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Law - ECHR - CASE OF ELSHOLZ v. GERMANY
JUDGMENT
STRASBOURG
13 July 2000
In the case of Elsholz v. Germany,
The European Court of Human Rights, sitting as a Grand Chamber
composed of the following judges:
Mr L. Wildhaber, President, Mrs E. Palm, Mr J.-P. Costa, Mr
L. Ferrari Bravo, Mr L. Caflisch, Mr W. Fuhrmann, Mr K. Jungwiert,
Mr J. Casadevall, Mr B. Zupancic, Mr J. Hedigan, Mrs W. Thomassen,
Mrs M. Tsatsa-Nikolovska, Mr T. Pantîru, Mr A.B. Baka,
Mr E. Levits, Mr K. Traja, Mr R. Maruste, and also of Mrs
M. de Boer-Buquicchio, Deputy Registrar, Having deliberated
in private on 1 March and 14 June 2000, Delivers the following
judgment, which was adopted on the last- mentioned date:
PROCEDURE
1. The case was referred to the Court in accordance with the
provisions applicable prior to the entry into force of Protocol
No. 11 to the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”)1 by
the European Commission of Human Rights (“the Commission”)
on 7 June 1999 and by a German national, Mr Egbert Elsholz
(“the applicant”), on 25 May 1999 (Article 5 §
4 of Protocol No. 11 and former Articles 47 and 48 of the
Convention).
2. The case originated in an application (no. 25735/94) against
the Federal Republic of Germany lodged with the Commission
under former Article 25 of the Convention by the applicant
on 31 October 1994.
3. The applicant alleged that the refusal to grant him access
to his son, a child born out of wedlock, amounted to a breach
of Article 8 of the Convention, that, as the father of a child
born out of wedlock, he had been the victim of discrimination
contrary to Article 14 of the Convention taken together with
Article 8 and that, under Article 6 § 1 of the Convention,
the proceedings before the German courts were unfair.
4. The Commission declared the application partly admissible
on 30 June 1997. In its report of 1 March 1999 (former Article
31 of the Convention)1, it expressed the opinion that there
had been a violation of Article 14 of the Convention taken
in conjunction with Article 8 (fifteen votes to twelve); that
no separate issue arose as regarded Article 8 taken alone
(fifteen votes to twelve); and that there had been a violation
of Article 6 § 1 (seventeen votes to ten).
5. Before the Court the applicant was represented by Mr P.
Koeppel, a lawyer practising in Munich (Germany). The German
Government (“the Government”) were represented
by their Agent, Mrs H. Voelskow-Thies, Ministerialdirigentin,
of the Federal Ministry of Justice.
6. On 7 July 1999 a panel of the Grand Chamber determined
that the case should be decided by the Grand Chamber (Rule
100 § 1 of the Rules of Court). Mr G. Ress, the judge
elected in respect of Germany, who had taken part in the Commission's
examination of the case, withdrew from sitting in the Grand
Chamber (Rule 28). The Government were accordingly invited
to indicate whether they wished to appoint an ad hoc judge
(Article 27 § 2 of the Convention and Rule 29 §
1). As the Government did not reply within thirty days, they
were presumed to have waived their right of appointment (Rule
29 § 2). Consequently, Mr L. Ferrari Bravo, first substitute
judge, replaced Mr Ress as a member of the Grand Chamber (Rule
24 § 5 (b)).
7. The applicant and the Government each filed a memorial.
8. After consulting the Agent of the Government and the applicant's
lawyer, the Grand Chamber decided that it was not necessary
to hold a hearing (Rule 59 § 2 in fine).
9. The applicant, a German national born in 1947, lives in
Hamburg. He is the father of the child, C., born out of wedlock
on 13 December 1986. On 9 January 1987 he acknowledged paternity
and undertook to pay maintenance for C. He fulfilled this
obligation regularly.
10. Since November 1985 the applicant had been living with
the child's mother and her elder son Ch. In June 1988 the
mother, together with the two children, moved out of the flat.
The applicant continued to see his son frequently until July
1991. On several occasions, he also spent his holidays with
the two children and their mother. Subsequently, no more visits
took place.
11. The applicant attempted to visit his son with the assistance
of the Erkrath Youth Office (Jugendamt), acting as mediator.
When questioned by an official of the Youth Office at his
home in December 1991, C. stated that he did not wish to have
further contacts with the applicant.
12. On 19 August 1992 the applicant applied to the Mettmann
District Court (Amtsgericht) for a decision granting him a
right of access (Umgangsregelung) to C. on the first Saturday
of every month, between 1 p.m. and 6 p.m. The applicant maintained
that the mother had refused him access to C. because he had
accused her of having failed to ensure the supervision of
the child when he had broken his arm in a playground accident
in July 1991 and as a result of which he had stopped the voluntary
monthly payments of 700 German marks which he claimed to have
made at the mother's request in addition to the stipulated
child maintenance. The mother contested the applicant's submissions.
She stated that the applicant had always been very generous
to her but that he had not paid her any maintenance.
13. The District Court, after a hearing on 4 November 1992
and having heard C. on 9 November 1992, dismissed the applicant's
request on 4 December 1992. The court observed that Article
1711 § 2 of the Civil Code (Bürgerliches Gesetzbuch)
concerning the father's right to personal contact with his
child born out of wedlock (see paragraph 24 below) was conceived
as an exemption clause which had to be construed strictly.
Thus, the competent court should order such access only if
this was advantageous and beneficial for the child's well-being.
According to the court's findings, these conditions were not
met in the applicant's case. The District Court noted that
the child had been heard and had stated that he no longer
wished to see his father who, according to the child, was
bad and had beaten his mother repeatedly. The mother likewise
had strong objections to the applicant which she had imparted
to the child, so that the child had no possibility of building
an unbiased relationship with his father. The District Court
concluded that contacts with the father would not enhance
the child's well-being.
14. On 8 September 1993 the applicant applied to the District
Court for an order requiring the child's mother to consent
to a family therapy for him and the child and for an order
determining his right of access after contacts with his son
had successfully resumed.
15. On 24 September 1993 the Erkrath Youth Office recommended
that the court should obtain a psychological expert opinion
on the question of access rights.
16. Having heard C. on 8 December 1993 and his parents at
an oral hearing on 15 December 1993, the District Court dismissed
the applicant's renewed request to be granted access on 17
December 1993.
In so doing, the court referred to its prior decision of 4
December 1992 and found that the conditions under Article
1711 of the Civil Code were not met. It noted that the applicant's
relationship with the child's mother was so strained that
the enforcement of access rights could not be envisaged as
this would not be in the interest of the child's well-being.
The child knew about his mother's objections to the applicant
and had adopted them. If C. were to be with the applicant
against his mother's will, this would put him into a loyalty
conflict which he could not cope with and which would affect
his well-being. The court added that it was irrelevant which
parent was responsible for the tension; it placed particular
emphasis on the fact that important tensions existed and that
there was a risk that any further contacts with the father
would affect the child's undisturbed development in the family
of the custodial parent. After two long interviews with the
child, the District Court reached the conclusion that his
development would be endangered if the child had to take up
contact with his father contrary to his mother's will. At
these interviews the child had called his father “nasty”
or “stupid”, adding that on no account did he
wish to see him and said also: “Mummy always says Egbert
is not my father. Mummy is afraid of Egbert.”
The District Court furthermore considered that the facts of
the case had been established clearly and exhaustively for
the purposes of Article 1711 of the Civil Code. It therefore
found it unnecessary to obtain an expert opinion.
17. On 13 January 1994 the applicant, represented by counsel,
lodged an appeal (Beschwerde) against this decision, requesting
that that decision be quashed, that an expert opinion be obtained
on the questions of access and of the child's true wishes
in this respect, and that the father's access rights be determined
accordingly.
18. On 21 January 1994 the Wuppertal Regional Court (Landgericht),
without a hearing, dismissed the applicant's appeal. In so
doing, it first stated that there were doubts on the admissibility
of the appeal as the applicant, by letter of 12 January 1994,
had informed the court of first instance that he would respect
that court's decision, and had requested help in order to
reach a friendly settlement. Furthermore, the Regional Court
found that the grounds of appeal contained in his submissions
did not fully coincide with the request addressed by the applicant
to the court of first instance.
The Regional Court, however, left open the question of whether
or not the appeal was inadmissible and decided that in any
event the applicant's request for access rights had to be
dismissed as access was not in the interests of the child's
well-being. It was not sufficient that such contacts were
compatible with the child's well-being; they had to be advantageous
and beneficial (nützlich und förderlich), and necessary
for the child's equilibrium (seelisch notwendig). The question
of whether or not these conditions were satisfied had to be
decided from the viewpoint of the child's situation and taking
into account all circumstances of the case. In this connection,
it was necessary to examine, inter alia, the reasons for which
the father wished to have contacts with the child, that is,
whether his motives were emotional or based on other factors.
In this context the relationship between the parents had to
be taken into account as well.
The Regional Court concluded, in line with the decision appealed
against, that the tensions between the parents had a negative
effect on the child, as was confirmed by the hearings with
the child held on 9 November 1992 and 8 December 1993, and
that contact with his father was not therefore in the child's
best interest, even less so because this contact had in fact
been interrupted for about two and a half years. It was irrelevant
who was responsible for the break-up of life in common. What
mattered was that in the present situation contact with the
father would negatively affect the child. This conclusion,
in the Regional Court's view, was obvious, which was why there
was no necessity of obtaining an opinion from an expert in
psychology. Moreover, Article 1711 § 2 of the Civil Code
did not provide for a psychological therapy to prepare a child
for contact with his or her father. The Regional Court finally
observed that there was no necessity to hear the parents and
the child again since there was no indication that any findings
more favourable for the applicant could result from such a
hearing.
19. On 19 April 1994 a panel of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) refused to
entertain the applicant's constitutional complaint (Verfassungsbeschwerde).
According to the Federal Constitutional Court, the complaint
did not raise any issues of a general character affecting
the observance of the Constitution. In particular, the question
of whether Article 1711 of the Civil Code was compatible with
the right to family life as guaranteed by Article 6 §
2 of the Basic Law (Grundgesetz) did not arise, as the ordinary
courts had based the denial of the applicant's request for
access rights not only on the ground that such a right would
not serve the child's well-being, but also on the much stronger
reason that it was incompatible with the child's well-being.
Furthermore, the right to a fair hearing was not violated
by the fact that the applicant had not been heard personally
and that his request to obtain an expert opinion had been
rejected.
A. Legislation on family matters currently in force
20. The statutory provisions on custody and access are to
be found in the German Civil Code (Bürgerliches Gesetzbuch).
They have been amended on several occasions and many were
repealed by the amended Law on Family Matters (Reform zum
Kindschaftsrecht) of 16 December 1997 (Federal Gazette (Bundesgesetzblatt-BGBl)
1997, p. 2942), which came into force on 1 July 1998.
21. Article 1626 § 1 reads as follows:
“The father and the mother have the right and the duty
to exercise parental authority [elterliche Sorge] over a minor
child. The parental authority includes the custody [Personensorge]
and the care of property [Vermögenssorge] of the child.”
22. Pursuant to Article 1626 a § 1, as amended, the parents
of a minor child born out of wedlock jointly exercise custody
if they make a declaration to that effect (declaration on
joint custody) or if they marry. According to Article 1684,
as amended, a child is entitled to have access to both parents;
each parent is obliged to have contact with, and entitled
to have access to, the child. Moreover, the parents must not
do anything that would harm the child's relationship with
the other parent or seriously interfere with the child's upbringing.
The family courts can determine the scope of the right of
access and prescribe more specific rules for its exercise,
also with regard to third parties; and they may order the
parties to fulfil their obligations towards the child. The
family courts can, however, restrict or suspend that right
if such a measure is necessary for the child's welfare. A
decision restricting or suspending that right for a lengthy
period or permanently may only be taken if otherwise the child's
well-being would be endangered. The family courts may order
that right of access be exercised in the presence of a third
party, such as a Youth Office authority or an association.
23. Before the entry into force of the amended Law on Family
Matters, the relevant provision of the Civil Code concerning
custody and access for a child born in wedlock was worded
as follows:
Article 1634
“1. A parent not having custody has the right to personal
contact with the child. The parent not having custody and
the person having custody must not do anything that would
harm the child's relationship with others or seriously interfere
with the child's upbringing.
2. The family court can determine the scope of that right
and can prescribe more specific rules for its exercise, also
with regard to third parties; as long as no decision is made,
the right, under Article 1632 § 2, of the parent not
having custody may be exercised throughout the period of contact.
The family court can restrict or suspend that right if such
a measure is necessary for the child's welfare.
3. A parent not having custody who has a legitimate interest
in obtaining information about the child's personal circumstances
may request such information from the person having custody
in so far as this is in keeping with the child's interests.
The guardianship court shall rule on any dispute over the
right to information.
4. Where both parents have custody and are separated not merely
temporarily, the foregoing provisions shall apply mutatis
mutandis.”
24. The relevant provisions of the Civil Code concerning custody
of and access to a child born out of wedlock were worded as
follows:
Article 1705
“Custody over a minor child born out of wedlock is exercised
by the child's mother ...”
Article 1711
“1. The person having custody of the child shall determine
the father's right of access to the child. Article 1634 §
1, second sentence, applies by analogy.
2. If it is in the child's interests to have personal contact
with the father, the guardianship court can decide that the
father has a right to personal contact. Article 1634 §
2 applies by analogy. The guardianship court can change its
decision at any time.
3. The right to request information about the child's personal
circumstances is set out in Article 1634 § 3.
4. Where appropriate, the youth office shall mediate between
the father and the person who exercises the right of custody.”
25. Like proceedings in other family matters, proceedings
under former Article 1711 § 2 of the Civil Code were
governed by the Act on Non-Contentious Proceedings (Gesetz
über die Angelegenheiten der freiwilligen Gerichtsbarkeit).
26. According to section 12 of that Act, the court shall,
ex officio, take the measures of investigation that are necessary
to establish the relevant facts and take the evidence that
appears appropriate.
27. In proceedings regarding access, the competent youth office
has to be heard prior to the decision (section 49(1)(k)).
28. As regards the hearing of parents in custody proceedings,
section 50a(1) stipulates that the court shall hear the parents
in proceedings concerning custody or the administration of
the child's assets. In matters relating to custody, the court
shall, as a rule, hear the parents personally. In cases concerning
placement into public care, the parents shall always be heard.
According to paragraph 2 of section 50a, a parent not having
custody shall be heard except where it appears that such a
hearing would not contribute to the clarification of the matter.
29. The applicant complained that the German court decisions
dismissing his request for access to his son, a child born
out of wedlock, amounted to a breach of Article 8 of the Convention,
the relevant part of which provides:
“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.”
1. The applicant
30. The applicant submitted that he had formed a family with
the mother and their common child before his relationship
with the mother broke up about one and a half years after
the child was born. He considered that this situation was
comparable to that of a divorced couple and that, consequently,
he should have been granted a right of access to his child
like a divorced father. He contended that he had suffered
prejudice on account of the relevant regulations of the German
law on contact between fathers and children born out of wedlock,
in particular Article 1711 of the Civil Code in force at the
material time. This provision was not repealed until the entry
into force of the amended Law on Family Matters. According
to the applicant, the reasoning of the Federal Constitutional
Court was still based on Article 1711 of the Civil Code. He
maintained that the attitude of the German courts at that
time was responsible for the lack of contact between him and
his son since 1991. The German courts had allowed the mother
to break off contact and permitted his son to be influenced
by her, with the result that he then refused any contact with
his father. Although the applicant could have filed a new
application for access to his son after 1 July 1998, years
had been lost by that time and with them the opportunity for
meaningful contact between him and his son.
31. In addition, owing to the long period of time that had
elapsed since the last contact, the child had become alienated
from him. Experts had confirmed that this problem could not
be solved without specialised psychological support. Such
support would be possible and have any prospect of success
only with the agreement of the mother, who had the sole custody
of the child, and with the cooperation of the latter. However,
it was to be expected that the applicant's son, who at that
time was more than thirteen years old, would refuse contact
with his father. As a rule, the decisions of the German courts
of appeal attached considerable importance to the will of
a child of this age, whose opinion had to be taken into account
in proceedings concerning parental access, and they were unlikely
to grant the father access to the child against the latter's
will.
32. In their decisions, both the Mettmann District Court and
the Wuppertal Regional Court refused the applicant access
to his son on the grounds that the bad relationship between
the parents exposed the child to a conflict of loyalty, and
that at the two court hearings the child had called his father
“nasty” or “stupid”, adding that on
no account did he wish to see him. At the second hearing,
the child, who was then almost six years old, said: “Mummy
always says Egbert is not my father. Mummy is afraid of Egbert.”
According to the applicant, this statement was made under
the influence of the mother or one of her close acquaintances
and with her approval. Another statement made by the child
and recorded by the court showed that the mother had scared
the child by running away when meeting the father by accident.
33. These statements by the child were, in the applicant's
submission, extremely important because they showed that the
mother programmed the child against his father, making him
a victim of what was called the parental alienation syndrome
(PAS). The child therefore totally rejected any contact with
his father. If a report had been obtained from a competent
family or child psychologist at that time, it could have shown
that the child had been influenced or used by the mother against
the father. For this reason, the decision of the two courts
not to appoint an expert, as requested by him and recommended
by the Youth Office, was not only a violation of the father's
interests but also of those of the child, since contacts with
the other parent were in the child's best medium- and long-term
interests.
34. By refusing to allow the father access to his child and
by ruling in favour of the mother, who had been given sole
custody, the German courts, including the Federal Constitutional
Court, violated the State's constitutional duty to protect
its citizens against violations of their rights by private
individuals. The State must enforce the observance of human
rights in its domestic legal order.
35. The results of American research concerning the PAS had
been available since 1984 and 1992. They very soon led to
a large number of specialised publications and were taken
into account by American and Canadian courts in their case-law.
If Germany had been prepared to adopt the results of the research
carried out in the United States, where far larger research
budgets were available, and to act upon them, the court could,
at the time, have reached a different decision, because the
judge who questioned the child could have interpreted differently
the child's remarks rejecting his father. At the very least,
however, the court should have appointed a competent expert
familiar with the specific psycho-dynamics of family relations.
36. The applicant concluded that the German authorities had
violated their duty resulting from Article 8 of the Convention
to protect citizens' human rights, in that they had failed,
up to that point, to make the results of international research
on the PAS known to the German youth authorities and family
courts by providing them with suitable training.
37. The Government, referring to the Court's case-law (the
Marckx v. Belgium judgment of 13 June 1979, Series A no. 31,
and the Keegan v. Ireland judgment of 26 May 1994, Series
A no. 290), admitted that the relationship between the applicant
and his son came within the notion of family life under Article
8 § 1. However, in their submission, the statutory regulations
on the right of access of fathers to their children born out
of wedlock did not, as such, amount to an interference with
the rights under that provision. But the Government did concede
that the German court decisions in the applicant's case, which
were based on this legislation, amounted to an interference
with the applicant's rights under Article 8 § 1.
38. Having regard to the criteria established in the Court's
case-law regarding the positive obligations inherent in an
effective respect for family life and regarding the justifications
for interference listed in Article 8 § 2 (see the Marckx
judgment cited above; the Johnston and Others v. Ireland judgment
of 18 December 1986, Series A no. 112; and the Keegan judgment
cited above), the Government maintained that the rules enacted
by the German legislator in order to take account of the particular
situation of children born out of wedlock fell within the
margin of appreciation granted to the Contracting States.
39. The Government considered that the German court decisions
in question were in accordance with German law and served
to protect the interests of the applicant's child. Moreover,
the interference complained of was necessary in a democratic
society within the meaning of Article 8 § 2. In this
respect, the Government submitted that the child's well-being
was the principle guiding the German courts. Thus, the refusal
of right of access which could only be implemented by means
of compulsion was proportionate to the aim pursued. The Government
pointed out that, in reaching its conclusion, the District
Court relied upon its personal impressions after having heard
the child. There was no possibility under German law to require
the parties to undergo family therapy with a view to creating
the conditions for access rights, and it could not be in a
child's best interest to impose mediation regarding the conflict
between the parents.
40. Having concluded that in the present case there had been
a violation of Article 8 of the Convention taken in conjunction
with Article 14, the Commission did not consider it necessary
to decide on the alleged violation of Article 8 taken alone.
It did however refer to the arguments advanced in respect
of Article 8 taken in conjunction with Article 14, to the
effect that the objections voiced by the child's mother seemed
to have had a strong impact on the German courts' decisions.
The Commission further held that the courts had failed to
apply the test of necessity of the interference, that is,
had failed to examine whether refusal of access was necessary
in the interest of C.'s welfare. In this respect, it distinguished
the present case from those in which the domestic courts had
reached the conclusion that refusal of access was required
by the interests of the child after having obtained a detailed
report by the social services or statements of doctors. According
to the Commission, no reasonable relationship of proportionality
existed between the means employed and the aim pursued.
41. Ten dissenting members of the Commission, however, expressed
the opinion that there had been no violation of Article 8.
In their view, the decisions of the courts showed that the
reasons for interfering with the applicant's family life were
sufficient and relevant. Moreover, the decision-making process
was such as to enable the applicant to be sufficiently involved.
In this regard, they noted that the applicant could be in
contact with a mediator of the Erkrath Youth Office, was heard
by the District Court and could file an appeal with the Regional
Court.
42. Two other dissenting members of the Commission expressed
the opinion that the combination of the refusal to order an
independent psychological report or to provide details on
the basis of the District Court's evaluation and the applicant's
inability to present arguments advocating such a report or
evaluation at a hearing before the Regional Court had a particularly
adverse effect on his interests because access to the child
had originally been denied by reason of the mother's objections,
which she had communicated to the child. In these circumstances,
the applicant was not involved in the decision-making process,
seen as a whole, to a degree sufficient to provide him with
the requisite protection of his interests. The two dissenting
members thus concluded that there had been a violation of
Article 8.
1. Whether there was an interference with the applicant's
right to respect for his family life under Article 8 of the
Convention
43. The Court recalls that the notion of family under this
provision is not confined to marriage-based relationships
and may encompass other de facto “family” ties
where the parties are living together out of wedlock. A child
born out of such a relationship is ipso jure part of that
“family” unit from the moment and by the very
fact of his birth. Thus there exists between the child and
his parents a bond amounting to family life (see the Keegan
judgment cited above, pp. 17-18, § 44). The Court further
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, the Johansen v. Norway
judgment of 7 August 1996, Reports of Judgments and Decisions
1996-III, pp. 1001-02, § 52, and the Bronda v. Italy
judgment of 9 June 1998, Reports 1998-IV, p. 1489, §
51).
44. The Court notes that the applicant lived with his son
from his birth in December 1986 to June 1988, when the mother
left with both children, that is, for about one and a half
years. He continued to see his son frequently until July 1991.
The subsequent decisions refusing the applicant access to
his son therefore interfered with the exercise of his right
to respect for his family life as guaranteed by paragraph
1 of Article 8 of the Convention. In these circumstances,
the Court considers that there is no need to examine whether
or not Article 1711 of the Civil Code as such constituted
an interference with the applicant's right to respect for
his family life.
45. The interference mentioned in the preceding paragraph
constitutes a violation of Article 8 unless it is “in
accordance with the law”, pursues an aim or aims that
are legitimate under paragraph 2 of this provision and can
be regarded as “necessary in a democratic society”.
2. Whether the interference was justified
(a) “In accordance with the law”
46. It was undisputed before the Court that the relevant decisions
had a basis in national law, namely, Article 1711 § 2
of the Civil Code as in force at the relevant time.
(b) Legitimate aim
47. In the Court's view the court decisions of which the applicant
complained were clearly aimed at protecting the “health
or morals” and the “rights and freedoms”
of the child. Accordingly they pursued legitimate aims within
the meaning of paragraph 2 of Article 8.
(c) “Necessary in a democratic society”
48. In determining whether the impugned measure was “necessary
in a democratic society”, the Court will consider whether,
in the light of the case as a whole, the reasons adduced to
justify this measure were relevant and sufficient for the
purposes of paragraph 2 of Article 8 of the Convention. Undoubtedly,
consideration of what serves best the interest of the child
is of crucial importance in every case of this kind. Moreover,
it must be borne in mind that the national authorities have
the benefit of direct contact with all the persons concerned.
It follows from these considerations that 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 the Hokkanen v. Finland judgment
of 23 September 1994, Series A no. 299-A, p. 20, § 55,
and, mutatis mutandis, the Bronda judgment cited above, p.
1491, § 59).
49. The margin of appreciation to be accorded to the competent
national authorities will vary in accordance with the nature
of the issues and the importance of the interests at stake.
Thus, the Court recognises that the authorities enjoy a wide
margin of appreciation, in particular when assessing the necessity
of taking a child into care. However, a stricter scrutiny
is called for in respect of any further limitations, such
as restrictions placed by those authorities on parental rights
of access, and of any legal safeguards designed to secure
an effective protection of the right of parents and children
to respect for their family life. Such further limitations
entail the danger that the family relations between the parents
and a young child would be effectively curtailed (see the
Johansen judgment cited above, pp. 1003-04, § 64).
50. The Court further recalls that a fair balance must be
struck between the interests of the child and those of the
parent (see, for example, the Olsson v. Sweden judgment (no.
2) of 27 November 1992, Series A no. 250, pp. 35-36, §
90) and that in doing so particular importance must be attached
to the best interests of the child which, depending on their
nature and seriousness, may override those of the parent.
In particular, the parent cannot be entitled under Article
8 of the Convention to have such measures taken as would harm
the child's health and development (see the Johansen judgment
cited above, pp. 1008-09, § 78).
51. In the present case the Court notes that the competent
national courts, when refusing the applicant's request for
a visiting arrangement, relied on the statements made by the
child, questioned by the District Court at the age of about
five and six years respectively, took into account the strained
relations between the parents, considering that it did not
matter who was responsible for the tension, and found that
any further contact would negatively affect the child.
52. The Court does not doubt that these reasons were relevant.
However, it must be determined whether, having regard to the
particular circumstances of the case and notably the importance
of the decisions to be taken, the applicant has been 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 the W. v. the United Kingdom judgment of
8 July 1987, Series A no. 121, pp. 28-29, § 64). It recalls
that in the present case the District Court considered it
unnecessary to obtain an expert opinion on the ground that
the facts had been clearly and completely established for
the purposes of Article 1711 of the Civil Code (see paragraph
16 above). In this connection, the District Court referred
to the strained relations between the parents and in particular
to the mother's objections to the applicant which she imparted
to the child. The Court considers that the reasons given by
the District Court are insufficient to explain why, in the
particular circumstances of the case, expert advice was not
considered necessary, as recommended by the Erkrath Youth
Office. Moreover, taking into account the importance of the
subject matter, namely, the relations between a father and
his child, the Regional Court should not have been satisfied,
in the circumstances, with relying on the file and the written
appeal submissions without having at its disposal psychological
expert evidence in order to evaluate the child's statements.
The Court notes in this context that the applicant, in his
appeal, challenged the findings of the District Court and
requested that an expert opinion be prepared to explore the
true wishes of his child and to solve the question of access
accordingly, and that the Regional Court had full power to
review all issues relating to the request for access.
53. The combination of the refusal to order an independent
psychological report and the absence of a hearing before the
Regional Court reveals, in the Court's opinion, an insufficient
involvement of the applicant in the decision-making process.
The Court thus concludes that the national authorities overstepped
their margin of appreciation, thereby violating the applicant's
rights under Article 8 of the Convention.
54. The applicant further complained that he had been a victim
of discriminatory treatment in breach of Article 14 of the
Convention taken in conjunction with Article 8. Article 14
provides:
“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.”
55. In the applicant's submission, Article 1711 of the Civil
Code on contacts between a father and his child born out of
wedlock discriminated against the father when confronted with
the provisions of Article 1634 of the Civil Code relating
to contacts between a father and his legitimate child.
56. The Government maintained that neither the statutory regulations
on the right of access to children born out of wedlock in
themselves, nor their application in the particular case,
discriminated against the applicant in the enjoyment of his
right to respect for his family life.
57. The Government recalled the Commission's earlier decisions
according to which the provisions of Article 1711 of the Civil
Code did not entail any discrimination contrary to Article
14 (application no. 9588/81, decision of 15 March 1984, and
application no. 9530/81, decision of 14 May 1984, both unreported).
The consideration that fathers of children born out of wedlock
were often not interested in contact with their children and
might leave a non-marital family at any time, and that it
was normally in the child's interest to entrust the mother
with custody and access, still applied, even if the number
of non-marital families had increased. Article 1711 §
2 of the Civil Code struck a reasonable balance between the
competing interests involved in all these cases. In this context,
the Government observed that the amended Law on Family Matters
did not alter this assessment. Moreover, in the applicant's
case, the courts considered that granting the father a right
of access was not in his son's interest and that his situation
was, therefore, comparable to that of a divorced father.
58. The Commission held that the submissions of the Government
regarding the distinction between married and unmarried fathers
underlying Article 1711 § 2 of the Civil Code failed
sufficiently to justify a refusal of access. In the Commission's
view, the applicant, when seeking access to his child, was
in a situation comparable to that of a parent who, following
divorce, was not exercising the right of custody. However,
while under the German legislation the divorced parent was
entitled to access unless such access was contrary to the
child's well-being, the natural father was only entitled to
access if such access was in the interest of the child. The
Commission concluded that in the present case there had been
a violation of Article 8 of the Convention taken in conjunction
with Article 14.
59. The Court does not find it necessary to consider whether
the former German legislation as such, namely, Article 1711
§ 2 of the Civil Code, made an unjustifiable distinction
between fathers of children born out of wedlock and divorced
fathers, such as to be discriminatory within the meaning of
Article 14, since the application of this provision in the
present case does not appear to have led to a different approach
than would have ensued in the case of a divorced couple.
60. The Court notes that the District Court's reasoning of
17 December 1993, after hearing the child and both parents,
was clearly based on the danger to the child's development
if he had to take up contact with the applicant contrary to
the will of the mother. The risk to the child's welfare was
thus the paramount consideration. The Regional Court, on appeal,
equally based its decision of 21 January 1994 on the finding
that contacts would negatively affect the child. In the Court's
view, the applicant has not shown that, in a similar situation,
a divorced father would have been treated more favourably.
Finally, the Federal Constitutional Court confirmed that the
ordinary courts had applied the same test as would have been
applied to a divorced father.
61. Consequently, it cannot be said on the facts of the present
case that a divorced father would have been treated more favourably.
There has accordingly been no violation of Article 14 of the
Convention taken in conjunction with Article 8.
62. The applicant alleged that he had been the victim of a
violation of Article 6 § 1 of the Convention, the relevant
part of which reads:
“In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal established by law.”
63. The applicant contended that the refusal to order an expert
opinion and the absence of a hearing before the Regional Court
deprived him of the opportunity of showing that the denial
of access was contrary to his son's interests.
64. The Government submitted that the applicant had been heard
at first instance and that it was sufficient for the purposes
of Article 6 § 1 that the Regional Court took cognisance
of his written appeal submissions. Moreover, the courts had
a discretionary power to assess what evidence offered by the
parties to civil proceedings was crucial for a decision. In
the present case, there were no special circumstances which
would have warranted an expert opinion to clarify the question
of whether the applicant's access to C. was in the interest
of the child. Furthermore, taking into account the fact that
the District Court had questioned C. only one month prior
to the Regional Court's decision and that the file contained
a detailed note on this hearing, the Regional Court was not
required to hear C. again.
65. The Commission considered that the proceedings before
the Mettmann District Court and the Wuppertal Regional Court,
taken as a whole, did not satisfy the requirements of a fair
and public hearing, having regard to the lack of psychological
expert evidence and the fact that the Regional Court did not
conduct a further hearing.
66. The Court recalls that the admissibility of evidence is
primarily a matter for regulation by national law and that,
as a general rule, it is for the national courts to assess
the evidence before them. The Court's task under the Convention
is rather to ascertain whether the proceedings as a whole,
including the way in which evidence was taken, were fair (see,
mutatis mutandis, the Schenk v. Switzerland judgment of 12
July 1988, Series A no. 140, p. 29, §§ 45 and 46,
and the H. v. France judgment of 24 October 1989, Series A
no. 162-A, p. 23, §§ 60-61).
The Court, having regard to its findings with respect to Article
8 (see paragraphs 52-53 above), considers that in the present
case, because of the lack of psychological expert evidence
and the circumstance that the Regional Court did not conduct
a further hearing although, in the Court's view, the applicant's
appeal raised questions of fact and law which could not adequately
be resolved on the basis of the written material at the disposal
of the Regional Court, the proceedings, taken as a whole,
did not satisfy the requirements of a fair and public hearing
within the meaning of Article 6 § 1. There has thus been
a breach of this provision.
67. Article 41 of the Convention provides:
“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal
law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
68. The applicant sought 90,000 German marks (DEM) in compensation
for non-pecuniary damage, attributable to the anxiety and
distress he had felt as a result of the denial of contact
with his son since 1991. He pointed out that the loss of a
child could not in any way be measured in terms of money.
However, he had found it very difficult to live with the fact
that he had been prevented, first by the mother and then by
the judicial and youth authorities, to play a role of responsibility
as his son's father and to support him whenever necessary.
As he had had difficulty coping with the suffering he had
had to seek psychological help.
69. The Government did not comment.
70. The Court finds it impossible to assert that the relevant
decisions would have been different if the violation of the
Convention had not occurred. Nevertheless, the Court feels
unable to conclude that no practical benefit could have accrued
to the applicant in that case. Whilst the applicant was the
victim of procedural defects, these were all intimately related
to the interference with one of the most fundamental rights,
namely, that of respect for family life. It cannot, in the
Court's opinion, be excluded that if the applicant had been
more involved in the decision-making process, he might have
obtained some degree of satisfaction and this could have changed
his future relationship with the child. In this respect he
may therefore have suffered a real loss of opportunity warranting
monetary compensation. In addition, the applicant certainly
suffered non-pecuniary damage through anxiety and distress.
71. The Court thus concludes that the applicant suffered some
non-pecuniary damage which is not sufficiently compensated
by the finding of a violation of the Convention. None of the
factors cited above lends itself to precise quantification.
Making an assessment on an equitable basis, as required by
Article 41, the Court awards the applicant DEM 35,000.
72. The applicant further claimed DEM 12,584.26 for costs
and expenses before the German courts and the organs of the
Convention (of which DEM 10,049.45 is claimed for the latter
proceedings).
73. If the Court finds that there has been a violation of
the Convention, it may award the applicant not only the costs
and expenses incurred before the organs of the Convention,
but also those incurred before the national courts for the
prevention or redress of the violation (see, in particular,
the Hertel v. Switzerland judgment of 25 August 1998, Reports
1998-VI, p. 2334, § 63). In the instant case, having
regard to the subject matter of the proceedings before the
German courts and what was at stake in them, the applicant
is entitled to request payment of the costs and expenses incurred
before these courts in addition to the costs and expenses
of the proceedings before the Commission and the Court. The
Court finds that the costs and expenses are shown to have
been actually and necessarily incurred and are reasonable
as to quantum (see, among other authorities, Immobiliare Saffi
v. Italy, [GC], no. 22774/93, § 79, ECHR 1999-V).
Under the circumstances, the Court considers it appropriate
to award the applicant DEM 12,584.26, as requested.
74. According to the information available to the Court, the
statutory rate of interest applicable in Germany at the date
of adoption of the present judgment is 4% per annum.
1. Holds by thirteen votes to four that there has been a violation
of Article 8 of the Convention;
2. Holds unanimously that there has been no violation of Article
14 of the Convention taken in conjunction with Article 8;
3. Holds by thirteen votes to four that there has been a violation
of Article 6 § 1 of the Convention;
4. Holds unanimously
(a) that the respondent State is to pay the applicant, within
three months, together with any value-added tax that may be
chargeable:
(i) DEM 35,000 (thirty-five thousand German marks) in respect
of non-pecuniary damage;
(ii) DEM 12,584.26 (twelve thousand five hundred and eighty-four
German marks twenty-six pfennigs) in respect of costs and
expenses;
(b) that simple interest at an annual rate of 4% shall be
payable from the expiry of the above-mentioned three months
until settlement;
5. Dismisses unanimously the remainder of the applicant's
claim for just satisfaction.
Done in English and in French, and notified in writing on
13 July 2000, pursuant to Rule 77 §§ 2 and 3 of
the Rules of Court.
Luzius Wildhaber
President Maud de Boer-Buquicchio
Deputy Registrar
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the following partly
dissenting opinion of Mr Baka joined by Mrs Palm, Mr Hedigan
and Mr Levits is annexed to this judgment.
L.W.
M.B.
JOINED BY JUDGES PALM, HEDIGAN and levits
I am unable to subscribe to the opinion of the majority of
the Court that there has been a violation of Article 8 taken
alone and Article 6 § 1. I agree however that there has
been no violation of Article 14 of the Convention taken in
conjunction with Article 8.
As to the section which deals with the interpretation of Article
8 I agree with the majority that the relevant decisions of
the national courts were in accordance with the law and that
they served a legitimate aim, namely protecting the interests
of the child, within the meaning of paragraph 2 of Article
8. I however disagree with the majority's opinion that “the
refusal to order an independent psychological report and the
absence of a hearing before the Regional Court” amounts
to “an insufficient involvement of the applicant in
the decision-making process” and that consequently “the
national authorities overstepped their margin of appreciation”
under Article 8.
The Court has constantly emphasised that the national authorities
are better placed to evaluate the evidence adduced before
them (see among other authorities the Winterwerp v. the Netherlands
judgment of 24 October 1979, Series A no. 33, p. 18, §
40). It has also pointed out that “as a general rule,
it is for the national courts to assess the evidence before
them as well as the relevance of the evidence which defendants
seek to adduce” (see the Vidal v. Belgium judgment of
22 April 1992, Series A no. 235-B, pp 32-33, § 33).
This constant case-law and the whole logic of the system established
by the Convention impose reasonable limits on the scope of
control over the national courts' fact finding and assessment
of evidence by the European Court. In this respect the domestic
courts – rightly – should enjoy a wide margin
of appreciation. It is true that this margin of appreciation
is not unlimited and is ultimately subject to stricter scrutiny,
but this international supervision cannot go as far as reassessing
national-level evidence in a larger number of cases.
The margin of appreciation left for the national courts is
even broader in cases like the present one which concerns
primarily the interests of the child's well-being. In this
case I am satisfied with the fact that the District Court,
after having heard the parents and the child first on 4 and
9 November 1992 and subsequently on 8 and 15 December 1993,
dismissed the applicant's renewed request to be granted access
rights. After the oral hearings and the two lengthy interviews
with the child only this court had the benefit of direct contact
with the members of the family and was able to clarify fully
the strained relationship between the parents and to decide
according to the best interests of the child. After this careful
examination only this court was in a position to say that
it was clearly unnecessary in the particular circumstances
of the case to accept the recommendation of the Erkrath Youth
Office to obtain a psychological expert opinion on the question
of access rights. The opposite decision would have been not
only unjustified but it could also have caused additional
unnecessary stress to the child.
I am also of the opinion that the decision of the Regional
Court not to conduct a further oral hearing and to decide
on the basis of the written material was in the circumstances
a reasonable and acceptable decision. It is very hard to believe
that less than two months after the first-instance oral hearings
and interviews the Regional Court would have obtained any
further benefit from a repeated oral hearing on that level.
The Regional Court explained the reasons for its decision.
Moreover, the Court has held on a number of occasions that
“provided that there has been a public hearing at first
instance, the absence of 'public hearings' before a second
or third instance may be justified by the special features
of the proceedings at issue” (see the Monnell and Morris
v. the United Kingdom judgment of 2 March 1987, Series A no.
115, pp. 22-23, § 58; the Ekbatini v. Sweden judgment
of 26 May 1998, Series A no. 134, p. 14, § 31; and the
Helmers v. Sweden judgment of 29 October 1991, Series A no.
212-A, p. 16, § 36).
On the basis of the above considerations I hold that the national
authorities did not overstep their margin of appreciation
under Article 8 and there has been no procedural violation
in the present case. Consequently, I find no violation of
Article 8 and Article 6 § 1 of the Convention.
1. Note by the Registry. Protocol No. 11 came
into force on 1 November 1998.
1. Note by the Registry. Copies of the report
are obtainable from the Registry.
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