Information Note on the Court’s case-law 22

September 2000

Gnahoré v. France - 40031/98

Judgment 19.9.2000 [Section III]

Article 6

Civil proceedings

Article 6-1

Access to court

Refusal of a request for legal aid due to the absence of serious grounds of appeal: no violation

Article 8

Article 8-1

Respect for family life

Placement of child in care and imposition of restrictions on the father’s right of access: no vi olation

Facts : The applicant is the father of three children. After being alerted by a hospital service to which C., the youngest child, had been admitted as an outpatient, the public prosecutor’s office made an order in January 1992 for C. to be placed in the care of the Child Welfare Service ( ASE ), as injuries which he presented could have been caused by abuse. The applicant was charged with assault and battery with intent on a minor aged less than fifteen by an ascendant. The children’s judge ordered C.’s placement w ith the ASE and prohibited all contact. On 26 May 1993 the special chamber for minors at the court of appeal nonetheless recommended that contact between the applicant and his child should be encouraged, provided the applicant remained calm. The investigat ing judge made an order dismissing the case against the applicant on the ground that there was insufficient evidence. The applicant requested that C.’s placement be reviewed in the light of the dismissal of the charges. At regular intervals the children’s judge upheld the order for C.’s placement and the suspension of the right to contact. An expert’s report ordered on the issue of contact led the special chamber of the court of appeal to defer deciding that issue and to invite the applicant to undergo ther apeutic treatment in the meantime. In October 1994, noting that the applicant had been uncooperative, the chamber upheld the child’s placement and the suspension of contact. A further application for contact was dismissed at first instance but the court of appeal granted the applicant a right to one and a half hour’s contact every fifteen days on neutral ground, pending the results of a further expert’s report. In December 1996 the applicant lodged a notice of appeal with the Court of Cassation against that decision with the registry of the court of appeal and in January 1997 applied to the legal-aid office of the Court of Cassation for legal aid. His application was rejected by the legal-aid office on the ground that although he had insufficient resources, he had no arguable ground of appeal against the impugned decision before the Court of Cassation. The applicant’s appeal under section 23 of the Law of 10 July 1991 to the First President of the Court of Cassation was dismissed on the same ground. In May 19 98 the First President of the Court of Cassation made an order declaring that the appeal had lapsed as the notice of appeal did not contain any valid ground of appeal and the applicant had not lodged a memorial setting out such a ground. The decisions conc erning C.’s placement and the suspension of contact were renewed.

Law : Article 6(1) – By Article 1196 of the New Code of Civil Procedure (“NCCP”) and as an exception to the requirements of Article 973 NCCP, the parties were exempted from the requirement of representation by a member of the Conseil d’État and Court of Cassation Bar in proceedings concerning children’s welfare. The fact that the applicant had been refused legal aid therefore meant only that he had not been entitled to the assistance of such c ounsel free of charge. It did not ipso facto prevent his pursuing his appeal to the Court of Cassation. Furthermore, proceedings in which legal representation was not mandatory were governed by special rules (Articles 983-995 NCCP) and as a result were far simpler than proceedings in which legal representation was mandatory (Articles 973-995 NCCP). As regards the ground for the refusal of legal aid, namely the lack of an arguable case, it was expressly laid down in Law no. 91-647 of 10 July 1991 and undoubt edly inspired by the concern that public funds should finance legal aid only for appellants whose appeal had reasonable prospects of success. In addition, applicants enjoyed substantive guarantees under the system set up by the French legislature, which pr otected them from arbitrariness and was based both on the composition of the legal-aid office and the availability of a right of appeal against refusals of legal aid to the First President of the Court of Cassation.

Conclusion : no violation (5 votes to 2).

Article 8 – As regards the Government’s preliminary objection, only appeals on points of law could be brought before the Court of Cassation. In the light of the reason given by the legal-aid office and the First President of the Court of Cassation for refusing the applicant’s application for legal aid, the applicant could not be accused of failing to exhaust domestic remedies by not proceeding with the appeal after the order of 8 December 1997.

As to the merits, there was no doubt that the measures in issue, namely C.’s placement and the restrictions on contact between father and son, amounted to an interference with the applicant’s right to respect for his family life. Those measures were in accordance with the law and had be en taken in order to protect C.’s interests. The interference therefore pursued the legitimate aim of protecting the rights and freedoms of others. In order to ascertain whether there was a need for the measures in a democratic society, two periods had to be distinguished: the period before and the period after the order of 26 May 1993.

As to the measures taken before the order dismissing the charge, it was sufficient to note that the order for C’s placement was made shortly after the applicant was charged with assault and battery with intent on his son and placed under judicial supervision. In the light of what was obviously the child’s overriding interest to be protected from a parent suspected of such an offence, the measure could not be called into ques tion on the basis of Article 8. That applied also to the suspension of the applicant’s right to contact and to the restrictions subsequently imposed on that right during the period under consideration.

Conclusion : no violation (unanimously).

With regard to the continuation of the child’s placement after the charge had been dismissed, the courts based their decisions on reasons – such as the father’s inability to bring up the child – which appeared relevant and their decisions reflected a concern to act in t he overriding interest of the child, a concern which had led the children’s judge not only to follow the recommendations of the experts, but also, in particular, to meet the applicant. Consequently, regard being had to their margin of appreciation, the aut horities had had reasonable cause to consider that it was necessary for the placement of the applicant’s child to continue.

Conclusion : no violation (unanimously).

As regards the continued restrictions on contact between father and son, the Court noted tha t they had been separated for more than eight years during which period contact between them had been very sporadic. Indeed, it had even declined with time to the point where rebuilding the family unit would in all likelihood now prove too upsetting for th e child. In other words, a situation that should only have been temporary had become a long-term one, thereby creating an obstacle to renewed contact between father and son. However, it had to be noted that the relevant authorities had made serious attempt s to enable the family ties to be preserved and that the failure of the measures they had taken to that end was attributable solely to the applicant’s behaviour. Admittedly, it might be felt that the authorities could – and could still – have taken other s teps and adopted other measures to facilitate the renewal of contact between father and son. However, that factor could not suffice to lead to the conclusion that there had been an infringement of the rights guaranteed by Article 8, especially as the autho rities were in principle better placed for assessing which measures should be taken, particularly because they were in direct contact with the background to the case and the people involved. The Court therefore had to conclude that the authorities had take n all the measures which could reasonably have been required of them to facilitate the family reunification.

Conclusion : no violation (5 votes to 2).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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