BOYLE v. THE UNITED KINGDOM - 16580/90 - Chamber Judgment [1994] ECHR 9 (28 February 1994)

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

The European Court of Human Rights, sitting, in accordance withArticle 43 (art. 43) of the Convention for the Protection of HumanRights and Fundamental Freedoms ("the Convention") and the relevantprovisions of the Rules of Court, as a Chamber composed of thefollowing 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 thatdate:

_______________* Note by the Registrar : The case is numbered 15/1993/410/489. Thefirst number is the case's position on the list of cases referred tothe Court in the relevant year (second number). The last two numbersindicate the case's position on the list of cases referred to the Courtsince its creation and on the list of the corresponding originatingapplications to the Commission._______________

PROCEDURE

1. The case was referred to the Court by the European Commissionof Human Rights ("the Commission") on 7 April 1993, within thethree-month period laid down by Article 32 para. 1 and Article 47(art. 32-1, art. 47) of the Convention. It originated in anapplication (no. 16580/90) against the United Kingdom of Great Britainand 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 Kingdomrecognised the compulsory jurisdiction of the Court (Article 46)(art. 46). The object of the request was to obtain a decision as towhether the facts of the case disclosed a breach by the respondentState of its obligations under Article 8 (art. 8) of the Convention.

2. In response to the enquiry made in accordance withRule 33 para. 3 (d) of the Rules of Court, the applicant stated thathe wished to take part in the proceedings and designated the lawyer whowould represent him (Rule 30).

3. The Chamber to be constituted included ex officioSir John Freeland, the elected judge of British nationality (Article 43of the Convention) (art. 43), and Mr R. Ryssdal, the President of theCourt (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of theRegistrar, the President drew by lot the names of the other sevenmembers, 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 KingdomGovernment ("the Government"), the applicant's lawyer and the Delegateof the Commission on the organisation of the proceedings(Rules 37 para. 1 and 38).

5. Attempts to reach a friendly settlement gave rise, between12 May 1993 and 23 February 1994, to a series of letters and telephoneconversations between the Agent of the Government, the solicitor forthe applicant and the registry of the Court, which had been authorisedby the President to use its good offices for this purpose.

6. On 17 December 1993 the Government communicated to theRegistrar the terms of a settlement that had been reached with theapplicant. The solicitor for the applicant confirmed on 23 Decemberthat a settlement had been negotiated, subject only to agreement on theamount of the applicant's legal costs to be paid by the Government.The President of the Chamber thereupon prolonged sine die thetime-limits for the filing of memorials and cancelled the publichearing scheduled for 26 January 1994. Notification of final agreementwas given to the Registrar by the applicant's lawyer on 23 February1994.

The same day the Delegate of the Commission, on being consulted(Rule 49 para. 2), advised the Registrar that he considered thesettlement to be an acceptable basis for resolving the case.

7. On 24 February 1994 the Chamber decided to dispense with ahearing in the case, having satisfied itself that the conditions forthis derogation from its usual procedure had been met (Rules 26 and38).

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 ofCruelty to Children, C. was removed from the care of his mother undera Place of Safety Order on 2 February 1989 on suspicion that he hadbeen sexually abused by her. The following day M. was arrested andcharged with sexual offences. In early April 1989 the CrownProsecution Service decided not to pursue the charges against her forlack of evidence. On 26 April 1989, however, following three interimcare orders, the Juvenile Court made a full care order on behalf ofLancashire County Council ("the local authority"), finding that theallegation of sexual abuse had been made out. In evidence before theJuvenile Court the applicant was described as having been "a goodfather figure" to C.

10. The applicant made repeated requests for access to C.throughout C.'s placement in care. He was allowed one supervised visitin September 1989, but further access was refused by the localauthority as he continued to deny that sexual abuse by his sister, thechild's mother, had occurred. He had been consulted by the competentsocial services but, unlike M., had not been invited to attend any ofthe meetings or case conferences at which access to C. was discussed.

11. In July 1991 the County Court made an order freeing C. foradoption. The judge was critical of the "blinkered" approach that hadbeen adopted by the local authority and expressed grave reservationsas to the correctness of the original findings of sexual abuse.Nevertheless, he considered that adoption was in the best interests ofthe child and dispensed with the mother's consent.

12. Prior to the entry into force of the Children Act 1989 inOctober 1991 non-parental relatives such as the applicant had nopossibility of applying to court for access to a child taken intocompulsory care by a local authority. In December 1991 Mr Boyle wasgranted leave to apply to the County Court under this Act for a contactorder, but his application was refused in February 1992 following ahearing.

13. The local authority notified M. in July 1992 that theintroduction of C. to an adoptive family had been stopped. Theapplicant was informed in late November 1993 that the local authoritywas planning to reintroduce contact between him and his nephew.

PROCEEDINGS BEFORE THE COMMISSION

14. Mr Boyle lodged his application (no. 16580/90) with theCommission on 5 October 1989. He complained of the refusal by thelocal authority to allow him access to his nephew in care and of theabsence of any possibility, before the entry into force of the ChildrenAct 1989, of applying to the courts for access. He claimed that hisright to respect for family life under Article 8 (art. 8) of theConvention had thereby been infringed.

15. The Commission declared the application admissible on15 May 1992. In its report of 9 February 1993 (Article 31) (art. 31)the Commission expressed the opinion, by fourteen votes to four, thatthere had been a violation of Article 8 (art. 8). The full text of theCommission's opinion and of the dissenting opinion contained in thereport is reproduced as an annex to this judgment*.

_______________* Note by the Registrar: for practical reasons this annex will appearonly with the printed version of the judgment (volume 282-B ofSeries A of the Publications of the Court), but a copy of theCommission's report is available from the registry._______________

AS TO THE LAW

16. The Registrar was advised on 17 December 1993 by the Agent ofthe 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 on23 December 1993, 4 January and 23 February 1994 that Mr Boyle hadagreed to discontinue his action before the Court on the above terms.

17. On 23 February 1994 the Secretary to the Commission informedthe Registrar that the Delegate, who had been consulted in accordancewith Rule 49 para. 2 of the Rules of Court, considered the settlementto be an acceptable basis for resolving the case.

18. The Court takes formal note of the friendly settlement reachedby 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 underRule 55 para. 2, second sub-paragraph, of the Rules of Court on28 February 1994.

Signed: Rolv RYSSDAL President

Signed: Marc-André EISSEN Registrar

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You are here: BAILII >> Databases >> European Court of Human Rights >> <html> <head> <meta http-equiv=Content-Type content="text/html; charset=windows-1252"> <meta name=Generator content="Microsoft Word 12 (filtered)"> <style> <!-- /* Font Definitions / @font-face {font-family:"Cambria Math"; panose-1:2 4 5 3 5 4 6 3 2 4;} @font-face {font-family:"Microsoft Sans Serif"; panose-1:2 11 6 4 2 2 2 2 2 4;} / Style Definitions / p.MsoNormal, li.MsoNormal, div.MsoNormal {margin-top:0cm; margin-right:0cm; margin-bottom:10.0pt; margin-left:0cm; line-height:115%; font-size:11.0pt; font-family:"Calibri","sans-serif";} .MsoChpDefault {font-size:11.0pt;} .MsoPapDefault {margin-bottom:10.0pt; line-height:115%;} / Page Definitions / @page WordSection1 {size:612.0pt 792.0pt; margin:70.85pt 70.85pt 70.85pt 70.85pt;} div.WordSection1 {page:WordSection1;} --> </style> </head> <body lang=EN-GB style='text-justify-trim:punctuation'> URL: http://www.bailii.org/eu/cases/ECHR/1994/9.html* Cite as: 19 EHRR 179, (1995) 19 EHRR 179, [1994] 2 FCR 822, [1994] ECHR 9