EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25735/94

Egbert Elsholz

against

Germany

REPORT OF THE COMMISSION

(adopted on 1 March 1999)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 ‑ 15) ................................................ 1

A. The application

(paras. 2 ‑ 4) ........................................... 1

B. The proceedings

(paras. 5 ‑ 10) .......................................... 1

C. The present Report

(paras. 11 ‑ 15) ......................................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 ‑ 45) ............................................... 3

A. The particular circumstances of the case

(paras. 16 ‑ 33) ......................................... 3

B. Relevant domestic law

(paras. 34 ‑ 45) ......................................... 5

III. OPINION OF THE COMMISSION

(paras. 46 ‑ 90) ............................................... 9

A. Complaints declared admissible

(para. 46) ..................................................... 9

B. Points at issue

(para. 47) ..................................................... 9

C. As regards Articles 8 and 14 of the Convention

(paras. 48-72) ................................................. 9

a. Article 8, taken in conjunction with Article 14

(paras. 52-69) ................................................ 10

CONCLUSION

(para. 70) .................................................... 12

b. Article 8 taken alone

(para. 71) .................................................... 12

CONCLUSION

(para. 72) .................................................... 12

TABLE OF CONTENTS

Page

D. As regards Article 6 of the Convention

(paras. 73-87) ................................................ 13

CONCLUSION

(para. 87) .................................................... 15

E. Recapitulation

(paras. 88-90) ................................................ 15

DISSENTING OPINION OF MRS. J. LIDDY

JOINED BY SIR NICOLAS BRATZA ....................................... 16

DISSENTING OPINION OF MM S. TRECHSEL, G. JÖRUNDSSON,

A.S. GÖZÜBÜYÜK, J.-C. SOYER, H. DANELIUS, M.P. PELLONPÄÄ,

I. BÉKÉS, K. HERNDL, E. BIELŪNAS AND E.A. ALKEMA ................... 19

APPENDIX : DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION ........................ 21

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a German citizen, born in 1947.  When lodging his application, he was living in Erkrath; he later moved to Hamburg. He was represented by Mr P. Koeppel, a lawyer practising in Munich.

3 . The application is directed against the Federal Republic of Germany. The respondent Government were represented by their Agent, Ms H. Voelskow-Thies, Ministerialdirigentin , of the Federal Ministry of Justice.

4 . The case concerns the applicant's complaints about the refusal of access to his son Carsten and about the alleged unfairness of the proceedings concerned. The applicant invokes Article 8 para. 1, Article 14, in conjunction with Article 8, and Article 6 para. 1 of the Convention.

B. The proceedings

5 . The application was introduced on 31 October 1994 and registered on 21 November 1994.

6 . In February 1996 the First Chamber relinquished jurisdiction in the case to the Plenary Commission. On 9 April 1996 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7 . The Government's observations were submitted on 21 June 1996.  The applicant replied on 18 September 1996.

8 . On 30 June 1997 the Commission declared admissible the applicant's complaints under Article ï€ 8, Article 14, in conjunction with Article 8, and Article 6 of the Convention. It declared inadmissible the remainder of the application.

9 . The text of the Commission's decision on admissibility was sent to the parties on 18 July 1997 and they were invited to submit further information or observations on the merits as they wished.  The applicant filed submissions on 21 September 1997.  The Government submitted no further observations.

10 . After declaring the case admissible, the Commission, acting in accordance with former Article ï€ 28 para. 1 (b) of the Convention [1] , also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

Sir Nicolas BRATZA

I. BÉKÉS

G. RESS

A. PERENIĆ

C. BÃŽRSAN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

12 . The text of this Report was adopted on 1 March 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14 . The Commission's decision on the admissibility of the application is annexed hereto.

15 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16 . The applicant is the father of the child Carsten N., born out of wedlock on 13 December 1986. In a document dated 9 January 1987 he acknowledged paternity and undertook to pay maintenance.  He was regularly paying maintenance.  Between November 1985 and June 1988 the applicant lived with Carsten's mother Monika I.-N., her elder son Christian I. and their common son Carsten.  In summer 1988 Ms. I.-N., together with the two children, moved out of their flat.  After their separation, the applicant continued to see his son regularly until July 1991.  On several occasions, he also spent his holidays with Carsten, Christian and their mother, Ms. I.-N.  Subsequently, no more visits took place.

17 . According to the applicant, Ms. I.-N. prohibited him from having access to Carsten because he had reproached her with neglecting Carsten who had broken his arm in an accident and because he had refused to continue paying more maintenance than due from him.  The Government dispute the applicant's affirmations and submit that Ms. I.-N. was indicated that she had discontinued the contacts between the applicant and Carsten for the sole reason that Carsten did not wish to have further contacts with the applicant.

18 . The applicant attempted to resume contact with Carsten in the form of visits 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, Carsten stated that he did not wish to have contacts with the applicant.

19 . In August 1992 the applicant applied to the Mettmann District Court (Amtsgericht) for a decision granting him a right to visit (Umgangsregelung) Carsten on the first Saturday of every month, between 1 p.m. and 6 p.m.

20 . On 4 December 1992 the District Court (Amtsgericht), after a hearing on 4 November 1992 and having heard Carsten on 9 November 1992, dismissed the applicant's request.  The Court observed that S. 1711 para. 2 of the Civil Code (Bürgerliches Gesetzbuch), concerning the  contact between a father and a child born out of wedlock, was an exceptional provision and therefore was to be interpreted in a narrowly restrictive way. Thus, the competent court should order such contacts 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 Court noted that the child had been heard and had stated that he did not wish to see the 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 communicated to the child so that the child had no possibility of building up an unbiased relationship with his father. Consequently contacts with the father would not further the child's well-being.

21 . On 8 September 1993 the applicant applied to the District Court for an order requiring the child's mother to consent to family therapy for by the applicant and the child and for an order determining his visiting rights, after contacts between them had been successfully resumed.

22 . In its submissions of 24 September 1993 the Erkrath Youth Office recommended that the Court should obtain a psychological expert opinion on the question of opening contact visits.

23 . On 17 December 1993 the District Court, having heard Carsten on 8 December 1993 and his parents at an oral hearing on 15 December 1993, dismissed the applicant's renewed request for visiting rights.

24 . The Court referred to its prior decision of 4 December 1992 and found that the conditions under S. 1711 of the Civil Code were not met.  The Court noted that the applicant's relationship with the child's mother was so strained that the enforcement of visiting 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 Carsten 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 therefore affect his well-being.  The Court added that it was irrelevant which of the parents was responsible for the tensions.  What counted alone was that important tensions existed and that there was a risk that any further contacts would affect the child's undisturbed development in the remainder of his family.  On the basis of two long talks with the child the Court concluded that his development would be endangered if he had to take up contacts with his father contrary to the will of his mother.

25 . The District Court regarded its establishment of the relevant facts as evident and complete for the purposes of S. 1711 of the Civil Code.  It therefore found that it was unnecessary to obtain an expert opinion.  It pointed out that it was not the task of a court-appointed expert to give, at the expense of the Treasury, advice to the parents as to how best to manage their separation. Such advice could be obtained by them on a voluntary basis from a private expert or the Youth Office.

26 . On 13 January 1994 the applicant, represented by counsel, lodged an appeal against the first instance decision, requesting that that decision be quashed, that an expert opinion be obtained on the question of visiting contacts between him and the child and the child's true wishes in this respect and that the applicant's visiting rights be determined accordingly.

27 . On 21 January 1994 the Wuppertal Regional Court (Landgericht), without hearing the applicant, the child and his mother, dismissed the applicant's appeal (Beschwerde).

28 . In its decision, the Regional Court first stated that there were doubts as to the admissibility of the applicant's appeal as he had informed the first instance court by letter of 12 January 1994 that he respected that court's decision and requested help in order to reach a friendly settlement.  Furthermore, his request at first instance did not fully coincide with the grounds of appeal as stated in his appeal submissions.

29 . 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 visiting rights had to be dismissed as it 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, rather they had to be advantageous and beneficial (nützlich und förderlich) and necessary for the child's equilibrium (seelisch notwendig).  The question as to whether these conditions were satisfied or not had to be decided from the viewpoint of the child's situation and taking into account all circumstances in the individual case at issue.  It had to be considered, inter alia, for what reasons the father wished contacts with the child, i.e. whether he had real emotional motives or was motivated by other factors.  In this context the relationship of the parents also had to be taken into account.

30 . The Regional Court concluded, in accordance with the decisions appealed against, that in view of the tensions between the parents which had negative effects on the child as was confirmed by the hearing of the child on 8 December 1993 and 9 November 1992, it was not in the child's interest to have contact with his father and even less so because these contacts had in fact been interrupted for about two and a half years.  It did not matter who was responsible for the breakup of the community life.  What mattered was that in view of the present situation contacts between father and child would negatively affect the latter.  This conclusion, so the Court considered, was obvious and therefore there existed no necessity to obtain a psychological expert opinion.  Moreover, S. 1711 para. 2 of the Civil Code did not provide for  psychological therapy to prepare a child for contacts with his or her father.

31 . The Regional Court finally observed that there had been no necessity to hear the parents and the child again as there was no indication that any findings which would be more favourable for the applicant could result from such a hearing.

32 . On 19 April 1994 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde).

33 . 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 as to whether S. 1711 of the Civil Code was compatible with the right to family life as guaranteed by Article 6 para. 2 of the Basic Law did not arise as the ordinary courts had based the denial of the applicant's request for visiting rights not only on the reason that such a right would not serve the child's well-being but 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.  This decision was served on 6 May 1994.

B. Relevant domestic law

a. Legislation on family matters in force at the material time

34 . The part 'Family Relationship' of the German Civil Code (Bürgerliches Gesetzbuch), as amended in 1969 and 1979, contained different sets of provisions concerning, inter alia, custody and access, for children born in wedlock and children born out of wedlock.

aa. Children born in wedlock

35 . Custody over a minor child born in wedlock is exercised by the child's father and mother (S. ï€ 1626 para. 1 of the Civil Code).

36 . The question of personal contacts with the parent who does not have the right to care and custody was regulated in S. 1634 of the Civil Code, which read as follows:

(Translation)

“(1) A parent not having custody and care has the right to personal contact with the child. The parent not having custody and care and the parent having custody and care must not do anything that harms the child's relationship with others or seriously interferes with the child's upbringing.

(2) The Family Court can determine the scope of that right and can prescribe more specific rules for the exercise thereof, including vis-à-vis third parties; as long as no decision is made, the right under S. 1632 para. 2 of the parent not having custody and care 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 and care who has a legitimate interest in requesting information about the child's personal circumstances may request such information from the person having custody and care in so far as it is in keeping with the child's interests to communicate it.  The Guardianship Court shall rule on any dispute as to the right to information.

(4) Where both parents have custody and care and are not separated merely temporarily, the foregoing provisions shall apply, mutatis mutandis .”

(German)

“(1) Ein Elternteil, dem die Personensorge nicht zusteht, behält die Befugnis zum persönlichen Umgang mit dem Kind.  Der Elternteil, dem die Personensorge nicht zusteht, und der Personensorgeberechtigte haben alles zu unterlassen, was das Verhältnis des Kindes zum anderen beeinträchtigt oder die Erziehung erschwert.

(2) Das Familiengericht kann über den Umfang der Befugnis entscheiden und ihre Ausübung, auch gegenüber Dritten, näher regeln; soweit es keine Bestimmung trifft, übt während der Dauer des Umgangs der nichtsorgeberechtigte Elternteil das Recht nach § 1632 Abs. 2 aus.  Das Familiengericht kann die Befugnis einschränken oder ausschließen, wenn dies zum Wohle des Kindes erforderlich ist.

(3) Steht beiden Eltern die Personensorge zu und leben sie nicht nur vorübergehend getrennt, so gelten die vorstehenden Vorschriften entsprechend.”

bb. Children born out of wedlock

37 . According to S. 1705, custody over a minor child born out of wedlock was exercised by the child's mother.

38 . As regards the father's access to the child, S. 1711 of the Civil Code provided as follows:

(Translation)

“(1) The person having custody and care of the child shall determine contact arrangements with the father.  S. 1634, para. 1, sentence 2 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.  S. 1634 para. 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 S. 1634 para. 3.

(4) Where appropriate, the Youth Office shall mediate between the father and the person having custody and care.”

(German)

(1) Derjenige, dem die Personensorge für das Kind zusteht, bestimmt den Umgang des Kindes mit dem Vater.  § 1634 Abs. 1 Satz 2 gilt entsprechend.

(2) Wenn ein persönlicher Umgang mit dem Vater dem Wohle des Kindes dient, kann das Vormundschaftsgericht entscheiden, daß dem Vater die Befugnis zum persönlichen Umgang zusteht.  Das Vormundschaftsgericht kann seine Entscheidung jederzeit ändern.

(3) Die Befugnis, Auskunft über die persönlichen Verhältnisse des Kindes zu verlangen, bestimmt § 1643 Abs. 3.

(4) In geeigneten Fällen soll das Jugendamt zwichen dem Vater und dem Sorgeberechtigten vermitteln.”

b. New legislation

39 . The relevant legislation has been amended on the basis of the Government Bill of 28 February 1996 on the reform of the law on family matters.  This reform of 1997, which has entered into force on July 1998, envisages a harmonisation of the rules regarding children born in wedlock and children born out of wedlock.

40 . Pursuant to S. 1626a para. 1 of the Civil Code, as amended, 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.

41 . The question of access to a child is regulated irrespective of the child's status. According to S. ï€ 1684 of the Civil Code, as amended, a child is entitled to have access to both parents; each parent is obliged and entitled to have access to the child.  Moreover, the parents must not do anything that harms the child's relationship with the other parent or seriously interferes with the child's upbringing.  The Family Court can determine the scope of the right of access and can prescribe more specific rules for the exercise thereof, including vis-à-vis third parties; and it may order the parties to fulfil their obligations towards the child.  The Family Court can 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 on a definite basis may only be taken if otherwise the child's well-being is endangered.  The Family Court may order that the right of access be exercised in the presence of a third person, possibly an employee of the Youth Office or an association.

c. The Non-Contentious Proceedings Act

42 . Proceedings under the former S. 1711 para. 2 of the Civil Code were, like proceedings in other family matters, governed by the Non-Contentious Proceedings Act (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit).

43 . According to S. 12, the court shall, ex officio , take the investigation measures that are necessary to establish the relevant facts and take the evidence that appears appropriate.

44 . In proceedings regarding access, the competent youth office has to be heard prior to the decision (S. 49 para. 1 (k)).

45 . As regards the hearing of parents in custody proceedings, S. 50a para. 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, parents shall always be heard. According to paragraph 2 of S. 50a, a parent not entitled to custody shall be heard except where the hearing of this person does not appear to contribute to clarification of the matter.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

46 . The Commission has declared admissible the applicant's complaints:

- about a breach of his right to respect for his family life, regarding the refusal of access to his son;

- about discrimination regarding the question of access on account of his position as father of a child born out of wedlock;

- about the alleged unfairness of the proceedings at issue.

B. Points at issue

47 . Accordingly, the points at issue are:

- whether there has been a violation of Article 8 of the Convention;

- whether there has been a violation of Article 14, in conjunction with Article 8, of the Convention;

- whether there has been a violation of Article 6 para. 1 of the Convention.

C. As regards Articles 8 and 14 of the Convention

48 . The applicant complains about the German court decisions dismissing his request for access to his son Carsten.  He claims a violation of his rights under Article 8, both taken alone and in conjunction with Article 14 of the Convention.

49 . Article 8, insofar as relevant,  reads as follows:

“1. Everyone has the right to respect for his private and 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 the rights and freedoms of others.”

50 . Article 14 provides:

“The enjoyment of the rights and freedoms set forth in this 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.”

51 . The Commission notes at the outset that Carsten was born in December 1986 during the applicant's non-marital cohabitation with the mother which broke up about one and a half years later. The applicant continued to have contacts with his son until July 1991 when his son was four and a half years old.  After the refusal, by the mother, of further contacts, he started to have further visits arranged with the assistance of the Youth Office as mediator and in two sets of court proceedings in 1992 and 1993/93, the latter being under consideration in the present application.  The German court decisions refusing the applicant’s request for access therefore constitute an interference with the applicant’s right to respect for his family life and the case thus falls within the ambit of Article ï€ 8.

a. Article 8, taken in conjunction with Article 14

52 . In view of the nature of the allegations made, the Commission considers it appropriate to examine the present case under Article 8 taken in conjunction with Article 14.

53 . The applicant submits that the provision of S. 1711 of the Civil Code on contacts between father and child born out of wedlock discriminate against the father by comparison with the provisions of S. 1634 of the Civil Code relating to contacts between a father and his legitimate child.

54 . The applicant maintains that Article 8 para. 1 should be understood as guaranteeing a general right of access of both parents to their children, which may only be restricted under the conditions set out in paragraph 2 of Article 8.

55 . In the Government's view, neither the statutory regulation of the right of access to children born out of wedlock in itself, nor its application in the applicant's case, discriminated against the applicant in the enjoyment of his right to respect for his family life.

56 . The Government recall the Commission's earlier decisions according to which the provisions of S. 1711 do not entail any discrimination contrary to Article 14 (No. 9588/81, Dec. 15.3.84; No. 9530/81, Dec. 14.5.84; both unpublished).  The considerations that fathers of children born out of wedlock often do not have any interest in contacts with them and may leave a non-marital family at any time, and that it is normally in the child's interest to vest the mother with the custody and access, still apply, even if the number of non-marital families has increased.  S. 1711 para. 2 of the Civil Code strikes a reasonable balance between the competing interests involved in all these cases.  In this context the Government observe that the Bill of 28 February 1996 does not alter this assessment.  Moreover, in the applicant's case, the courts considered that granting a right of access was not in his son's interest and his situation was, therefore, comparable to the position of a father following divorce.

57 . Furthermore, the Government submit that the statutory regulations on the right of access of fathers to their children born out of wedlock do not as such amount to an interference with the rights under Article 8 para. 1. However, they concede that the German court decisions in the applicant's case which were based on this legislation amount to an interference with the applicant's right under Article 8 para. 1.  In particular, referring to the case-law (Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 30 and Keegan v. Ireland judgment of 26 May 1994, Series A no. 290), they submit that the relationship between the applicant and his son Carsten constitutes family life within the meaning of Article 8 para. 1.

58 . Moreover, the Government, having regard to the criteria established in the Court's case-law regarding positive obligations inherent in an effective respect for family life and regarding the justification for interference under Article 8 para. 2 (Marckx v. Belgium judgment, loc. cit.; Johnston v. Ireland judgment of 18 December 1986, Series A no. 112; Keegan v. Ireland judgment, loc. cit.), maintain that the regulations enacted by the German legislator in order to take account of the particular situation of children born out of wedlock fall within the margin of appreciation granted to the Contracting States.

59 . The Government consider in particular 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 para. ï€ 2.  In this respect, the Government submit that the principle guiding the German courts was the child's well-being.  Thus, the refusal of a right of access which could only be implemented by means of compulsion was proportionate to the aim pursued.  In reaching this conclusion, the District Court relied upon the personal impression 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 rights of access contacts and it could not be in a child's best interest to have compulsory mediation regarding the conflicts between the parents.

60 . The Commission recalls that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (cf. Eur. Court HR, Marckx v. Belgium judgment, op. cit., pp. 15-16, paras. 32-34; Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 18, para. 41; Hoffmann v. Austria judgment of 23 June 1993, p. 58, para. ï€ 31; McMichael v. the United Kingdom judgment of 24 February 1995, Series A No. 307-B, p. 58, para. ï€ 97).

61 . According to the case-law of the Convention organs, the members of a de facto family enjoy the guarantees of Article 8 on an equal footing with the members of the traditional family (cf. the Marckx judgment, op. cit., p. 19, para. ï€ 14). The nature of the relationships of natural fathers with their children will inevitably vary, from ignorance and indifference at one end of the spectrum to a close stable relationship indistinguishable from the conventional matrimonial-based family unit at the other. Legislation providing a mechanism for identifying “meritorious” fathers who might be accorded parental rights, thereby protecting the interests of the child and the mother, may therefore be legitimate (cf. McMichael v. the United Kingdom judgment, op. cit., p. 58-59, para. ï€ 98).

62 . In previous decisions dating back to 1984, the Commission, as pointed out by the Government, held that the legislation in question and its application in those cases was compatible with Article 14 (see above paragraph 56).

63 . In the present case, two factors are of decisive importance. First, the applicant, Carsten and his mother as well as the elder son of Carsten’s mother formed a family for a couple of years. Second, the contacts between the family members continued following the termination of cohabitation for a considerable period of time.

64 . The Commission considers that in these circumstances, the general submissions of the respondent Government to justify the distinction between married and unmarried fathers, underlying S. 1711 para. 2 of the Civil Code, fail sufficiently to justify a refusal of access (cf. Keegan v. Ireland judgment, op. cit., p. ï€ 18, para. 45, pp. 20-21, paras. ï€ 54-55 ).

65 . In the instant case, a close and stable relationship had existed between the applicant and his child.  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, is 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.

66 . The Commission has also had regard to the Government’s argument relating to the reasons relied upon by the German courts in dismissing the applicant’s request for access.

67 . It is true that the German courts considered the statements made by Carsten, when questioned by the District Court Judge at the age of about five and six years, respectively.  Moreover, they took the strained relations between the applicant and Carsten’s mother and the possible conflict of loyalty into account. However, the Commission finds that the German courts, as required by S. 1711 para. 2 of the Civil Code, merely determined whether access was in the interest of Carsten. In that respect, the strong objections voiced by Carsten’s mother seemed to have had a strong impact on the German courts’ decisions.

68 . Moreover, the Courts failed to apply a test of necessity of the interference, i.e. failed to examine whether the refusal of access was necessary in the interest of Carsten’s well-being.  In this respect, the present case is distinguishable from other cases where the domestic courts had reached the conclusion that the refusal of access was required by the interests of the child after having obtained a detailed report by the social services (No. 12495/86, Dec. 23.9.94, D.R. 54, p. 187) or statements of doctors and the social services (No. 24671/94, Dec. 12.4.96), respectively.

69 . Having regard to all material before it, the Commission finds that no reasonable relationship of proportionality existed between the means employed and the aim pursued.

CONCLUSION

70 . The Commission concludes, by 15 votes to 12, that in the present case there has been a violation of Article 8 taken in conjunction with Article 14 of the Convention.

b. Article 8 taken alone

71 . In view of the conclusion reached in paragraph 70 above, the Court does not consider it necessary to decide on the allegation of a violation of Article 8 taken alone.  The arguments advanced in this respect are in any case the same as those examined in respect of Article 8 taken in conjunction with Article 14.

CONCLUSION

72 . The Commission concludes, by 15 votes to 12, that no separate issue arises as regards Article 8 taken alone.

D. As regards Article 6 of the Convention

73 . The applicant further complains under Article 6 of the Convention about the alleged unfairness of the proceedings in question, in particular about the courts' failure to take expert psychological advice and about the lack of a hearing before the Regional Court.

Article 6 para. 1, as far as relevant, provides as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

74 . The applicant contends that the refusal of an expert opinion and the absence of a hearing by the Regional Court deprived him of the opportunity of showing that the refusal of access was contrary to his son's interests.

75 . The Government submit that the applicant had been heard at first instance and that his right to a hearing by the Regional Court was satisfied in that that Court took cognisance of his written appeal submissions.  Moreover, the courts had a discretion in assessing 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 whether the applicant's access to Carsten was in the interest of the child. Furthermore, taking into account that the District Court had questioned Carsten only one month prior to the Regional Court decision and that there was a detailed note on this hearing in the file, the Regional Court was not required to hear Carsten again.

a. The Mettmann District Court

76 . The Commission recalls that the effect of Article 6 para. 1 is, inter alia , to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (cf. Eur. Court HR, Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 21, para. ï€ 66; Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 19, para. ï€ 59). It has to be determined whether this condition was satisfied in the present case.

77 . The Commission notes that the Mettmann District Court heard Carsten prior to its decision of 17 December 1993, refusing the applicant’s request for access.  The Court had already questioned the child in the context of the preceding set of access proceedings in 1992.  In the 1993 proceedings, the District Court regarded its establishment of the relevant facts as evident and complete for the purposes of S. 1711 of the Civil Code.  It therefore found that it was unnecessary to obtain an expert opinion.  The preparation of such a psychological expert opinion had in fact been recommended by the Erkrath Youth Office which participated in the proceedings.

78 . In this context, the Commission has kept in mind that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care.  However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights and 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 are effectively curtailed (cf. Eur. Court HR, Johansen v. Norway judgment of 27 June 1996, Reports of Judgments and Decisions 1996-III, p. 1004, para. ï€ 64).

79 . The Commission notes that the Mettmann District Court heard not only the applicant and the child’s mother.  It also questioned Carsten, as it had done in the previous set of access proceedings. However, at no stage of these proceedings, had expert evidence been obtained on the question of contacts between the applicant and Carsten. The District Court’s decision refusing the preparation of an expert opinion reflects its general approach to the access issue under S. 1711 of the Civil Code, namely to allow access only if it were beneficial for Carsten.  It is true that the District Court had the benefit of direct contact with all persons concerned including Carsten.  Nevertheless, the child’s very young age and the recommendation of the competent Youth Office would have called for such a procedural step.  In these circumstances, the Commission considers that the District Court’s reasons, as stated in its decision of 17 December 1993, are not sufficient to explain why expert evidence was not been necessary to complete the establishment of all relevant facts. Rather, the District Court referred to considerations regarding the relationship between Carsten’s parents which were not pertinent for the question of whether the applicant should have access to Carsten.

80 . In the Commission’s view, the fairness of the District Court proceedings was adversely affected by its decision not to have an expert opinion prepared.

81 . Moreover, taking into account the importance of the subject matter as well as the fact that the case was adjudged at first instance by a single judge, the Regional Court should not merely have relied on the file and the written appeal submissions.

b. The Wuppertal Regional Court

82 . The Commission recalls that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (cf . Eur. Court HR, Szücs and Werner v. Austria judgments of 24 November 1997, Reports 1997-VII, p. 2481, para. 45, and p. 2510, para. 45).

83 . Provided that there has been a public hearing at first instance, as in the present case, the absence of "public hearings" at a court of second or third instance may be justified by the special features of the proceedings at issue (cf. Eur. Court HR, Bulut v. Austria judgment of 22 February 1996, Reports 1996-II, p. 358, para. 41 with further references).

84 . In the present case, the Regional Court had full power to review all issues relating to the request for access. 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 determine the access accordingly.

85 . The Commission finds that the applicant’s appeal submissions went to the merits of the case and raised serious questions as to the proper establishment of all relevant facts.  Taking also into account what was at stake for the applicant, namely his right of contact with his child and the importance of a personal appearance of the persons concerned, the Commission considers that this issue could not, as a matter of fair hearing, have been properly decided by the Regional Court on the basis of the files without a direct assessment of the evidence given in person by the applicant, Carsten and his mother.  In particular, as regards Carsten, the Regional Court was aware that it did not have the advantage of psychological expert evidence in order to evaluate the child’s statements.

c. The proceedings as a whole

86 . Having regard to the lack of psychological expert evidence and the fact that the Regional Court did not conduct a further hearing in presence of in particular the applicant, the Commission considers 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.

CONCLUSION

87 . The Commission concludes, by 17 votes to 10, that in the present case there has been a violation of Article 6 of the Convention.

E. Recapitulation

88 . The Commission concludes, by 15 votes to 12, that in the present case there has been a violation of Article 8 taken in conjunction with Article 14 of the Convention (see above para. 70).

89 . The Commission concludes, by 15 votes to 12, that no separate issue arises as regards Article 8 taken alone (see above para. 72).

90 . The Commission concludes, by 17 votes to 10, that in the present case there has been a violation of Article 6 of the Convention (see above para. 87).

         M.-T. SCHOEPFER                                                        S. TRECHSEL

                 Secretary                                                                       President

          to the Commission                                                      of the Commission

(Or. English)

DISSENTING OPINION OF MRS J. LIDDY

JOINED BY SIR NICOLAS BRATZA

As to Article 14 in conjunction with Article 8

The applicant submits that S. 1711 of the Civil Code discriminates against him as an unmarried father. Under S. 1711 he could only have personal contacts with the child if it was in the child’s interests. In the case of a married father S. 1634 provided a right to personal contact unless the child’s welfare otherwise requires.

There was therefore a presumption in law that contact be awarded to a father if he had been married to the mother but merely a possibility of contact if he had not married the mother.

This presumption probably reflected an underlying presumption that parents who had made a marriage commitment had manifested a certain commitment towards the child. It has been replaced by a 1997 reform apparently based on the presumption that it is in the child’s interest to have access to both parents, regardless of marital status.

The Convention issue is not whether S. 1711 made an unjustifiable distinction between married and unmarried fathers such as to be discriminatory within the meaning of Article 14. The issue, rather, is whether its application in the present case led to discriminatory treatment.

The present dispute centres around access rights only under S. 1711. In looking at this aspect the Constitutional Court stated that the ordinary courts had applied the test that the child’s welfare required denial of contact to the father, that is, they had applied the same test as would have been applied to a married father.

This finding is not true of the District Court’s reasoning of 4 December 1992 which clearly required the applicant to prove that contact could be shown to be advantageous to the child. However, its 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. In other words, risk to the child’s welfare was the paramount consideration. There is nothing to indicate that similar decisions would not be and have not been taken in comparable conflicts between married parents.

The Regional Court, on appeal, without a hearing, based its decision of 21 January 1994 on the finding that contacts would negatively affect the child. Again, the application of S. 1711 does not appear to have led to a different result than would have ensued in the case of a married couple.

In these circumstances it is not necessary to explore whether, as might be inferred from paragraph 61 of the Report, the Court in the Marckx judgment (13 June 1979, Series A no. 30) can be regarded as indicating that the members of a de facto family can in all circumstances be treated identically with members of the traditional family (see, a contrario , X, Y and Z v. United Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions 1997 - II) or whether, as found by the Commission in Application No. 9639/82, B., R. and J. v. Federal Republic of Germany, Dec. 15 March 1984 (D. R. 36, p. 130) and Application No. 11089/84, Lindsay v. the United Kingdom, Dec. 11 November 1986, (D. R. 49, p. 181), differences in treatment and legal regime may be justified.

In sum, while the amendment of German law in 1997 to place more explicit emphasis on the general rights of the child rather than of the parents may have been prompted by inequity in other cases as well as by developments in thinking at international level, it cannot be said that on the facts of the present case the outcome discriminated against the applicant by comparison with what might have happened in the case of a married father. There has accordingly been no violation of Article 14 in conjunction with Article 8.

As to Article 8 taken alone

The only separate issue which arises under Article 8 taken alone is whether the interference with the applicant’s rights can be regarded as necessary when account is taken of the absence of a hearing before the Regional Court and of the refusal of the District Court to obtain a psychological expert opinion as had been recommended by the Youth Office. The District Court itself heard the child on two occasions and the question arises as to whether its experience in family law was such as to render unnecessary such independent expert opinion on the child’s state of mind. The Regional Court decided solely on the basis of the files.

In the W. v. the United Kingdom judgment of 8 July 1987 (Series A no. 121), the Court said “What....has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will be a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as necessary within the meaning of Article 8”. The same considerations appear to be applicable to disputes between parents as distinct from with a public authority (cf. mutatis mutandis , Hoffmann v. Austria judgment of 23 June 1993, Series A no. 255).

Even if the District Court was in a position to evaluate adequately the child’s state of mind without recourse to an expert independent opinion, an opportunity should have been granted to the applicant to comment on the detailed basis for that Court’s evaluation. In the particular circumstances of this case, the combination of the refusal to order an independent psychological report or to provide details of the basis for the Court’s evaluation and the applicant’s inability to present arguments on any such report or evaluation at a hearing before the Regional Court had a particularly adverse effect on his interests because access had originally been refused to him by reason of the mother’s objections to him which she 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. There has accordingly been a violation of Article 8.

As to Article 6

The foregoing considerations also lead to a finding of a violation of Article 6. Moreover, the special features of the proceedings at issue are not such as to justify the absence of a “hearing” (even one that would be held in camera, if the interests of the child so warranted) at second instance such as to enable the Regional Court to make a direct assessment  of any evidence the applicant wished to give in person. There has therefore been a violation of Article 6  paragraph 1.

(Orig. English)

DISSENTING OPINION OF MM S. TRECHSEL, G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK, J.-C. SOYER, H. DANELIUS, M.P. PELLONPÄÄ, I. BÉKÉS,

K. HERNDL, E. BIELŪNAS AND E.A. ALKEMA

We have voted against the finding of a violation of Article 8 taken in conjunction with Article 14.

We could agree with the majority that “the general submissions of the respondent Government to justify the distinction between married and unmarried fathers, underlying S. 1711 para. 2 of the Civil Code, fail sufficiently to justify a refusal of access” (para. 64). However, it does not seem that the case was actually decided on the basis of any general distinction made in law between married and unmarried fathers. The District Court rather came, after also having heard the child, to the conclusion that the enforcement of visiting rights would not only fail to serve the interests of the latter’s well-being and but would also affect his undisturbed development in the remainder of his family. The Regional Court equally held that contacts between the applicant and the child would negatively affect the latter. In our view the applicant has not shown that, in a parallel situation, a married father would have been treated more favourably. Therefore, there has been no discrimination.

In view of the above conclusion we also need to examine Article 8 taken alone. We do not, however, find any violation on this count either. The decisions of the courts show that the reasons for the interference with the applicant’s family life were sufficient and relevant. Also the decision-making process was such as to make it possible for the applicant to be sufficiently involved (cf. Eur. Court HR, W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 28, paras. 62-63).  In this regard we note 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 to the Regional Court.

In our view there has been no violation of Article 6 either. The District Court not only heard the applicant and the child’s mother but also questioned the child, as it had done in the previous set of access proceedings. It is true that no expert evidence had been obtained on the question of contacts between the applicant and the child. However, it must be borne in mind that the District Court had the benefit of direct contact with all persons concerned including the child. It could, therefore, reasonably judge whether the child’s young age and the recommendation of the competent Youth Office gave cause for such a procedural step which, no doubt, would have resulted in additional stress for the child.

Moreover, the Commission considers that the District Court’s reasons, as stated in its decision of 17 December 1993, sufficiently explain that expert evidence had not been necessary to complete the establishment of all relevant facts. The District Court’s supplementary considerations regarding the tasks of court-appointed experts were not decisive for its decision. In view of this and taking into account the margin of appreciation of the domestic courts, the decision not to have an expert opinion prepared did not affect the fairness of the District Court proceedings. The same applies to the proceedings before the Regional Court in so far it concerns the question of an expert opinion.

As to the lack of an oral hearing before the last-mentioned court, it is recalled that the absence of public hearings at a second or third instance court may be justified, provided that there has been a public hearing at first instance (cf. Bulut v. Austria judgment, loc.cit., p. 358, para. 41).

In the present case the Regional Court noted the strained relationship between the applicant and the child’s mother, a matter which was not in dispute between the parties to the access proceedings. In these circumstances, the appeal, even taking into account what was at stake for the applicant, namely his right of contact with the child, could be decided on the basis of the case-file despite the fact that the applicant’s appeal submissions went to the merits of the case and raised questions as to the establishment of all relevant facts.  In this respect, we also note that, when the Regional Court took its decision, the last questioning of the child by the District Court had taken place less than two months earlier. We further note that the Regional Court explained the reasons for its decision not to hold an oral hearing.

In our view, the Regional Court could, as a matter of fair hearing, properly decide to examine the appeal without the applicant having a right to present his arguments at a public hearing and also without a direct assessment of the evidence given in person by the child and his mother.

Having also regard to the entirety of the proceedings before the Mettmann District Court and the Wuppertal Regional Court, we find that the procedure followed satisfied the requirements of a fair and public hearing.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.