Lexploria

In the case of Boyle v. the United Kingdom*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr A. Spielmann,

Mr I. Foighel,

Sir John Freeland,

Mr A.B. Baka,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

and also of Mr M.-A. Eissen, Registrar,

Having deliberated in private on 24 February 1994,

Delivers the following judgment, which was adopted on that

date:

_______________

* Note by the Registrar : The case is numbered 15/1993/410/489. The

first number is the case's position on the list of cases referred to

the Court in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the Court

since its creation and on the list of the corresponding originating

applications to the Commission.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 7 April 1993, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 16580/90) against the United Kingdom of Great Britain

and Northern Ireland lodged with the Commission under Article 25

(art. 25) by Mr Terence Boyle, a British citizen, on 5 October 1989.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby the United Kingdom

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as to

whether the facts of the case disclosed a breach by the respondent

State of its obligations under Article 8 (art. 8) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Sir John Freeland, the elected judge of British nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr F. Gölcüklü, Mr L.-E. Pettiti, Mr A. Spielmann,

Mr I. Foighel, Mr A.B. Baka, Mr M.A. Lopes Rocha and Mr L. Wildhaber

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the United Kingdom

Government ("the Government"), the applicant's lawyer and the Delegate

of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38).

5. Attempts to reach a friendly settlement gave rise, between

12 May 1993 and 23 February 1994, to a series of letters and telephone

conversations between the Agent of the Government, the solicitor for

the applicant and the registry of the Court, which had been authorised

by the President to use its good offices for this purpose.

6. On 17 December 1993 the Government communicated to the

Registrar the terms of a settlement that had been reached with the

applicant. The solicitor for the applicant confirmed on 23 December

that a settlement had been negotiated, subject only to agreement on the

amount of the applicant's legal costs to be paid by the Government.

The President of the Chamber thereupon prolonged sine die the

time-limits for the filing of memorials and cancelled the public

hearing scheduled for 26 January 1994. Notification of final agreement

was given to the Registrar by the applicant's lawyer on 23 February

1994. The same day the Delegate of the Commission, on being consulted

(Rule 49 para. 2), advised the Registrar that he considered the

settlement to be an acceptable basis for resolving the case.

7. On 24 February 1994 the Chamber decided to dispense with a

hearing in the case, having satisfied itself that the conditions for

this derogation from its usual procedure had been met (Rules 26 and

38).

AS TO THE FACTS

8. The applicant, who was born in 1938, resides in Blackburn,

Lancashire. His sister, M., gave birth to a son, C., on 5 April 1980.

Over the years the applicant, who lived very near to his sister's home,

formed a close bond with C.

9. On application by the National Society for the Prevention of

Cruelty to Children, C. was removed from the care of his mother under

a Place of Safety Order on 2 February 1989 on suspicion that he had

been sexually abused by her. The following day M. was arrested and

charged with sexual offences. In early April 1989 the Crown

Prosecution Service decided not to pursue the charges against her for

lack of evidence. On 26 April 1989, however, following three interim

care orders, the Juvenile Court made a full care order on behalf of

Lancashire County Council ("the local authority"), finding that the

allegation of sexual abuse had been made out. In evidence before the

Juvenile Court the applicant was described as having been "a good

father figure" to C.

10. The applicant made repeated requests for access to C.

throughout C.'s placement in care. He was allowed one supervised visit

in September 1989, but further access was refused by the local

authority as he continued to deny that sexual abuse by his sister, the

child's mother, had occurred. He had been consulted by the competent

social services but, unlike M., had not been invited to attend any of

the meetings or case conferences at which access to C. was discussed.

11. In July 1991 the County Court made an order freeing C. for

adoption. The judge was critical of the "blinkered" approach that had

been adopted by the local authority and expressed grave reservations

as to the correctness of the original findings of sexual abuse.

Nevertheless, he considered that adoption was in the best interests of

the child and dispensed with the mother's consent.

12. Prior to the entry into force of the Children Act 1989 in

October 1991 non-parental relatives such as the applicant had no

possibility of applying to court for access to a child taken into

compulsory care by a local authority. In December 1991 Mr Boyle was

granted leave to apply to the County Court under this Act for a contact

order, but his application was refused in February 1992 following a

hearing.

13. The local authority notified M. in July 1992 that the

introduction of C. to an adoptive family had been stopped. The

applicant was informed in late November 1993 that the local authority

was planning to reintroduce contact between him and his nephew.

PROCEEDINGS BEFORE THE COMMISSION

14. Mr Boyle lodged his application (no. 16580/90) with the

Commission on 5 October 1989. He complained of the refusal by the

local authority to allow him access to his nephew in care and of the

absence of any possibility, before the entry into force of the Children

Act 1989, of applying to the courts for access. He claimed that his

right to respect for family life under Article 8 (art. 8) of the

Convention had thereby been infringed.

15. The Commission declared the application admissible on

15 May 1992. In its report of 9 February 1993 (Article 31) (art. 31)

the Commission expressed the opinion, by fourteen votes to four, that

there had been a violation of Article 8 (art. 8). The full text of the

Commission's opinion and of the dissenting opinion contained in the

report is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 282-B of

Series A of the Publications of the Court), but a copy of the

Commission's report is available from the registry.

_______________

AS TO THE LAW

16. The Registrar was advised on 17 December 1993 by the Agent of

the Government that,

"without prejudice to the Government's position on the

admissibility and merits of the application, a friendly

settlement ha[d] been reached on the following terms:

(a) the Government will make an ex gratia payment of

£15,000 to the applicant plus his reasonable legal

costs in bringing the application;

(b) the Government note that the Children Act 1989

received Royal assent on 16 November 1989 and came

into force on 16 November 1991. Section 34(3) confers

on any person who has obtained the leave of the court

to make an application, the possibility of having the

question of contact between the child placed in local

authority care and that person determined by a court

in proceedings complying with Article 6 para. 1

(art. 6-1) of the Convention;

(c) the Government regret that, prior to the entry

into force of section 34(3) of the Children Act 1989

on 16 November 1991, the applicant had no statutory

right to apply to the court for contact with his

nephew".

The applicant's lawyer confirmed in writing on

23 December 1993, 4 January and 23 February 1994 that Mr Boyle had

agreed to discontinue his action before the Court on the above terms.

17. On 23 February 1994 the Secretary to the Commission informed

the Registrar that the Delegate, who had been consulted in accordance

with Rule 49 para. 2 of the Rules of Court, considered the settlement

to be an acceptable basis for resolving the case.

18. The Court takes formal note of the friendly settlement reached

by the Government and Mr Boyle. It discerns no reason of public policy

(ordre public) why the case should not be struck out of the list

(Rule 49 paras. 2 and 4).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing under

Rule 55 para. 2, second sub-paragraph, of the Rules of Court on

28 February 1994.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

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CASE OF BOYLE v. THE UNITED KINGDOM

CASE OF BOYLE v. THE UNITED KINGDOM

LEXI