CASE OF N.J.D.B. v. THE UNITED KINGDOM
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev
5. The applicant was born in 1954 and lives in Hertfordshire. 6. The applicant has a son, S., who was born in April 2000. The applicant was not married to the child’s mother, G., and the relationship ended a few months after S.’s birth. After the separation, S. continued to live with G. and the applicant maintained contact with him. On 17 August 2003 G. stopped the applicant’s contact with S. 7. In October 2003 the applicant instituted proceedings before Alloa Sheriff Court seeking parental rights and responsibilities and residence or, alternatively, residential contact. 8. In early July 2004 the applicant and G. agreed that the S. should reside with G. and that the applicant should have contact. The agreement was set out in a joint minute of agreement, on the basis of which the Sheriff Court, in an interlocutor dated 7 July 2004, granted the applicant parental rights and responsibilities in respect of S.; found that the applicant was entitled to residential and non-residential contact with S. on a basis and on dates specified in the interlocutor; and held that G. was to consult with the applicant when making decisions of importance with respect to the health, welfare, education and upbringing of S. The interlocutor did not provide for the dates upon which the regular contact was to begin or when during each four-week period it was to occur. It also failed to take into account pre-arranged holidays. 9. Because of the ambiguity in the interlocutor, the relationship between the applicant and G. quickly deteriorated. On 17 December 2004 the applicant lodged two minutes at the Sheriff Court: one to vary the July 2004 interlocutor by seeking a residence order in respect of S.; the other seeking a finding that G. was in contempt of court for breaching the July 2004 interlocutor. A curator ad litem was appointed by the Sheriff to represent S.’s interests. 10. The applicant was granted legal aid and was represented before the Sheriff Court by Mr Halley (counsel). The instructing solicitors were Jardine Donaldson. 11. Following a number of procedural hearings, a substantive hearing began on 9 September 2008 and concluded on 2 November 2009, after fifty-two non-consecutive court days. 12. The Sheriff’s decision on the application to vary the July 2004 interlocutor was issued on 22 January 2010. He considered that having regard to S.’s age, the history of the case and the influences at work on S., he would derive no benefit from contact in such circumstances. The Sheriff therefore concluded that there had been a material change in circumstances since the interlocutor of 7 July 2004; that it was in S.’s best interests that he did not have contact with his father; and that the interlocutor of 7 July 2004 required to be recalled. 13. The applicant appealed to the Inner House of the Court of Session. He contested the Sheriff’s decision and complained, inter alia, that the action had not been concluded within a reasonable time. 14. The applicant was granted legal aid to pursue his appeal. He was represented before the Inner House by Mr Andrew Smith QC and Mr Halley (counsel). The instructing solicitors were Drummond Miller LLP, for Jardine Donaldson. 15. The Inner House delivered its judgment on 22 October 2010. It did not uphold the applicant’s appeal. However, it varied the January 2010 interlocutor to make it clear that it in turn only varied the July 2004 interlocutor in respect of contact but did not make any change to the finding that the applicant enjoyed parental rights and that he had to be consulted on matters concerning S.’s health, welfare, education and upbringing. 16. In November 2010 a note was prepared by counsel supporting an application for legal aid to pursue an appeal to the Supreme Court. On 2 December 2010 a full application for legal aid was submitted to the Scottish Legal Aid Board, with counsel’s note in support. Shortly afterwards an appeal to the Supreme Court was lodged and the appeal process was suspended pending the determination of the legal aid application. 17. The curator ad litem objected to legal aid being granted to the applicant. The applicant responded to the observations of the curator ad litem. 18. By January 2011 the legal aid application had not yet been determined. The applicant expressed concern about the delay and the impact it would have on his chances of contact being re-established with S. He was told that there would be no meeting of the committee charged with making the legal aid decision until 7 March 2011. 19. On 5 April 2011 the Scottish Legal Aid Board intimated its refusal of legal aid to the applicant. On 6 April 2011 the applicant lodged an application for internal review. 20. On 5 July 2011, after reconsideration, the Board again refused legal aid. It found that there was no substantive issue of law arising to merit an appeal and that no practical benefit to the applicant could ensue. 21. On 22 July 2011 the applicant’s counsel and solicitors considered commencing judicial review proceedings in respect of the refusal to grant legal aid. It was decided on the applicant’s behalf that, as the delay involved in judicial review was likely to be extensive and given that legal aid for judicial review proceedings would almost certainly not be granted, no judicial review proceedings would be commenced. Counsel and the solicitors were not prepared to act pro bono in judicial review proceedings since the prospects of success would be low. However, they agreed to act pro bono in pursuing the appeal before the Supreme Court without legal aid. The Supreme Court waived its fees in respect of the appeal. 22. The applicant was represented before the Supreme Court by Mr Andrew Smith QC and Mr Halley. The instructing solicitors were Jardine Donaldson. 23. On 23 May 2012 the court handed down its judgment. It refused to uphold the applicant’s appeal.