Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33340/96

by Dirk DE MAN

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 June 1996 by

Dirk DE MAN against the Netherlands and registered on 4 October 1996

under file No. 33340/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1951, and resides in

Oud-Beijerland, the Netherlands. He is represented by

Mr P.J.A. Prinsen, a lawyer practising in The Hague.

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

summarised as follows.

a. Particular circumstances of the present case

The applicant is the father of four children, born in 1979, 1983,

1986 and 1987 respectively. In May 1990, he divorced the children's

mother. In its decision of 5 July 1990, the Regional Court

(Arrondissementsrechtbank) of Dordrecht appointed the mother as

guardian (voogdes) and the applicant as supervisory guardian (toeziend

voogd). The Regional Court further determined an access arrangement.

As the applicant considered that the children's mother was

frustrating the access arrangement, the applicant requested the

Regional Court on 3 November 1993 to appoint him as guardian and the

mother as supervisory guardian.

On 15 November 1993, the oldest child was heard in connection

with the requested change of guardianship and the access arrangement.

The parents were heard on 18 November 1993. The Regional Court

adjourned its further examination and requested the Child Welfare

Council (Raad voor de Kinderbescherming) to carry out an investigation

and to submit its advice. On 29 April 1994, the Child Welfare Council

submitted its Report to the Regional Court and, on 27 May 1994, advised

the Regional Court to reject the request to change the guardianship and

to further examine the access arrangement.

By decision of 12 August 1994, the Regional Court rejected the

applicant's request to be appointed guardian. It held that it had not

appeared that the children were unhappy with their mother or that her

care and education were unsatisfactory. As both parents had indicated

having problems with the access arrangement in force, the Regional

Court decided to amend the access arrangement it had determined on

5 July 1990 and established a provisional access arrangement pending

an evaluation of the latter arrangement and an investigation by the

Child Welfare Council.

The applicant's appeal against the refusal to appoint him

guardian was rejected by the Court of Appeal (Gerechtshof) of The Hague

on 31 March 1995. The Court of Appeal accepted the findings of the

Regional Court and, noting that the applicant had not submitted any

concrete arguments on grounds of which the guardianship should be

altered, held that it had not appeared that such a change would be in

the children's interest. Consequently, it confirmed the Regional

Court's decision of 12 August 1994. The applicant's subsequent appeal

in cassation against the decision of 31 March 1995 was rejected by the

Supreme Court (Hoge Raad) on 15 December 1995.

As to the access arrangement, the Child Welfare Council submitted

its Report to the Regional Court on 17 October 1994 and its advice in

this matter on 18 November 1994.

On 13 January 1995, the Regional Court rejected the applicant's

request to determine an access arrangement and lifted the provisional

access arrangement of 12 August 1994. The Regional Court did order the

mother to inform the applicant of the children's school results and to

ensure that the children would write him on a regular basis.

The applicant filed an appeal against this decision with the

Court of Appeal. Following a hearing held on 1 March 1995 in the course

of which the two eldest children were heard in the judges' Chambers,

the Court of Appeal, in separate proceedings, rejected the appeal on

31 March 1995 and upheld the decision of 31 March 1995.

The Court of Appeal noted that, on the basis of the provisional

access arrangement, all children had visited the applicant on two

occasions and on one further occasion only the youngest two and that,

subsequently, the children clearly indicated to the applicant that they

did not wish to visit him any more.

The Court of Appeal further noted that, upon the children's

request, a conversation between the children and their father had taken

place on the premises of the Child Welfare Council in the course of

which the children indicated that their father was burdening them too

much with problems about the divorce and that, for that reason, they

did not wish to have any contacts and that, if they wished to resume

contacts, they themselves would take the initiative. The Court of

Appeal finally noted that the oldest child wrote the applicant again

and that the mother considered that it was in the children's interest

to have contacts with their father but that the children themselves

should take the initiative for such contacts.

The Court of Appeal held that the applicant's attitude, i.e. on

the one hand indicating a wish to respect the decision of the children

to cease the contacts and, on the other, expecting them nevertheless

to visit him, was confusing the children and found this to be

detrimental to the children's development. It concluded that it would

be contrary to the children's interest to determine an access

arrangement.

The applicant's appeal in cassation against the decision of

31 March 1995 was rejected by the Supreme Court on 15 December 1995.

b. Relevant domestic law

Article 1:327 para. 1 of the Civil Code (Burgerlijk Wetboek),

insofar as relevant, reads:

"Where a court considers it necessary in the interest of the

minors concerned it can deprive a guardian of the guardianship

over one or more minors falling under that guardianship on

grounds of:

a. bad conduct in life;

b. abuse of his authority, neglect in his obligations, or the

fact that he is not capable of properly exercising his

guardianship;

..."

Article 1:329 para. 1 of the Civil Code states as follows:

"Deprivation of guardianship can only be pronounced at the

request of the guardian, one of the minor's relatives up to and

including the fourth degree, the Child Welfare Council, or at the

request of the public prosecution department."

Article 1:377a of the Civil Code, insofar as relevant, provides

as follows:

"1. The child and the parent who has not been awarded

guardianship have the right to have contacts with each other.

2. On request of the parents or one of them, the judge shall

determine an arrangement for the exercise of the right to have

contacts, either for an indefinite or a determined period of

time, or shall deny, either for an indefinite or a determined

period of time, the right to have contacts.

3. The judge shall deny the right to have contacts only,

where:

a. contacts would result in serious harm to the mental or

physical development of the child, or

b. the parent is apparently unsuitable or must be considered as

apparently incapable of having contacts, or

c. the child of twelve years or older, when heard, has expressed

serious objections against contacts with his parent, or

d. contacts are otherwise contrary to weighty interests of the

child."

COMPLAINTS

1. The applicant complains that the decision refusing transfer of

the guardianship of his children to him and the decision not to

determine an access arrangement are contrary to his rights under

Article 8 of the Convention.

2. The applicant further complains under Article 6 of the Convention

that not only his request to have the guardianship transferred to him

was rejected, but even the existing access arrangement was revoked

arbitrarily and in a procedure characterised by arbitrariness.

THE LAW

1. The applicant complains that the decision refusing transfer of

the guardianship of his children to him and the decision not to

determine an access arrangement are contrary to his rights under

Article 8 (Art. 8) of the Convention.

Article 8 (Art. 8) of the Convention, insofar as relevant, reads:

"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."

The Commission recalls that the mutual enjoyment by parent and

child of each other's company constitutes a fundamental element of

family life and that domestic measures hindering such enjoyment amount

to an interference with this right protected by Article 8 (Art. 8) of

the Convention (cf. Eur. Court HR, Johansen v. Norway judgment of

7 August 1996, Reports 1996-III, no. 13, p. 1001, para. 52).

It must therefore be examined whether the interference with the

applicant's right to respect for his family life within the meaning of

Article 8 para. 1 (Art. 8-1) of the Convention can be regarded as

justified under paragraph 2 of this provision, i.e. whether the

interference was "in accordance with the law", whether it pursued one

or more of the legitimate aims set out in Article 8 para. 2 (Art. 8-2)

and whether it can be regarded as "necessary in a democratic society".

After having considered the reasons given by the domestic courts

for their decisions at issue in the light of the relevant provisions

of Dutch law, the Commission finds no indication that these decisions

were not taken "in accordance with the law" within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention.

As regards the legitimate aim, the Commission observes that the

relevant domestic law was clearly intended to protect the interests of

children and finds nothing suggesting that in the present case it was

applied for any other purpose. The Commission, therefore, concludes

that the decisions at issue were aimed at protecting the "health" and

"rights and freedoms" of the applicant's children and thus pursued

legitimate aims within the meaning of Article 8 para. 2 (Art. 8-2) of

the Convention.

What remains to be examined is whether the interference was

necessary in a democratic society for the protection of the interests

of the applicant's children. In this examination the task of the

Convention organs is not to substitute their own judgment for that of

the competent domestic courts. Their function is to consider whether,

in the light of the case as a whole, the reasons adduced to justify the

impugned measures were relevant and sufficient for the purposes of

Article 8 (Art. 8) of the Convention (cf. Eur. Court HR, Johansen v.

Norway judgment, loc. cit. p. 1003, para. 64).

In the present case, the Commission finds that the domestic

courts carefully considered the applicant's request for a transfer of

the guardianship and the problems in respect of the access arrangement.

As regards the requested change of guardianship, the domestic

courts found that it had not appeared that such a change would be in

the children's interest. As to the access arrangement, the domestic

courts came to the conclusion, on the basis of the children's own

indications that, at least for the time being, they did not wish to

have any contacts with their father, and that it would be contrary to

the children's interest to determine an access arrangement.

In these circumstances, the Commission is satisfied that the

decision not to transfer the guardianship to the applicant and the

decision not to determine an access arrangement were required by the

interests of the applicant's children and that the domestic courts,

when so deciding, did not go beyond their discretionary power.

The Commission has not overlooked the applicant's situation. The

absence of contacts with one's children may cause considerable

suffering to the non-custodial parent. However, where, as in the

present case, there is a conflict between the interests of the children

and one of their parents which can only be resolved to the disadvantage

of either the children or the parent concerned, the interests of the

children must under Article 8 (Art. 8) of the Convention prevail.

The Commission concludes, therefore, that the interference with

the applicant's right to respect for his family life was justified

under Article 8 para. 2 (Art. 8-2) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains under Article 6 (Art. 6) of the

Convention that not only his request to have the guardianship

transferred to him was rejected, but even the existing access

arrangement was revoked arbitrarily and in a procedure characterised

by arbitrariness.

Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

"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. ..."

The Commission notes that the decisions in the present case were

taken following adversarial proceedings at three levels and that the

views of the parents and the children and the advice of the Child

Welfare Council were obtained before the trial courts reached their

decisions at issue. The Commission finds no indication that the

applicant's rights under Article 6 (Art. 6) of the Convention have been

infringed in these proceedings or that the courts acted unreasonably

or arbitrarily.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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DE MAN V. THE NETHERLANDS

DE MAN V. THE NETHERLANDS

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