European Court of Human Rights

The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, reference should be made to paragraphs 8-47 of the principal judgment (ibid., pp. 10-22).

In the principal judgment, the Court therefore reserved the whole of this question; it invited (a) the applicant to submit, within the next two months, full written particulars of his claim; and (b) the Government to submit, within two months of receipt of those particulars, their written comments thereon and, in particular, to notify the Court of any agreement reached between them and the applicant (paragraphs 70-71 of the reasons and point 6 of the operative provisions, pp. 29-30).

- on 23 September 1987, memorial of the applicant;

- on 21 December 1987, memorial of the Government;

- on 21 January 1988, observations of the Delegate of the Commission.

AS TO THE LAW

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

Under this provision the applicant claimed, inter alia, compensation for non-pecuniary damage and reimbursement of costs and expenses incurred in the proceedings before the Convention institutions.

A. Costs and expenses

B. Damage

(b) The Government argued that although the alleged damage might have been the consequence of the applicant’s lack of access to A, B, C, D and E, it was not attributable to the breach of Article 6 § 1 (art. 6-1), since there was no evidence that the outcome would have been different if he had been able to have the question of his access to these children reviewed by a tribunal having jurisdiction to examine the merits of the matter. Consequently, no causal link had been demonstrated between the violation of the Convention found by the Court and any damage alleged by the applicant.

The Government further contended that, having regard to particular facts of the case which they set out in their memorial, there was no evidence that the availability of a judicial remedy on the access issue could actually have benefited the applicant in practical terms. Accordingly, he had not suffered a "loss of real opportunities", as that expression was understood in the Court’s case-law, and the finding of violation of Article 6 § 1 (art. 6-1) therefore constituted sufficient just satisfaction for the purposes of Article 50 (art. 50). If, however, the Court should take a different view on this point, then - the Government submitted in the alternative - any sum awarded to the applicant should, in all the circumstances of the case, not exceed £5,000.

(c) The Delegate of the Commission considered that it was not possible to establish with any degree of certainty whether the relevant decisions would have been different if the breach of Article 6 § 1 (art. 6-1) had not occurred. In his view, the applicant should nevertheless receive a "reasonable amount" of compensation for non-pecuniary loss, which amount should reflect the serious nature of the issues involved.

Whilst the applicant was thus the victim of a deficiency of a procedural nature, it was all the same a deficiency that was intimately connected with an interference with one of the most fundamental of rights, namely that of respect for family life.

It is true that, in its judgment of 6 October 1980, the High Court took the view that the local authority had not acted unreasonably in deciding to refuse the applicant further access to the children (see the principal judgment, p. 12, § 16). However, that decision was given in wardship proceedings, in circumstances where the High Court’s jurisdiction was limited and did not extend to the merits of the matter. The Government also stated that the applicant had never applied for access to A, B and C under the provisions introduced by the Health and Social Services and Social Security Adjudications Act 1983 (ibid., p. 21, § 44). However, those provisions would have been of doubtful utility to him: they did not enter into force until 30 January 1984, by which time he had had no access to these children for some four and a half years.

Furthermore, the different considerations involved mean, as the Court pointed out in paragraph 62 of the principal judgment, that a parent "may be able to adduce reasons warranting a continuation or restoration of access but not of his care of the child". It cannot, in the Court’s opinion, be entirely excluded that if during the currency of the care orders the applicant had been able to have the question of his access to the five children reviewed by a court on its merits, he might have obtained some degree of satisfaction, especially if he had made his application at a sufficiently early date.

To this extent he may therefore be said to have suffered some loss of real opportunities, warranting monetary compensation.

C. Miscellaneous

This, however, is a matter which falls outside the scope of the case submitted to the Court on 28 January 1986, with the result that it cannot entertain this request.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Decides to strike the case out of the list as far as the applicant’s claim for costs and expenses is concerned;

2. Holds that the United Kingdom is to pay to the applicant the sum of £5,000 (five thousand pounds) for non-pecuniary damage;

3. Rejects the remainder of the claim for just satisfaction.

Done in English and in French, and notified in writing on 9 June 1988 pursuant to Rule 54 § 2, second sub-paragraph, of the Rules of Court.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar