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 8-53 of the principal judgment (ibid., pp. 10-25).

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 87-88 of the reasons and point 6 of the operative provisions, pp. 37 and 38).

- on 7 October 1987, memorial of the applicant, which was later supplemented by certain additional submissions;

- on 21 December 1987 and 5 February 1988, respectively, memorial of the Government and their observations on the applicant’s additional submissions;

- 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 local authority decisions in which the Court had found the applicant to have been insufficiently involved and of his lack of access to S, it was not attributable to the breaches of Articles 6 § 1 and 8 (art. 6-1, art. 8), since there was no evidence that the outcome would have been different if he had been more closely involved or if he had been able to have the question of his access to this child reviewed by a tribunal having jurisdiction to examine the merits of the matter. Consequently, no causal link had been demonstrated between the violations 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 a closer involvement of the applicant in the local authority’s decision-making process or the availability of a judicial remedy on the access issue could actually have benefited him 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 findings of violation of Articles 6 § 1 and 8 (art. 6-1, art. 8) 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 breaches of Articles 6 § 1 and 8 (art. 6-1, art. 8) 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 deficiencies of a procedural nature, they were all the same deficiencies that were intimately connected with an interference with one of the most fundamental of rights, namely that of respect for family life.

It is true that, having regard to the family situation obtaining at the time, it appears somewhat unlikely that even with closer involvement on the part of the applicant the local authority’s decisions of January or February 1980 and April 1980 would have been any different (see the principal judgment, pp. 12-13, §§ 14-16).

As regards the wardship proceedings instituted in January 1981, it does not seem impossible that they could have led to a different result if they had been concluded earlier than October 1981, that is at a time when the process of "bonding" between S and the foster parents with whom he had been placed in May 1980 was less advanced (ibid., pp. 13-14, §§ 17-21).

As for the possible value to the applicant of a judicial remedy on the merits of the access issue, it is true that the High Court (with the subsequent approval of the Court of Appeal) refused access to the applicant and his wife, to avoid encouraging them in attempts to seek S’s return (ibid., p. 14, § 20). However, that decision was given in June 1981, by which time the child had been with his foster parents for more than a year. Furthermore, the different considerations involved mean, as the Court pointed out in paragraph 81 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 excluded that if during the currency of the parental rights resolution the applicant had been able to have the question of his access to S reviewed by a court on its merits, he might have done so at a date earlier than that on which he actually instituted proceedings to challenge the resolution (ibid., p. 13, § 18). And, as the Court also observed in paragraph 81 of the principal judgment, by taking such a course the applicant "might have ... changed the whole future complexion of his relationship with S".

In these respects he may therefore be said to have suffered some loss of real opportunities as well as mental anguish and distress, warranting monetary compensation.

None of the above-mentioned factors lends itself to precise quantification. Making an assessment on an equitable basis, as is required by Article 50 (art. 50), the Court awards the applicant £12,000 for damage sustained.

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.

The Court is, however, not empowered under the Convention to make orders of this kind (see, inter alia, the Gillow judgment of 14 September 1987, Series A no. 124-C, p. 26, § 9).

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 £12,000 (twelve 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

A declaration by Mr. De Meyer is annexed to this judgment.

R. R.

M.-A. E.

DECLARATION BY JUDGE DE MEYER