Introduction
The European Convention on Human Rights has been agreed by the United Kingdom Government, and is upheld by the European Court of Human Rights in Strasbourg. But there will be many members, and others, whose rights may have been violated by the Government. We refer primarily, and give examples from, matrimonial and family law, although there will be other areas in which men are affected.
Information is available online at European Court of Human Rights website. They have a good internal search engine to assist with finding cases similar to your own, identified by topic or by Article number.
Hardcopies of the Convention, and other documents, including case decisions etc., may be obtained from :
European Court of Human Rights
Council of Europe
670756 Strasbourg Cedex
FRANCE
tel : 00 33 88 41 20 18
fax : 00 33 88 41 27 92
00 33 88 41 27 30
You should ask for a copy of the following :
the Convention
the Rules of Court
application forms (3 copies are useful : 1 for your draft, 2 for your submission, and 3 a copy for your file) with accompanying notes
booklet on making an application.
Ask for at least one copy, preferably a few for other member's use, and for your own legal adviser whether that is a solicitor/barrister or not.
The Convention consists of a number of Articles, with additional Articles in the supplementary Protocols. The UK has ratified the Convention and Protocol No. 1 only. Listed below are those Articles which you will find of most interest.
You have to show that you have exhausted your domestic remedies. This may be taken to imply you should take your case up through the courts to the House of Lords, however if you can make argument that this would not address the violation, then you don't need to do this. Also, an on-going situation, for which no UK laws are available to remedy the violation, would also imply that you don't need to go up to the House of Lords.
You are asked to apply within 6 months of a decision by a domestic court - but note that in cases for which no UK laws are available, and in on-going situations, the 6 month limit does not apply.
The Court will ask you to write to them first, with brief information about your case. If they think that it is not obviously ill-founded, and that you are within the time limit, they can send you an Application form, which is usually supplemented with other documents. You will find a word processor invaluable, in not necessary, for this.
Don't be put off by the secretaries i.e. the administrative staff handling your case - they will try to put you off, and in fact have gone to underhand lengths to obstruct applications. You want a Judge to see your application.
Human Rights Act 1998 (HRA98)
This Act comes into force in October 2000 (having been delayed perhaps 1 or 2 years from the original schedule). The effect of this is that you may apply within the UK about certain articles in the Convention. It remains to be seen what effect the availability of this will have with regard to exhaustion of domestic remedies, and to the role of Strasbourg as a court of appeal. It would appear that you will need to address the Convention under HRA98 in the UK, otherwise you would not have exhausted your domestic remedies. We will keep you informed.
Applying to the Court of Human Rights
You are entitled to apply as an individual under Article 34. This will require you to study the Convention, decide which Articles to apply under, then complete an application form and prepare a document with your evidence and arguments.
If you get past the 'rapporteaur' stage, you can claim legal aid from Strasbourg. You won't get it in the UK, as the UK is your adversary. The Rules of Court (#91 - #96) give the regulations for this and explain that you are to complete a declaration on your income and assets, but no limits are given, simply that it is available if "the applicant has insufficient means to meet all or part of the costs entailed".
If the Court initially finds in your favour, it has the option to ask each party (yourself and the UK Government), to attempt to reach a 'friendly settlement'. This would imply that some negotiations in the UK will take place, although this may be in the form of a court hearing to look into the previous handling of the case. If this occurs, remember that you are essentially suing the UK government for human rights abuses, and that any settlement must be friendly to yourself not the government.
Most of the proceedings are done by post. They may culminate in a hearing in Strasbourg. However it is possible to complete a case without a hearing at all, and in fact Norman Scarth won a case without having to attend a hearing. Legal aid can cover the costs of attending a hearing.
The Court has 'secretaries' who are equivalent to the 'clerks of the court' in the UK. These secretaries have a brief to prevent cases reaching the judges. When they tell you that your case 'seems to have little prospect of success' or use other such statement, ignore this, and ask for it to be put forward and registered as a formal case with a case number. Be very firm with them. Norman Scarth had letters from the secretaries telling him that his case had little chance. He later won his case without even a hearing.
Article 34
You have the right to make an individual application under Article 34.
An application to the Court will need to identify those Articles you consider have been violated, together with arguments related to your case which show the violations.
You will need to make an application within 6 months of the UK court decision about which you are alleging the violations of the Convention. Some 'on-going' situations will allow an application, such as a case in which there is no UK law available to obtain a remedy to the violation.
Article 35
In addition, you will need to address Article 35, which states that you have to demonstrate that you have exhausted the domestic, i.e. UK, remedies. This can be done in two ways for residence and contact etc. cases :
go to the Court of Appeal, then the House of Lords, and quote HRA98 in the process;
show that this would serve no practical purpose using arguments similar these relevant to COSTS and CASE LAW below, or because no UK laws exist which you may use, or because of an on-going situation.
COSTS
The costs of an Appeal would be high, perhaps 10,000 to 15,000 pounds jointly to yourself and your ex-wife; also an application to the next higher tribunal i.e. the House of Lords, would be a similar amount; so the total cost of exhausting these domestic remedies may be 20,000 to 30,000 pounds.
Clearly such costs would prevent or limit the provision which yourself and your ex-wife could make for the children, that is in your joint ability to afford provision for their future physical care, education, health and legal needs, with such items as :
housing; transport; clothing, holidays; etc.;
schooling costs; books and materials to develop their interests;
other educational, cultural or simply social activities, such as visits to sports facilities, museums, friends and relatives, etc.;
medical costs;
any further legal costs, i.e. on other issues relevant to the children's upbringing;
etc., etc..
Hence the cost of an Appeal would be detrimental to the future provision which can be made for the children by yourself and your ex-wife, and could easily negate any improvement in their welfare which would have been obtained had the United Kingdom legal system correctly dealt with the case.
Therefore, the costs for legal assistance/action are detrimental to the provision which can be made for the children.
Therefore, THE OPERATION OF THE LAW IN THE UNITED KINGDOM, ESPECIALLY BECAUSE OF THE COSTS TO THE PARTIES, IS CONTRADICTORY TO THE RATIONALE WITH WHICH THE PARTIES BRING LEGAL ACTIONS, AND CONTRADICTORY TO THE SPIRIT OF THE WRITTEN LAW ABOUT THE CHILDREN'S WELFARE BEING PARAMOUNT.
Therefore that in practice, FOR THE CAUSE FOR WHICH YOU WOULD BRING AN APPEAL, THAT IS THE CHILDREN'S WELFARE, THAT THE DOMESTIC REMEDIES AVAILABLE ARE EXHAUSTED, and particularly the next higher tribunal, the Court of Appeal in London.
CASE LAW OF THE COURT OF APPEAL
The case law of the Court of Appeal (CoA) is such as to support the present custom and practice of the lower courts in the violations you are identifying.
You can quote some cases in UK case law [NB - these need to be brought up to date, and any decisions against father’s/children’s interests are potentially useful] e.g. :
G v G in All England Law Reports (1985) 2 ALL ER 225, that the Court of Appeal would uphold a County Court Judge's discretion;
only one known case exists in which joint care and control was upheld reluctantly by the Court of Appeal, i.e. J v J (1991) 2 FLR;
and this despite that it was the UK Parliament's intention that joint residence should be the norm, as shown in Law Commission Paper No. 172 and paraphrased in Parliamentary Paper 89/5, but residence applications often demonstrate that the Children Act 1989 is ignored by County Courts;
we therefore know that the Appeal Court judges have similar practices as the County Court.
The Articles in the Convention and Protocol(s)
Only the Convention and the (first) Protocol have been ratified by the UK. Write to your MP about getting the other Protocols ratified, especially Protocol 7, as Article 5 of that gives spouses equal rights during and after marriage - something we don't have in the UK.
Now consider the Articles which have been violated against you/your child in your case, and the following are possible, but not necessarily complete :
3
degrading treatment 6(1)
a fair and public hearing within a reasonable time 8(1) and 8(2)
respect for family life, and no interference by authority 12
right to marry and to found a family 13
an effective remedy will be available (in your own country) 14
discrimination on grounds of sex, race, colour, language, religion, political or other opinion 1 of Protocol No. 1
right to enjoyment of possessions 5 of Protocol No. 7
(not yet ratified by the UK)
equality of treatment of spouses during and at dissolution of marriage
And they are briefly, as follows :
Article 3
NO ONE SHALL BE SUBJECTED TO ... DEGRADING TREATMENT.
Article 6(1)
IN THE DETERMINATION OF HIS CIVIL RIGHTS AND OBLIGATIONS ... EVERYONE IS ENTITLED TO A FAIR AND PUBLIC HEARING WITHIN A REASONABLE TIME BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL. ...etc.
(IMPORTANT NOTE : this Article may relate to your children's rights as well as your own.)
See also under Article 10, for information that there was probably no reason to exclude the press and public in your case, and therefore that the provision in Article 6(1) about this does not apply. Therefore the secrecy of the hearing and of the Welfare Report has no justification, in terms of the issues identified in Article 6(1), including the interests of juveniles.
If your ex-wife has legal aid and you do not, then that is a contributory factor that there is no "equality of arms", and you can quote ECHR case law e.g. in "Ofner & Hopfinger v. Austria, Yearbook 1963, 693" :
"it is beyond doubt that, in any case, the wider and more general provisions for a fair trial contained in paragraph 1 of Article 6 embodies the notion of equality of arms".
Your children have probably had no opportunity in the United Kingdom legal process and supporting agencies to take their civil rights to a tribunal.
Article 8(1) & 8(2)
EVERYONE HAS THE RIGHT TO RESPECT FOR HIS PRIVATE AND FAMILY LIFE, HIS HOME AND CORRESPONDENCE.
(IMPORTANT NOTE : this Article may relate to your children's rights as well as your own.)
Correspondence with your children may have been restricted.
The provisions of Article 8(2) may not apply in the case :
national security : has no bearing ?
public safety : has no bearing ?
economic well-being of the country : has no bearing ?
prevention of crime or disorder : has no bearing ?
protection of health : has no bearing ?
protection of morals : this would be assisted by more respect for family life;
protection of the rights and freedoms of others : the rights and freedoms of your children may have been violated in the case as well as your own.
Almost all, if not all, authors on child care issues advocate openness and truthfulness with children.
Article 12
MEN AND WOMEN OF MARRIAGEABLE AGE HAVE THE RIGHT TO MARRY AND TO FOUND A FAMILY, ACCORDING TO THE NATIONAL LAWS GOVERNING THIS RIGHT.
What is the point of allowing this if marriage is more damaging than not marrying ?
Article 14
THE ENJOYMENT OF THE RIGHTS AND FUNDAMENTAL FREEDOMS SET FORTH IN THIS CONVENTION SHALL BE SECURED WITHOUT DISCRIMINATION ON ANY GROUND SUCH AS SEX, ETC.
Article 1 of Protocol No. 1
EVERY NATURAL OR LEGAL PERSON IS ENTITLED TO THE PEACEFUL ENJOYMENT OF HIS POSSESSIONS. NO ONE SHALL BE DEPRIVED OF HIS POSSESSIONS EXCEPT IN THE PUBLIC INTEREST AND SUBJECT TO THE CONDITIONS PROVIDED FOR BY LAW AND BY THE GENERAL PRINCIPALS OF INTERNATIONAL LAW.
THE PRECEDING PROVISIONS SHALL NOT, HOWEVER, IN ANY WAY IMPAIR THE RIGHT OF A STATE TO ENFORCE SUCH LAWS AS IT DEEMS NECESSARY TO CONTROL THE USE OF PROPERTY IN ACCORDANCE WITH THE GENERAL INTEREST OR TO SECURE THE PAYMENT OF TAXES OR OTHER CONTRIBUTIONS OR PENALTIES.
(IMPORTANT NOTE : this Article may relate to your children's rights as well as your own.)
You could describe the amount of your own, and your ex's, legal costs.
You can argue that you are faced with two possibilities :
take no further legal action, leaving the "status quo", and avoiding further costs;
take further legal action, to effect whatever you wish in the interests of "family life", but incurring costs.
In the first case, leaving the "status quo" would be accepting the damage done to your children. In the second case, costs would be incurred which will of course limit the provision which can be made in future for the children.
Therefore, you either accept a violation of Article 8(1) "respect for family life", or you are forced into a situation which involves a violation of Article 1 of Protocol (No. 1) "enjoyment of his possessions".
The same argument may apply to other legal proceedings, and the costs involved, with respect to the other Articles which you may have refereed to in your Application. The other Articles whose specified rights and freedoms you may have attempted to secure are :
Article 5 (of Protocol No. 7)
Article 6(1)
and particularly
Article 13
EVERYONE WHOSE RIGHTS AND FREEDOMS ... ARE VIOLATED ... SHALL HAVE AN EFFECTIVE REMEDY BEFORE A NATIONAL AUTHORITY ...etc.
The last Article quoted is particularly relevant, as there can be no effective remedy without Article 1 of Protocol (No.1) being violated, especially as you would bring further legal proceedings for the children's welfare, and as the costs are contradictory to the reason for which you would bring such proceedings i.e. future provision of welfare for the children.
The family assets are also removed from your children and they have had no opportunity to influence their rights and freedoms to also enjoy those same assets.
Article 2 of Protocol No. 1
NO PERSON SHALL BE DENIED THE RIGHT TO EDUCATION. IN THE EXERCISE OF ANY FUNCTIONS WHICH IT ASSUMES IN RELATION TO EDUCATION AND TO TEACHING, THE STATE SHALL RESPECT THE RIGHT OF PARENTS TO ENSURE SUCH EDUCATION AND TEACHING IN CONFORMITY WITH THEIR OWN RELIGIOUS AND PHILOSOPHICAL CONVICTIONS.
Note that this refers to YOUR convictions in these areas - and not to the convictions of any welfare officer or any judge.
Article 5 of Protocol No. 7 (not yet ratified by the UK)
SPOUSES SHALL ENJOY EQUALITY OF RIGHTS AND RESPONSIBILITIES OF A PRIVATE LAW CHARACTER BETWEEN THEM, AND IN RELATION TO THEIR CHILDREN, AS TO MARRIAGE, DURING MARRIAGE AND IN THE EVENT OF IT'S DISSOLUTION. THIS ARTICLE SHALL NOT PREVENT STATES FROM TAKING SUCH MEASURES AS ARE NECESSARY IN THE INTERESTS OF THE CHILDREN.
(Protocol No.7 has not yet been ratified by the UK, so you may only quote this as persuasive argument).
Article 13
EVERYONE WHOSE RIGHTS AND FREEDOMS ... SHALL HAVE AN EFFECTIVE REMEDY BEFORE A NATIONAL AUTHORITY ...etc.
(IMPORTANT NOTE : this Article may relate to your children's rights as well as your own.)
The evidence may be that you have not obtained an effective remedy to the situation that your own rights, and your children's interests, have not been protected.
You children, in not being able to represent themselves in a court, also have been unable to obtain a remedy to the damage caused them in the case.
Violations, evidence and arguments
You should use, among others, the following aspects of your case, and consider which are relevant to the Articles in the Convention :
solicitors and barristers who inadequately represent fathers;
welfare officers who fabricate reports;
welfare services which are inadequately monitored, and who answer to no one;
and judges who accept fabricated welfare reports, are allowed to be ignore the written law, and apply degenerate principles.
Articles to quote
It is advised that you quote only 1, 2 or at most 3 articles i.e. to make your application more ‘targeted’.
Submitting your application
It is possible to amend and replace the documents you have submitted, at any time e.g. after further UK hearings or as more information comes to light, up until the date of any hearing in Strasbourg.
Getting reasons for your decision
ECHR have given no reasons for declaring all known cases inadmissible. ECHR are OBLIGED to give reasons for any decision under their own Article 45 of the Convention, AND under Rules of Court i.e. under Rules 49(3)(b) and 75(1)(h).
It is ESSENTIAL that we get reasons, in order to 'target' future applications in terms of articles and arguments used.
Therefore it is important that you make a DEMAND FOR REASONS in your application, and also DEMAND after a decision if the reasons are not given.
Books on the Subject
There are various books, and law reports which cover human rights issues.
It's worth looking at books on the Human Rights Act 1998 for information, although John Wadham's (of Liberty) says almost nothing about matrimonial and family law.
The websites are worth visiting, the Court's having a useful search engine for case precedents :
European Court of Human Rights
European Commission of Human Rights
To discuss your case, please contact Cheltenham Group via enquiry form