CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 13 October 1986,   the following members being present:                 MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   G. TENEKIDES                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS              Mrs. G. H. THUNE               Sir Basil HALL               Mr. F. MARTINEZ                 Mr. H. C. KRÜGER 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 27 January 1986 by A.C. against the United Kingdom and registered on 4 March 1986 under file N° 12043/86;   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 facts as they have been submitted by the applicant, a British citizen born in 1935 and living in Manchester, who is a finance representative by profession, may be summarised as follows:   The applicant met Miss X in May 1978, and lived with her more or less continuously until 6 August 1983.   Their child, A, was born on 8 February 1981.   The applicant made maintenance payments to Miss X in respect of the child.   In August 1983 the applicant's relationship with Miss X deteriorated, and they ceased to live together.   In late 1983 the applicant applied to the Magistrates' Court in Manchester for custody of the child under the Guardianship of Minors Act 1971.   He contended that Miss X was an unsuitable person to have the custody of A, in view of her inability to care for him as a mother, her history of alcoholism, and her allegedly unsatisfactory lifestyle.   The Magistrates' Court heard evidence from the applicant, Miss X, and a number of witnesses, as to the suitability of the present arrangements for the care of A, and the applicant's request for custody.   Evidence was heard from ten persons in all, including the parties to the proceedings, a social worker and a court welfare officer.   On 16 February 1984 the Magistrates ordered that the custody of A should remain with his mother, and that the applicant should have specified access to A during the week.   In the Magistrates' statement of reasons running to 15 numbered paragraphs, they recognised that the welfare of the child was their paramount concern, and evaluated the various factors which had been brought to their attention in relation to the question as to how the child's welfare could best be furthered.   They concluded, from the evidence, that the home offered by Miss X was perfectly satisfactory, and that allegations made against her conduct, in as far as they related to the child, were unproven. They considered that the applicant's alternative proposal for custody of the child, which would have involved third persons looking after the child for considerable periods of the day, while the applicant was at work, was less desirable for the child than the current arrangements where A continued to live with his mother, with whom he had always lived.   The applicant appealed from this decision but abandoned his appeal in February 1985 when Miss X voluntarily allowed him to care for A for a period.   On 11 June 1985 the applicant applied back to the Manchester Magistrates' Court to vary the order made in February 1984, seeking to transfer custody of A to him, from Miss X.   These proceedings arose following an arrangement between the applicant and Miss X, where by Miss X handed A over to the applicant on 10 February 1985.   The child stayed with the applicant until 15 April 1985.   The applicant contended that during this period Miss X had not visited A, and had willingly transferred the child's custody to him and had signed a note to this effect.   She also transferred the entitlement to child benefit from the Department of Health and Social Security to the applicant from herself.   In the resumed proceedings before the Magistrates, Miss X applied for a redefinition of the applicant's access to A, and resisted his request for a transfer of custody.   The Magistrates heard evidence from both parents, and five other people, including a social worker, the local priest, and a court welfare officer.   They decided that the custody of A should remain with the mother, and ordered specified staying access on a weekly basis for the applicant, together with a fortnight's staying access for a holiday once per year.   In their detailed statement of reasons, set out in 12 numbered paragraphs, they recognised that A's welfare was their paramount consideration, and evaluated the evidence before them as to what arrangement between the applicant and Miss X would best further this goal.   They considered evidence that Miss X had signed a note on 10 February 1985, purportedly assigning A's custody to the applicant, but concluded that this had been done as a result of continuous pressure from the applicant and not by way of an admission that she no longer wished to have the child living with her.   The court considered it desirable that the child should continue to form the bond of friendship with his half sister, an elder child of Miss X's.   The Magistrates found, on the basis of the evidence before them, and the court welfare reports, that A was a normal happy child, who was developing well in the care of the mother, and that there was no benefit to be obtained by moving the child from that environment.   The applicant appealed from this decision to the Divisional Court, which appeal was rejected on 13 December 1985.   COMPLAINTS   The applicant complains that the decisions of the Magistrates' Courts and the Divisional Court are contrary to all rules of equity.   In particular, the applicant contends that at the hearing on 16 February 1984 his complaints concerning Miss X's morals were totally ignored and not taken into account by the court.   This matter was again ignored in the hearing of the appeal before the Divisional Court on 13 December 1985, and the applicant contends that he was not given a full and proper opportunity of explaining himself, nor was there a proper enquiry into the facts of the case.   In particular the applicant also complains that in the proceedings before the Magistrates' Court in June 1985, no, or inadequate, account was taken of the fact that Miss X gave the child to him to look after for a considerable period, but subsequently "snatched the child back", causing the child distress.   The applicant complains that no question of joint custody was raised at the hearing, and that he has been deprived of custody and of proper rights of access, by virtue of which the child has lost out because of a lack of contact between the applicant and the child.   The applicant considers that his rights have been violated in so far as the British legal system has deprived him of a right to have any real control over the welfare of his child.   He considers that Miss X showed a lack of interest and an inability to look after the moral welfare of the child, but that this has not been taken into account in the rulings of the courts both at first instance and on appeal.   He complains that priority seems, as a matter of course, to have been given to the mother without any real question of the father and his influence upon the child being taken into account.   The applicant contends that there is an inbred prejudice in the court, which does not afford a proper and equitable hearing to the father.   THE LAW   1.       The applicant complains about the decisions which have been taken in custody proceedings as to the custody of his child, A.   He has not invoked any specific Articles of the Convention, but the Commission finds that the substance of his complaints must be examined first under Article 6 para. 1 (art. 6-1) of the Convention which guarantees a fair hearing in the determination of civil rights and obligations.   The dispute between the applicant and Miss X concerning custody of A and access to the child, involved the determination of the private law relations between the child, the father and the mother, which are civil rights.   The applicant has complained that the proceedings in the present case were unfair, that he was given an inadequate opportunity to make his submissions, and that there was an inbuilt prejudice in the proceedings as a whole against him as a father.   It appears that in both sets of proceedings before the Magistrates' Court as also   before the Divisional Court on appeal, the applicant was able to be present in person.   The Magistrates' Court heard evidence at both hearings and, although the applicant alleges that certain evidence was wrongly evaluated, he has submitted nothing to the Commission to substantiate this allegation.   The applicant also alleges an inherent bias against fathers in custody proceedings but this allegation is equally wholly unsubstantiated. Finally, he complains that the possibility of joint custody of A was not examined by the courts, but it does not appear that any of the parties seriously contended that such a solution would be in A's best interests.   It follows that the applicant's complaints concerning the fairness of the proceedings are manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   2.       The Commission has also examined the applicant's complaints about the decisions taken concerning A and his relationship with the child by reference to Article 8 (art. 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."   The applicant was not married to Miss X and the proceedings which he issued for the custody of A were therefore intended to regularise and define the scope of his legal relationship with and responsibilities towards the child.   The custody proceedings thereby provided the applicant with an opportunity which showed respect for the family links between himself and A.   The Magistrates' Courts and the Divisional Court which examined the questions of custody and access in this case recognised that the guiding principle which they should apply was that of furthering the best interests of A.   To this end the Magistrates' Courts heard substantial evidence and it is clear from their fully reasoned decisions that they weighed the respective merits of allowing the child's mother to retain custody or of making an order transferring custody to the applicant.   They reached the conclusion that A's best interests were best served by staying with Miss X, both because she offered the child a favourable home environment and because the applicant was unable to make wholly satisfactory arrangements for caring for the child while he was working.   The Courts then considered the question of access and, in view of the strained relations between the applicant and Miss X, ordered specified and defined access in favour of the applicant.   This decision ensures that the applicant's contact with the child will not be avoidably affected by the differences between him and Miss X.   In these circumstances the Commission finds that the proceedings in question did not give rise to any interference with the applicant's right to respect for his family life in the sense of Article 8 para. 1 (art. 8-1) of the Convention and that this aspect of his complaint is 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   Secretary to the Commission          President of the Commission       (H. C. KRÜGER)                        (C. A. NØRGAARD)