the children's lives and upset the security of

their homes and accordingly dismissed the application.  The applicant

appealed to the Court of Appeal but his appeal was dismissed on

3 November 1986.

COMPLAINTS

1.      The applicant complains of his arrest on 20 December 1982,

alleging that the police acted without a judge's warrant or court

order.  He complains that he was held on remand and refused bail on

unjustifiable charges.  The applicant invokes Article 5 para. 1 (Art. 5-1) and

Article 5 para. 4 (Art. 5-4) of the Convention.

2.      The applicant complains of the failure of the police to

notify him of the proper charges against him at the time of his arrest

and of not being informed of the conspiracy charge until ten months

later.  He invokes Article 5 para. 2 (Art. 5-2) of the Convention.  He also

complains of being charged and convicted of conspiracy to commit an offence to

which he had a statutory exemption from prosecution.  He invokes Article 7

para. 1 (Art. 7-1) of the Convention in this respect.  He further complains the

decision of the Court of Appeal upholding his conviction was wrong in law.  He

alleges the Court paid too much attention to his criminal record.  He invokes

Article 6 para. 1 (Art. 6-1) in this context.

3.      The applicant also complains of being refused access to his

children by the courts and of the failure of court officials to

enforce the order of access granted on 20 August 1980.

4.      Lastly, the applicant complains in relation to the access

proceedings of being refused subpoenas for witnesses to appear and

that he was thus unable to defend himself against the accusations of

his wife and her sister.  He invokes Article 6 para. 1 (Art. 6-1) and Article 6

para. 3 (d) (Art. 6-3-d) of the Convention in this respect.  He also complains

that his ex-wife and sister-in-law gave perjured evidence in the court

proceedings and complains that the courts and the Director of Public

Prosecutions (D.P.P.) have failed to take any action against them, either for

contempt of court or perjury contrary to Article 6 (Art. 6) of the Convention.

He complains further of the delay in the proceedings which he brought to apply

for access on his release from prison, and of refusals of legal aid.  The

applicant also invokes Article 14 (Art. 14) of the Convention, alleging that

courts refuse to believe or listen to the evidence of fathers in child access

proceedings, whereas they accept the unsupported evidence of mothers.

THE LAW

1.      The applicant has complained that he was arrested without

proper authority and held on remand on unjustifiable charges.  He

invokes Article 5 paras. 1 and 4 (Art. 5-1, Art. 5-4) of the Convention.

        However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the Convention,

it may only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

        In the present case the applicant failed to institute

proceedings alleging false imprisonment or apply for habeas corpus

to determine the legality of his detention.  The applicant has,

therefore, not exhausted the remedies available to him under the

United Kingdom law.  Moreover, an examination of the case, as it has

been submitted, does not disclose the existence of any special

circumstances which might have absolved the applicant, according to

the generally recognised rules of international law, from exhausting

the domestic remedies at his disposal.

        It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2.      The applicant also complains, in the context of the criminal

proceedings brought against him, that he was not notified at the time

of his arrest of the conspiracy charge, that he was charged and

convicted of conspiracy to commit an offence in regard to which he had

a statutory exemption and that the Court of Appeal acted wrongly in

dismissing his appeal.  He complains of a violation of Article 5 para. 2

Art. 5-2) and of Articles 6 and 7 (Art. 6, Art. 7) of the Convention.

        However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision as Article 26 (Art. 26) of the Convention provides

that the Commission "may only deal with the matter ... within a period

of six months from the date on which the final decision was taken".

According to the Commission's constant jurisprudence the "final

decision" within the meaning of Article 26 (Art. 26) refers solely to the final

decision involved in the exhaustion of all domestic remedies according to the

generally recognised rules of international law.  In particular, only a remedy

which is "effective and sufficient" can be considered for this purpose (see

e.g.  No. 918/60, Dec. 18.9.61, Collection 7, pp. 108, 110 and No. 654/59, Dec.

3.6.60, Yearbook 4, pp. 277, 283).

        The Commission finds that, in the present case, the

applicant's application for a rehearing of his appeal was not an

effective remedy under the generally recognised rules of international

law.  The Commission recalls that in dismissing this application, the

Court of Appeal stated that it had no power to change its previous

decision.  Consequently, the decision regarding this petition cannot

be taken into consideration in determining the date of the final

decision for the purpose of applying the six months' time-limit laid

down in Article 26 (Art. 26).  The final decision regarding the applicant's

conviction is accordingly the decision of the Court of Appeal which

was given on 6 February 1984, whereas the present application was

submitted to the Commission on 6 June 1985, that is more than six

months after the date of this decision.  Furthermore, an examination

of the case does not disclose the existence of any special

circumstances which might have interrupted or suspended the running of

that period.

        It follows that this part of the application has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3.      The applicant complains of being refused access to his

children by the courts and of the failure of court officials to

enforce the order of access granted on 20 August 1980.

        Article 8 (Art. 8) of the Convention 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 Commission notes that the applicant was refused access to

his three children on a number of occasions.  Insofar as these

refusals occurred more than six months before the introduction of this

application on 6 June 1985 and insofar as the applicant complains of

the failure to implement the access order of 20 August 1980 the

applicant has again failed to observe the six months period provided for

in Article 26 (Art. 26) and these complaints must be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

        The applicant however applied before the High Court for access

to his children on 13 November 1985 and was refused.  A renewed

application was refused on 17 July 1986 and his appeal against this

refusal dismissed on 3 November 1986.  The Commission must therefore

consider whether these decisions violate the applicant's right to

respect for his family life protected by Article 8 (Art. 8) of the Convention.

        According to the case-law of the Commission and the Court

the mutual enjoyment by parent and child of each other's company

constitutes a fundamental element of family life.  The termination or

refusal of access to a child normally amounts to an interference with

the right to respect for family life protected by Article 8 para. 1 (Art. 8-1)

of the Convention (see e.g.  Eur.  Court H.R., W v. the United Kingdom judgment

of 8 July 1987, Series A no. 121-A, p. 27, para. 59 and W v. the United

Kingdom, Comm.  Report 15.10.85, para. 99, Eur.  Court H.R., Series A no.

121-A, p. 45).

        The Commission considers that, in the present case, the

decisions to refuse the applicant access to his children constitute an

interference with his right under Article 8 para. 1 (Art. 8-1) of the

Convention.

        It must therefore be examined whether this interference is

justified under the second paragraph of Article 8 (Art. 8) of the Convention.

        The Commission notes that the decisions of the courts were

taken in the context of the wardship juridiction and were therefore in

accordance with the law.  The Commission further finds that the

decisions were taken in the interest of the three children and

therefore pursued the legitimate aims of "the protection of health and

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

        As regards the necessity of the interference the Commission

recalls that the courts had found in view of the past history of the

applicant's often violent behaviour that the children had only unhappy

memories of the applicant, in particular in relation to the snatching

and that access would only disrupt their lives and upset the security

of their home.  Having examined the judgments of the English courts

the Commission considers that there were sufficient reasons for the

conclusion that it was necessary to refuse the applicant access to his

children.  The Commission finds, therefore, that the decisions to

refuse access were "necessary in a democratic society" within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

        It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4.      The applicant also complains of a number of matters concerning

the access proceedings heard before the High Court.  He complains of

being refused subpoenas to compel witnesses to appear, of the delays

in the proceedings and of refusals of legal aid.  He also complains

that his ex-wife and her sister gave perjured evidence, in respect of

which the courts and the D.P.P. refused to take any action, and that

in cases concerning children courts discriminate against fathers in

preferring the evidence given by mothers.  He invokes Article 6 paras.

1 and 3 (d) (Art. 6-1, Art. 6-3-d) and Article 14 (Art. 14) of the Convention.

        a) Insofar as the applicant complains that no prosecution for

perjury proceedings for contempt of court have been brought against

his ex-wife and her sister, the Commission recalls that the right

under Article 6 para. 1 (Art. 6-1) to have a criminal charge determined is only

a right for the accused and not a right for the victim of the alleged criminal

offence or for anyone who makes a charge against another. Accordingly the

applicant has no right under Article 6 para. 1 (Art. 6-1) of the Convention to

have criminal proceedings instituted against his ex-wife or her sister (see

e.g.  No. 7116/75, Dec. 4.10.76, D.R. 7 p. 91).  It follows that this complaint

is incompatible ratione materiae with the provisions of the Convention within

the meaning of Article 27 para. 2 (Art. 27-2).

        b) Insofar as the applicant complains of refusals of legal aid

to pursue proceedings for access, the Commission recalls that no right

to free legal aid in civil proceedings is as such included among the

rights and freedoms guaranteed under the Convention, although denial

of legal aid could in certain circumstances amount to a failure to

ensure a fair hearing under Article 6 para. 1 (Art. 6-1) of the Convention

(e.g. Eur.  Court H.R., Airey judgment of 9 October 1979, Series A no. 32). The

Commission finds no evidence in the present case however to suggest that any

refusal of legal aid effectively prevented the applicant from obtaining access

to court or deprived him of a fair hearing.  It notes in this context that in

1984 the applicant was granted legal aid for the purpose of applying for

access.  It follows that this complaint is manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

        c) The applicant has also complained of the delay in the

proceedings which he instituted in the High Court to apply for access

to his children on his release from prison.

        Article 6 para. 1 (Art. 6-1) of the Convention provides, inter alia,

that:

        "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...."

        The Commission must first decide whether the proceedings in

question can be said to have concerned the applicant's civil rights.

The Commission recalls that the applicant was applying to the High

Court in its wardship jurisdiction for a restoration of access to his

children.  The case-law of the Commission and the Court shows that

proceedings which determine a parental right of access fall within the

scope of Article 6 para. 1 (Art. 6-1) of the Convention (see e.g.  Eur.  Court

H.R., W v. the United Kingdom judgment of 8 July 1987, Series A

no. 121-A, pp. 32-35, paras. 72-79).  The Commission therefore finds

that Article 6 para. 1 (Art. 6-1) was applicable in the proceedings at issue.

        The constant case-law of the Convention's organs establishes

that the reasonableness of delay in civil proceedings is to be

assessed according to the particular circumstances and having regard,

notably, to the conduct of the applicant and the competent

authorities, the complexity of the case, what is at stake for the

applicant in the proceedings and the period of delay itself (see e.g.

Eur.  Court H.R., Buchholz judgment of 6 May 1981, Series A no. 42).

        The period of delay complained of in the present case follows

the institution of proceedings by the applicant on a date unspecified

following his release from prison in February 1984.  It appears that

the matter first came before the Registrar of the High Court on 3 July

1984, when it was adjourned against the wishes of the applicant

pending the outcome of the applicant's legal aid application.

Following the grant of legal aid to the applicant, the matter again

came before the Registrar on 17 December 1984 when he ordered the

parties to file affidavits and the court welfare officer to prepare a

report concerning the question of access to the children.  On 26 June

1985 on application by the applicant, the Registrar ordered the matter

to be set down for a hearing which finally took place on 12-13 November

1985.  It accordingly appears that at least 16 months elapsed between

the institution of proceedings and the hearing of the applicant's

application for access.

        The Commission notes that the applicant was concerned to deal

with the proceedings as speedily as possible and that it was following

his summons that the court ordered the matter to be set down for trial.

It further notes that the applicant himself attributes part of blame

of the length of the proceedings to wilful delay on the part of both

his own and his ex-wife's solicitors.

        With regard to the complexity of the proceedings, the

Commission notes that the application for access involved the

applicant and his ex-wife and her sister as parties.  While it does

not appear that there was a legally complex issue to be determined,

the Commission finds a certain degree of factual complexity inherent

in the case, which involved a long and complicated history of conflict

between the parties.  The Commission notes in this respect that the

Court found it necessary to adjourn for evidence in the way of

affidavits and a court welfare report to be filed, and that this

attributed to part of the delay complained of by the applicant.

        Moreover, the proceedings at issue related to a request of the

applicant for access to children aged approximately 7 1/2, 7 and 4, on

his release from prison.  In proceedings concerning access to and

custody of children, the age of children and the passage of time are

particularly relevant, since procedural delay may result in a de facto

determination of the question before the hearing before the Court

takes place (see e.g.  Eur.  Court H.R., H v. the United Kingdom

judgment of 8 July 1987, Series A no. 120).  The Commission notes

however in the present case that the children were still living with

their mothers and were not, as in H v. the United Kingdom (loc. cit.),

in the process of placement and bonding with prospective adopters.

Furthermore, there is no indication that the passage of time involved

in the proceedings effected the decision of the Court, which examined

the application thoroughly on its merits.  It does not therefore

appear that the length of proceedings prejudiced the applicant in the

way found in H v. the United Kingdom judgment (loc. cit.).  The

Commission also recalls that access had been refused to the applicant

on four occasions before he served his prison sentence for conspiracy

to steal children.

        Having examined the particular circumstances of the present

case the Commission finds that the length of the proceedings

complained of did not exceed what can be regarded as "reasonable"

of the Convention.

        d) Finally, the Commission has examined the applicant's

remaining complaints concerning Article 6 paras. 1 and 3 (d)

(Art. 6-1, Art. 6-3-d) and Article 14 (Art. 14) of the Convention, as

they have been submitted by him.

However, the Commission finds that they do not disclose any appearance

of a violation of the said provisions.  It follows that this part of

the application is also 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.

Deputy Secretary to the Commission        President of the Commission

           (J. RAYMOND)                         (C.A. NØRGAARD)