THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15666/02 
by Lyndon Patrick BERCHY alias Sean DURHAM 
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 2 December 2004 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr C. Bîrsan
 Mrs M. Tsatsa-Nikolovska
 Ms R. Jaeger
 Mr E. Myjer, 
 Mr David Thór Björgvinsson, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 3 April 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Lyndon Patrick Berchy alias Sean Durham, states that he is an Indian national, born in 1968. He currently lives in Edam.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant entered the Netherlands in November 1992 holding an Australian passport in the name of Sean Anthony Kieran Durham, born on 13 July 1970. On 20 September 1993 and under that identity he married Ms B., a Dutch national and, on 23 November 1993, was granted a Netherlands residence permit (verblijfsvergunning) on the basis of this marriage. The applicant and Ms B. had two sons, who were born in 1993 and 1995, respectively.

In December 1995, Ms B. started divorce proceedings and, on 29 November 1996, the Regional Court (arrondissementsrechtbank) of 's-Hertogenbosch pronounced the divorce and awarded the care and custody of their two sons to Ms B. The applicant was granted access to the two children every second weekend on the understanding that he would collect and return the two children. Given the applicant's limited financial means, the Regional Court rejected the request by Ms B. to order the applicant to pay maintenance.

As his residence permit had been granted on the basis of his marriage, the applicant requested in December 1996 a residence permit in order to maintain family life with his two sons. This request was granted on 2 February 1998.

On 9 May 1998, Ms B. informed the applicant that, given their recurring problems about the manner in which the applicant exercised his access rights and his threatening attitude towards her, he could no longer have access to his children. As from that date she denied the applicant access to them.

In response and on an unspecified date, the applicant took summary civil proceedings (kort geding) against Ms B. before the Zutphen Regional Court, seeking an order that Ms B. comply with the access arrangements. In an interim decision of 17 August 1998, the President of the Zutphen Regional Court found in the applicant's favour and ordered Ms B. to comply with the access arrangements fixed on 29 November 1996. The President set a penalty of 250 Netherlands guilders (“NLG”) [113.45 euros] for each incident of non-compliance, and limited the validity of his decision until 2 November 1998. In a further decision of 9 September 1998, the President of the Zutphen Regional Court ordered that the decision of 17 August 1998 be enforced with immediate effect (uitvoerbaar bij voorraad).

On 26 August 1998, Ms B. filed an appeal with the Arnhem Court of Appeal (gerechtshof). The applicant filed a cross-appeal (incidenteel beroep) challenging the limited validity in time of the decision and seeking a higher penalty for non-compliance.

On 4 September 1998, Ms B. took proceedings before the 's-Hertogenbosch Regional Court requesting the termination of the applicant's access rights in respect of the two children. On 13 October 1998, the applicant responding and requested, primarily, that he instead of Ms B. be entrusted with the care and custody of the two children or, in the alternative, that an access and information arrangement be determined.

On 9 November 1998, the applicant applied for an extension of his residence permit. He further applied for a permanent residence permit (vestigingsvergunning).

On 8 December 1998, the Arnhem Court of Appeal rejected the appeal filed by Ms B. against the ruling of 17 August 1998 for lack of legal interest as the impugned order had expired in the meantime, and rejected as ill-founded the applicant's cross-appeal. In its consideration of the applicant's cross-appeal, the Court of Appeal noted in particular that the applicant had not disputed Ms B.'s claim that she had filed criminal complaints with the police against the applicant for having threatened her in February and May 1998, and for having assaulted her in August 1998. Nor did he dispute Ms B.'s claim that he had left obscene messages on her voicemail or the ensuing bad communication between them. It further noted that the applicant had also not disputed the finding of the President of the Regional Court that the two children, when collected or brought in the context of the access arrangement, regularly witnessed serious disputes between their parents. It finally noted that proceedings concerning a request for a change in the existing access arrangement were pending before the Regional Court. It considered that these proceedings on the merits were more appropriate than summary proceedings for examining all relevant facts and circumstances.

Although it was possible to file a subsequent appeal in cassation with the Supreme Court (Hoge Raad) against this ruling, neither the applicant nor Ms B. did so.

After a hearing held on 2 December 1998 on the request filed by Ms B. on 4 September 1998, the 's-Hertogenbosch Regional Court ordered the Child Care and Protection Board (Raad voor de Kinderbescherming) in Eindhoven to conduct an investigation into the desirability of the change in the access arrangements sought by Ms B. and the possibilities for an access arrangement. It adjourned the further proceedings pending the outcome of this investigation.

As Ms B. moved to an address unknown to the applicant in the Arnhem area in January 1999, the investigation was transferred to the Child Care and Protection Board in Arnhem. On 12 and 13 April, 10 May, 22 June, 23 and 24 August 1999, meetings took place between the Child Care and Protection Board and the applicant and/or Ms B. On 10 May 1999, an official of the Child Care and Protection Board also met with the two children.

On 10 June 1999, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant's request of 9 November 1998 to prolong his residence permit as it had appeared from information provided by the Australian authorities that the passport held by the applicant had been declared void on 15 January 1993 for having been obtained in a fraudulent manner by the holder, who moreover was not the person whom he claimed to be. The Deputy Minister also noted that further investigations by the Netherlands police had disclosed that the applicant's fingerprints corresponded to those of Lyndon Patrick Bercay (Barchy), born on 8 December 1965, alias Sean Anthony Durham, born on 13 July 1970, alias Sean Anthony Kieran. According to additional information obtained from the Australian authorities, the person known by the name of Lyndon Patrick Berchy, born on 8 December 1964 and holding Indian citizenship, had entered Australia holding a visa, had unlawfully obtained an Australian passport and had left Australia on this passport on or around 19 November 1992. The Deputy Minister finally noted that, when the applicant was confronted with the above information on 11 March 1999, he had not wished to respond. Considering that the applicant, by having used a false identity, had unjustly been granted a residence permit, the Deputy Minister held that the validity of this permit was not eligible for prolongation. The applicant filed an objection (bezwaar) against this decision with the Deputy Minister on 7 July 1999.

On 28 September 1999, the Child Care and Protection Board submitted its advisory report, after a preliminary draft had been discussed with the parents, to the Regional Court. The applicant filed his reaction to this report with the Regional Court on 5 October 1999.

On 7 February 2000, the applicant was heard before the Advisory Board on Matters Concerning Aliens (Adviescommissie voor Vreemdelingenzaken) in relation to his objection against the refusal to prolong his residence permit.

In its decision of 11 February 2000, after a hearing held on 19 January 2000, the 's-Hertogenbosch Regional Court ordered that the applicant was to be denied access to his two sons for a period of two years, but that Ms B. was to inform him every two months of the children's school results, health and leisure activities. She was also ordered to provide him with a photograph of the children twice a year. The Regional Court found no reason to alter the children's care and custody arrangement. It considered that a change would entail so much unrest that it would not be in the interest of the children. As regards the arrangement for the applicant's access, it noted that the parents were incapable of communicating with each other about parental issues, and accepted that, owing to a history of violence between them, Ms B. was terrified of the applicant. It found that the applicant, who had admitted violent behaviour towards Ms B., failed to understand the need to reassure her, and considered that he should work on this. It concluded that it was not in the children's interests to expose them to a bitterly fought parental dispute. It held that – if both parents would make an effort to communicate as parents about their children without, in so doing, including their own problems with each other as ex-partners – it should be possible to revive the applicant's access arrangement in due course. As it had not appeared that the applicant was unfit for access to his children, the Regional Court decided not to terminate the access arrangement permanently, but only for a period of two years. After this period, it could be examined whether the implementation of an access arrangement, if need be with the assistance or under the supervision of social workers, would be feasible.

On 10 April 2000, the applicant filed an appeal with the 's-Hertogenbosch Court of Appeal, requesting the quashing of the ruling of 11 February 2000 and the granting of his requests – based on inter alia Article 8 of the Convention – made in his submissions of 13 October 1998. He further requested a declaratory ruling that the reasonable time requirement under Article 6 had been violated. The response by Ms B. to this appeal was submitted to the Court of Appeal on 16 May 2000, to which the applicant reacted in turn on 26 May 2000.

On 15 May 2000, the Deputy Minister of Justice rejected the applicant's objection against the refusal to prolong his residence permit. On 5 June 2000, the applicant filed an appeal against this decision with the Regional Court of The Hague.

In an interim decision taken on 21 June 2000, following a hearing held on 31 May 2000, the Court of Appeal noted that both parties had agreed to set up trial contacts between the applicant and his children under the supervision of a behavioural expert of the Child Care and Protection Board and, on this basis, decided to adjourn its further examination for a period of six months pending the submission of a report by the Child Care and Protection Board on these trial contacts.

By letter of 7 February 2001, the Child Care and Protection Board informed the Court of Appeal that it had become clear that co-operation between the parents for the purpose of setting up trial contacts was not feasible. After both parties had submitted a written reaction to the letter of 7 February 2001, a hearing before the Court of Appeal was held on 27 April 2001.

In a decision taken on 30 May 2001, the Court of Appeal noted, on the one hand, Ms B.'s refusal to co-operate but, on the other, found that it would not be in the children's interests to entrust the applicant with their care and custody as they had not seen him since May 1998, and thus had been unable to correct for themselves their perceived negative image of the applicant. It decided to quash the Regional Court's decision of 11 February 2000 in so far as it denied the applicant's access to the children, rejected Ms B.'s request to deprive the applicant of access and ordered that the applicant's access rights be restored as from the last weekend in June 2001. It further adjourned until 5 September 2001 its examination of the applicant's request to entrust him with the care and custody of the children or, in the alternative, to extend his access rights.

On 14 September 2001, the Court of Appeal resumed its examination and heard the parties. It noted that the applicant had not yet had access to his children. During a suspension of the hearing, the parties had a conversation under the guidance of an official of the Child Care and Protection Board to see whether it was possible to reach an arrangement for the applicant's access that was acceptable to both of them. After this suspension, the Court of Appeal noted that the parties had agreed to resume the access arrangement at short notice in that, during four subsequent weeks, supervised contact of one hour would take place at the premises of the Child Care and Protection Board, to be followed by a period of three months during which the children would spend one day per fortnight in the applicant's home, that arrangement being subsequently extended to one weekend per fortnight. The Court further noted that the parties had also agreed that Ms B. would initially bring and collect the children and that in a later phase it could be envisaged that the applicant would collect and return the children. The parties undertook to inform the Court of Appeal after four months about the implementation of the above arrangement and of the modalities of a definite access arrangement to be fixed by the court. On this basis, the Court of Appeal decided to adjourn its further examination until 13 March 2002.

On 19 September 2001, the Regional Court accepted the applicant's appeal of 5 June 2000 in respect of the refusal to prolong his residence permit. Referring to the considerations of the European Court of Human Rights in its judgment of 11 July 2000 in the case of Cılız v. the Netherlands (no. 29192/95, ECHR 2000-VIII), the Regional Court held that, as regards the applicant's reliance on his family life within the meaning of Article 8 of the Convention with his two children in the Netherlands, the Deputy Minister should, in balancing the interests involved, take into account updated relevant information and take a fresh decision with due regard to the considerations set out in the Cılız judgment. It therefore quashed the impugned decision and ordered the Deputy Minister to take a fresh decision on the applicant's objection of 7 July 1999.    

On 5, 14, 19 and 27 November 2001, the applicant and the children had contact with each other, under the supervision of an official of the Child Care and Protection Board. On 30 November 2001, the Child Care and Protection Board submitted its report on these contacts to the Court of Appeal. According to this report, the applicant had spoken with respect about Ms B. in the presence of the children, Ms B. had obviously motivated the children to meet their father, and the children had experienced positive contacts with him.

The Court of Appeal heard the parties anew on 12 March 2002 and, in its final ruling of 28 May 2002, decided to quash the decision of 11 February 2000 in so far as the applicant's request for access had been rejected, rejected the applicant's request to be entrusted with the children's care and custody and determined a definite arrangement for access. In so far as relevant it held as follows:

“14.1. [Ms B.] submitted ... that the phased access arrangement now in place is running well. ... [Ms B. and the applicant] are experiencing difficulties in communicating with each other; the contacts between them to date take place via their respective [new] partners. [Ms B.] had hoped that through mediation the communication between her and [the applicant] would improve. However, after two sessions [the applicant] declined [further] co-operation, despite the offer of the mediator to schedule the mediation sessions in the evening or at the weekend. [Ms B.] declared at the hearing that she will co-operate in an access arrangement to be formulated with as much clarity as possible. The collection and return of the children does remain a point of discussion.

14.2. [The applicant] wishes to maintain on appeal his primary request to alter the arrangement for the care and custody and the alternative request for an extension of the access arrangement. He submits that he is very afraid that the current access arrangement will be interrupted again by [Ms B.] should a problem arise. [The applicant] submits that he has suffered a lot in not having had any chance of access in the past 3½ years. He was very pleased to note that the children had nevertheless not become alienated from him. He further states that [Ms B.] is a good mother and that he does not doubt her educational qualities. He also submits that, owing to a lack of money and time, he had had to end his co-operation in the mediation. Collecting and returning the children is for [the applicant] a point of discussion. ...

14.4. Although the court understands that [the applicant] has suffered in not having had access to the children in the last 3½ years, this does not alter the fact that, in the interest of the children, the communication between [the applicant and Ms B.] must be improved. The court urges the parties with insistence to resume their communication via mediation.

As regards a change in the care and custody arrangement

14.5. As to the [applicant's] primary request to alter the care and custody arrangement, the court considers that, in order to grant this request, it must be established that a transition of the children to a care and education situation with the father and his partner offers better perspectives for the further development of the children than maintaining the current care and education situation with the mother and her partner. This is not the case here. [The applicant] has declared before the court that [Ms B.] is a good educator and that he does not doubt her educational qualities. The mere fear of [the applicant] that, in light of the current proceedings, [Ms B.] has consented to an access arrangement which she will block should a problem arise, is for the court an insufficient ground for altering the care and custody arrangement. The more so as [Ms B.] has agreed to co-operate in an access arrangement, formulated as clearly as possible. It has further appeared at the hearing that the contact between [the applicant] and the current partner of [Ms B.] is good. Also this gives the court confidence that [Ms B.] will correctly implement an access arrangement to be further defined.

On this ground the court is of the opinion that the primary request of [the applicant] to alter the care and custody arrangement must be dismissed.

As regards the access arrangement

... [by letters of 25 March 2002 each of the parties have submitted concrete proposals for the modalities of an access arrangement] ...

14.8. On the basis of the above-cited proposals ... the court determines the following arrangement for access for [the applicant] and the children:

until 8 June 2002, once every 14 days from Saturday at 10.00 hours until Sunday at 17.00 hours;

as from 8 June 2002 ... from Friday at 17.00 hours until Sunday at 17.00 hours.

The court further determines that, as from 8 June 2002, [Ms B.] will bring the children to [the applicant's home] on Friday afternoons and that on Sunday afternoons [the applicant] will return the children to [Ms B.'s home].

14.9. As regards holidays ... the court determines that the children will in principle spend half of the school and official holidays with [the applicant]; in any event during the summer holidays a period of two weeks consecutively. A further arrangement for school and official holidays can be determined between the parties in consultation with a mediator. ...”

The Court of Appeal did not address the remarks made by the applicant in respect of the Convention as set out in his final written submissions of 19 March 2002 to the Court of Appeal in the following terms:

“The judicial system and the Child Care and Protection Board have, in my view, wholly failed in ensuring an effective remedy (Article 13 of the Convention) to bring this case to a favourable end within a reasonable time (Article 6 of the Convention). As a result of this, a violation of my family life has occurred (Article 8 of the Convention) during a period of 3½ years, to be precise from 8 May 1998 to 4 November 2001. There has also been discrimination (Article 14 of the Convention) by not having organised contacts between the children and their father during the investigation [by the Child Care and Protection Board]. This right is also set out in the Civil Code (Burgerlijk Wetboek). The Board has initially taken a very biased (pro-mother) position and, in addition, taken much too long in their investigations and reports.”

Although it was possible to file a subsequent appeal in cassation – which is limited to points of law and procedural conformity – with the Supreme Court (Hoge Raad) against this ruling, no such appeal was filed by the applicant or Ms B.

In the meantime, on 21 May 2002, the Deputy Minister had taken a fresh negative decision on the applicant's objection against the refusal to prolong his residence permit. This decision was, however, withdrawn on 28 August 2003. After a new hearing before the Advisory Commission on Aliens' Affairs on 6 November 2003, the Minister of Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; the successor of the Deputy Minister of Justice) rejected the applicant's objection by a decision of 24 December 2003. However, on 2 September 2004, the Minister withdrew this decision and, in a fresh decision taken on 24 September 2004, granted the applicant a residence permit for the purposes of enjoying family life within the meaning of Article 8 of the Convention with his two sons.

B.  Relevant domestic law and practice

Access rights are regulated by Articles 1:337a-h of the Civil Code (Burgerlijk Wetboek). Article 1:377a, insofar as relevant, provides as follows:

“1.  The child and the parent who does not have custody are entitled to have access to each other (omgang met elkaar).

2.  The judge shall, at the request of the parents or of one of them, establish an arrangement, for a definite or indefinite period, for the exercise of the right of access or shall deny, for a definite or indefinite period, the right of access.

3.  The judge shall deny the right of access only if:

a.   access would seriously impair the mental or physical development of the child; or

b.  the parent must be deemed to be manifestly unfit for or manifestly incapable of access; or

c.  the child, being at least twelve years old, when being heard has manifested serious objections against allowing the parent access; or

d. access would for another reason be contrary to the weighty interests (zwaarwegende belangen) of the child.”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the access proceedings have exceeded a reasonable time, which entailed the alienation of his two sons from him. The applicant further complains that his inability to have access to the children for more than three years was in violation of his rights under Article 8 of the Convention. He also complains under Article 14 that he was a victim of institutionalised discrimination against men in the field of parental rights. The applicant further alleges violations of Article 1:377a of the Netherlands Civil Code and Article 9 of the Universal Declaration of the Rights of Children.

THE LAW

The applicant complains that the access proceedings at issue exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention and that, during the time taken by these proceedings, his rights under Article 8 of the Convention were breached, and that he was discriminated against in violation of Article 14 of the Convention. He lastly complains of violations of Article 1:377a of the Netherlands Civil Code and Article 9 of the Universal Declaration of the Rights of Children.

1. The Court considers at the outset that, under the terms of Article 19 of the Convention, it is only competent to examine alleged violations of the rights and freedoms guaranteed by the Convention and its additional Protocols. Consequently, the applicant's complaint of a violation of Article 9 of – what the Court understands to be – the 1989 United Nations Convention on the Rights of the Child must be rejected as being incompatible ratione materiae within the meaning of Article 35 § 3 of the Convention.

2. As regards the applicant's complaints under the Convention, the Court notes that the applicant has not availed himself of the possibility to file an appeal in cassation with the Supreme Court against the decision given on 28 May 2002 by the Court of Appeal. The question thus arises whether the applicant has complied with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. However, the Court does not find it necessary to determine this issue as the application is in any event manifestly ill-founded for the reasons set out below.

3. The applicant complains under Article 6 § 1 of the Convention that the proceedings on his access rights exceeded a reasonable time. This provision, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...“

Noting that there were in fact two sets of proceedings, namely the summary proceedings taken by the applicant seeking interim relief and the proceedings on the merits taken by Mrs B. seeking a termination of the applicant's access rights, the court considers that in the instant case, for the purposes of Article 6 of the Convention, only the proceedings on the merits are to be taken into account as it was in these proceedings that the domestic courts made a full and final determination of the applicant's access rights. The Court notes that the proceedings on the merits started on 4 September 1998, when Ms B. took proceedings against the applicant before the 's-Hertogenbosch Regional Court, and ended on 28 May 2002, when the 's-Hertogenbosch Court of Appeal gave its final decision on appeal in these proceedings. They thus lasted in total for three years, eight months and twenty-four days.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the parties and of the relevant authorities. On the latter point, what is at stake for the applicant in the litigation has to be taken into account. It is thus essential that custody and contact cases be dealt with speedily (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 25, § 69; Glaser v. the United Kingdom, § 93, 19 September 2000; Sesztakov v. Hungary, no. 59094/00, § 25, 16 December 2003).

Although the law to be applied was not particularly difficult, the Court considers that the case presented a certain complexity as the applicant and Ms B. for a considerable time were incapable of communicating with each other in an acceptable manner about parental issues. It notes that the domestic courts held that the children's welfare required that they would not be exposed to a bitterly fought parental dispute, and that there was serious work to be done in rebuilding the parents' mutual trust and confidence and an acceptable manner of communicating and dealing with each other. A further complicating factor was the mother's initial firm determination to avoid contact. It is clear that the domestic authorities would have been irresponsible in imposing stringent coercive measures on Ms B. without proper and careful consideration of the children's welfare, and that the above elements affected the duration of the proceedings.

As regards the authorities' conduct, the Court is of the opinion that the Regional Court as well as the Court of Appeal examined with reasonable expedition the requests put before them and did not omit any measures that might reasonably have been expected from them. While, in the proceedings before the Regional Court, it took the Child Care and Protection Board more than nine months to submit its report to the Regional Court, the Court considers that this was a necessary step in establishing the children's circumstances. It notes that the Board's report was drawn up after several meetings had been held from 12 April 1999 to 24 August 1999 between officials of the Child Welfare Council, the applicant, Ms B. and/or the children. Though it might have proceeded more quickly, the time taken by the Child Care and Protection Board was not outside reasonable bounds. Similarly, the three adjournments in the course of the appeal proceedings before the Court of Appeal, during which periods the parties – on the basis of their undertakings given before that court – were given the opportunity to reach an understanding and an arrangement acceptable to both, cannot be regarded as unreasonable in the circumstances. As a result of these efforts, the contact between the applicant and his children was eventually restored on 5 November 2001. In this connection the Court notes that the applicant's complaint that, as a consequence of the length of the proceedings, his children had become alienated from him is contradicted by the applicant's own statement before the Court of Appeal that he had been very pleased to note that the children had not become alienated from him.

Consequently, in the light of the criteria laid down in its case-law and having regard to the particular circumstances of the case, the Court is of the opinion that the proceedings did not exceed a reasonable time within the meaning of Article 6 § 1 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

4. The applicant further complains that his rights under Article 8 were violated from 9 May 1998 to 5 November 2001, during which period he was temporarily deprived of access to the children. Moreover, he alleges that he was a victim of the institutionalised discrimination of men in the field of parental rights, contrary to Article 14 of the Convention.

The relevant part of Article 8 of the Convention provides as follows:

“1.  Everyone has the right to respect for his ... family life, ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Insofar as the applicant alleges a breach of his rights under Article 8 of the Convention, the Court reiterates that the opportunity of preventing or putting right the violations alleged against them is in principle intended to be afforded to Contracting States by the rule of exhaustion of domestic remedies (see, for instance, Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 19, § 36). When the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention, to duplicate the domestic process with proceedings before this Court would appear hardly compatible with the subsidiary character of the machinery of protection established by the Convention. The Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, pp. 30-31, § 66).

As the 's-Hertogenbosch Court of Appeal, in its final decision of 28 May 2002, rejected the request by Ms B. to terminate the applicant's access rights and determined a definite arrangement for the applicant's access to his two children, the question arises whether the applicant can still claim to be a victim within the meaning of Article 34 of the Convention. However, the Court does not find it necessary to determine this question as it considers this complaint to be in any event manifestly ill-founded for the reasons set out below.

The Court recalls that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, amongst others, Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII).

An interference with a right guaranteed by Article 8 constitutes a violation of this provision unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”. The Court must also determine whether, having regard to the particular circumstances of the case and notably the importance of the decisions to be taken, the applicant was involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see, for instance, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87). Furthermore, consideration of what lies in the best interest of the child is of crucial importance in every case involving custody or access arrangements. It must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. The Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Hokkanen, cited above, p. 20, § 55).

  The Court notes that, in its decision of 11 February 2000, the 's-Hertogenbosch Regional Court ordered a temporary suspension of the applicant's access rights for a period of two years and that this decision was eventually quashed on appeal. It is clear that the Regional Court's decision was based on Article 1:337a of the Civil Code and thus “in accordance with the law”. Moreover, it sought to pursue the legitimate aim of protecting the rights and interests of the children, and the grounds on which the Regional Court relied were based on relevant and sufficient reasons. Accordingly, the Regional Court did not exceed the margin of appreciation afforded to it under paragraph 2 of Article 8. This finding is not altered by the fact that the Regional Court's decision was subsequently quashed by the 's-Hertogenbosch Court of Appeal as, in the course of the proceedings on appeal, the applicant's relation with Ms B. had improved considerably and they had been able to work out an arrangement for the applicant's access which was acceptable to both of them. The Court also finds no grounds for holding that the applicant was insufficiently involved in the decision-making. Nor is there any indication that the domestic judicial and child welfare authorities displayed a discriminatory attitude towards the applicant.

The Court is therefore of the opinion that the facts of the case do not disclose a breach of Article 8 of the Convention, either taken alone or in conjunction with Article 14 of the Convention.

It follows that this part of the application must also be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančıč 
 Registrar President

BERCHY alias DURHAM v. THE NETHERLANDS DECISION


BERCHY alias DURHAM v. THE NETHERLANDS DECISION