ECtHR Grants Application for Interim Measure under Rule 39 in respect of Article 8 Matter

Friday 19 February 2010

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In a rare move by the European Court of Human Rights, a Rule 39 application was granted in a non Article 3 matter, to stay the removal of an applicant involved in care proceedings and seeking contact rights with his child.

The Applicant had a poor immigration history, had been convicted for a criminal offence, suffered from significant mental health difficulties and had not physically met one of his children who was born whilst he was serving his sentence.

Having exhausted domestic remedies on whether his fresh claim regarding contact rights had any realistic prospects of success, and facing imminent removal to Jamaica, the Applicant, sought to persuade the ECtHR that irreparable harm would be caused to himself and to his children if he was removed: (1) prior to the Family Court being in a position to assess his suitability to have contact or to be considered as an alternative carer; (2) given that his significant mental health difficulties would be likely to impede his ability to look after his interests in respect of regaining contact rights from abroad; and (3) given the likely outcome that he and his child (who was subject to an interim care order) would loose the opportunity of gaining any meaningful contact with one another, which was not necessarily in the child's best interest.

Whilst the matter is by no means settled, it is encouraging to note that the ECtHR are taking such cases very seriously and have recognised the need to preserve the Applicant's position pending the full application being lodged with the Court. Femi Omere represents the Applicant. Chambers was instructed by J M Wilson Solicitors

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