Family law.

By David Burrows, David Burrows, BristolContact and court procedures: Convention for the Protection of Human Rights breached?In G v United Kingdom (Minors: Right to Contact) (Application No 32346/96) (The Times, 1 November 2000)The European Court of Human Rights considered procedure in domestic courts in relation to children proceedings, in particular concerning a father's right to enforce contact.Art.8 (right to family life)First the father alleged a breach of art.8.

The court recognised that art.8 applied here.

While the article was designed to protect the individual from arbitrary interference by public authorities, there might be positive obligations on the authority involved in effective respect for family life.

A balance must be struck between the competing needs of the individual and the community as a whole; and a margin of appreciation - a breadth of discretion - must be allowed to individual states.

The court had frequently stressed that the right to family life included the right of a parent to be kept in contact with his/her child (see, for example, Hokkanen v Finland (1994) 19 EHRR 139).

It was a question of whether the national authorities had done all that they reasonably could in the particular circumstances to facilitate contact.In G v UK the court noted that a primary obstacle to contact was that the mother disappeared and took the children with her.On enforcement, the court took the view that both in England and in Scotland there were effective statutory measures available to parents to enforce orders.

The court did not accept the claimant's submission that enforcement should be the responsibility of the courts once evidence was presented to them: the tradition throughout Council of Europe states was to leave enforcement of civil remedies to the claimant rather than the courts.Art.6(1) (right to a fair trial)Further, the applicant complained that he had been deprived of a right to a fair trail: first, because of delays and, secondly, because legal aid was not available to him.There was a duty on states to ensure that children cases be dealt with speedily.

However, on delay the Court of Human Rights found that the court might have acted more quickly, but in the particularly difficult circumstances of this case the time taken was within reasonable bounds.

Further, the applicant's own conduct had caused some of the delay.Legal aidOn legal aid, the court noted that the applicant's means took him outside legal aid financial eligibility.

That might not be an end of the matter: had the applicant had effective access to the courts (Airey v Ireland (1979) 2 EHRR 305).

Here the applicant had been able to pay for, or adequately to conduct, his own proceedings.

There was no breach of art.6(1) on legal aid grounds either.Citation of human rights case lawThe Court of Appeal has stressed the need for advocates to ensure that all relevant case law is available for citation if a point under Convention for the Protection of Human Rights is to be advanced (Barclays Bank plc v Ellis and anor (The Times, 24 October 2000).

If the provisions of Human Rights Act 1998 are to be relied on then advocates must have any case law relevant to the point, available for the court (and see Practice Direction (Family Proceedings: Human Rights) [2000] 1 WLR 1782, [2000]2 FLR 429 which requires full reports of the cases cited to be available to the court).