Re M (Petition to European Commission of Human Rights)
| Jurisdiction | England & Wales |
| Judgment Date | 22 August 1996 |
| Court | Family Division |
JOHNSON, J
Child – wardship – Zulu child being brought up by white woman at first in South Africa and then in England – in wardship proceedings court ordering return of child to parents in South Africa – applicant proposing to petition European Court of Human Rights – whether leave of wardship court required – if leave required whether it should be granted.
A Zulu child who was born in 1986 had been looked after by a white South African woman ("the applicant") from 1987. In 1992 the applicant brought the child with her to England. She applied to adopt him. The child's parents, who lived in South Africa, objected and sought the return of the child. An originating summons in wardship was issued. When the matter came before the Judge he did not order an immediate return of the child. On appeal the Court of Appeal ordered an immediate return: see Re M (Child's Upbringing)[1996] 2 FCR 473. In April 1996 the House of Lords refused leave to appeal and in May 1996 the Court of Appeal refused to grant a stay pending an application by the applicant to the European Commission of Human Rights: see Re M (Application for Stay of Order)[1996] 3 FCR 185.
In the wardship proceedings the applicant applied for directions as to whether or not leave was required for a petition to be sent to the European Commission of Human Rights on behalf of a ward under Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms alleging violation of her rights and those of the child.
Paragraph 5 of the European Commission and Court of Human Rights (Immunities and Privileges) Order 1970 gave immunity "from suit and legal process" to persons participating in proceedings including those brought under Article 25 of the Convention.
Held – By virtue of the terms of para 5 of the 1970 Order Parliament had by clear implication abrogated the jurisdiction of the court to fetter the exercise of the right to petition under Article 25 of the Convention. The commitment of the United Kingdom Government to the Convention and its ratification and approval of the 1970 Order were matters which were plainly inconsistent with the existence of any continuing requirement that a ward should obtain the leave of the court before initiating proceedings before the Commission. In the circumstances of the present case it would be contrary to the best interests of the child for a petition to be brought on his behalf. If, however, such a petition were brought it would not require the leave of the court because any decision of the Commission would not be able to effect any change in the child's upbringing. If this opinion was wrong and leave was required, leave should be granted and in exercising that discretion the court would not regard the child's interests as being the paramount consideration but would regard the demands of the public policy as requiring leave to be given.
Statutory provisions referred to:Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 1, 3, 8, and 25.
European Commission and Court of Human Rights (Immunities and Privileges) Order 1970, paras 2 and 5.
International Organizations Act 1968, s 5.
Cases referred to in judgment:A v Liverpool City Council [1982] AC 363; [1981] 2 WLR 948; [1981] 2 All ER 395.
Guilfoyle v Home Office [1981] QB 309.
M (Child's Upbringing), Re[1996] 2 FCR 473.
S (An Infant), Re [1967] 1 WLR 396; [1967] 1 All ER 292.
Allan Levy, QC and Peter Duffy for the applicant.
Henry Setright for the natural parents.
Michael Sternberg for the guardian ad litem.
David Pannick, QC for the Attorney General.
MR JUSTICE JOHNSON.These wardship proceedings relate to P, a boy of 10. The major issue that arose was whether P should continue to live with Mrs S or should be returned to his parents. The Court of Appeal decided that he should be returned to his parents. [See [1996] 2 FCR 473.] Mrs S sought leave to appeal but this was refused by the House of Lords. She has now petitioned the European Commission of Human...
To continue reading
Request your trial