Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28422/95

by Peter HOPPE

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 14 January 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, 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 27 July 1995 by

Peter HOPPE against Germany and registered on 4 September 1995 under

file No. 28422/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

8 October 1996, the observations in reply submitted by the

applicant on 18 December 1996 and his further submissions on

3 March, 29 April and 23 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1957, is a German national and resident

in Wuppertal.

A. Particular circumstances of the case

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

a) Factual background

In December 1992 the applicant and his wife separated. The

spouses' daughter Svenja, born in wedlock in April 1990, stayed with

her mother. In 1994 the applicant's wife instituted divorce

proceedings before the Wuppertal District Court (Amtsgericht), claiming

that the marriage had broken down. She requested that custody of

Svenja be granted to her. The applicant requested that custody should

be exercised by both parents. Furthermore, the applicant requested

that his right of access to Svenja be determined by court decision.

In these and the related proceedings, both spouses were represented by

counsel.

b) The applicant's right of access

On 19 October 1994 the Wuppertal District Court, following

hearings on 22 June and 17 October 1994, decided that the applicant was

entitled to see Svenja every second Saturday as well as on Boxing Day,

Easter Monday and Whit Monday. The District Court referred to S. 1634

of the Civil Code (Bürgerliches Gesetzbuch).

In its decision, the Court noted that the applicant had

previously seen Svenja twice a week, until her mother, on account of

Svenja's behaviour, had reduced their contacts. Thereupon, the

applicant had requested a right of access during one day at the week-

end and between Wednesday afternoon and Thursday morning. Svenja's

mother had agreed to a right of access every second Saturday. The

Court found that, having due regard to the child's well-being, the

applicant's right to see Svenja had to be arranged accordingly so that

they could preserve their relationship.

As regards the frequency of visits, the Court noted that all

experts heard in the proceedings, i.e. the psychological expert (report

of 14 June 1994), the therapeutic pedagogue and a social worker of the

Barmen Diaconate Institution (Diakonisches Werk), had stated that the

four-year-old child was exposed to a conflict of loyalty, which she

experienced as a strong pressure, and that she could not cope with this

situation. While it was true that Svenja was fond of the applicant and

would be in a position to see him without fear if her parents managed

to create an atmosphere which took the pressure off her, they had not

been able to do so. The frequency of visits as requested by the

applicant could not, for the time being, be handled by Svenja. It

appeared that the applicant, for personal reasons, could not agree to

a limited access. Moreover, Svenja's mother had not yet managed to

give her such a feeling of security as to permit Svenja to visit the

applicant without feelings of fear. Svenja therefore needed the

intervals of two weeks as times of rest in her mother's household.

On 4 November 1994 the applicant lodged an appeal with the

Düsseldorf Court of Appeal (Oberlandesgericht).

On 24 November 1994 the Court of Appeal informed the parties of

its intention to decide in a written procedure. The applicant stated

his preference for an oral hearing.

On 9 March 1995 the Düsseldorf Court of Appeal granted the

parties legal aid for the purposes of the applicant's appeal

proceedings against the decision on his right of access. Moreover,

upon the applicant's appeal, the Court of Appeal amended the District

Court's decision to the effect that every first visiting weekend per

month the applicant was entitled to see Svenja from Saturday morning

until Sunday evening. The remainder of his appeal was dismissed.

The Court of Appeal confirmed the findings of the District Court

according to which a regular visit every second week best suited the

child's well-being. In this respect, the Court of Appeal had

particular regard to the parents' controversial relations and their

impact on the child. Thus the parents were not yet in a position to

have a calm discussion on questions relating to the right of access.

Lately, on 21 February 1995, the attempt of a conversation between the

parents at the Parents Counselling Service (Elternberatungsstelle) of

the local Youth Office (Jugendamt) had failed. As long as there was

no agreement between the parents, any visit was an emotional strain for

the child. The applicant's right of access had to be arranged in view

of the continuing conflict between the parents.

In the particular circumstances, the regular visits as decided

upon by the District Court best suited both the applicant's wishes as

well as the child's well-being. In this respect, the Court of Appeal

noted that the exercise of this right of access had functioned well

since October 1994. In particular, the child had meanwhile calmed down

and her sleep was no longer troubled. The Court of Appeal, in

agreement with the parties, further considered the report, dated

19 January 1995, of a social worker of the Elberfeld Diaconate

Institution, which had been obtained in the context of the parallel

custody proceedings. According to this report, particularities in

Svenja's behaviour had no longer been observed. The Court of Appeal

found that this encouraging development did not yet allow for a

significant extension of the applicant's right of access. However,

taking a cautious approach, the visit on the first weekend of every

month could be extended to include one stay over night. Having regard

to the psychological expert opinion of 14 June 1994, the objections

previously raised by Svenja's mother were no longer valid. Should she

experience any problems, she would have to see to it that Svenja came

to regard the visits with a stay over night as a usual matter. Any

further contacts, including a stay over night between every Wednesday

and Thursday, routine telephone conversations and common holidays, were

not yet possible, but could be envisaged in case that the then decision

on access proved successful.

On 13 June 1995 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde).

The Constitutional Court considered that the applicant's

complaint did not raise any issue of fundamental importance. In

accordance with the case-law of the Constitutional Court, both the

right of access of a parent not entitled to custody as well as the

right of custody of the other parent were protected by the right to

respect for family life under the Basic Law (Grundgesetz). The

possibility, pursuant to S. 1634 para. 2 of the Civil Code, to limit

or exclude the right of access, if necessary for the child's well-

being, ensured that the courts' decisions on the matter were based on

the child's well-being.

Furthermore, the Constitutional Court found that the Court of

Appeal's decision did not disclose any fundamentally wrong views on

parental rights. Thus, the Court of Appeal had considered the child's

well-being in the circumstances of the instant case. The reasoned

decision that the visits could only slowly be extended could not be

objected to from a constitutional point of view. There was no

indication that the procedural requirements were not met. In

particular, the applicant had not shown that, following the failure of

a conversation between the former spouses at the Parents Counselling

Service, the Court of Appeal could not reach the conclusion that a

fresh hearing would not permit any new findings.

On 3 April 1996 the Wuppertal District Court amended the

decisions on the applicant's right of access to the effect that he was

entitled to see his daughter every second weekend between Saturday

morning and Sunday evening and also for a period of two weeks of summer

holidays.

c) The custody proceedings

On 24 October 1994 the Wuppertal District Court, following an

oral hearing on 17 October 1994, granted a divorce and transferred

custody of Svenja to her mother.

The Court, referring to S. 1671 of the Civil Code, found that its

decision on custody was, for the time being, in the child's best

interest. In this respect, the Court, having regard to the statements

of the psychological expert in the proceedings regarding the

applicant's right of access, noted that Svenja's mother lovingly

educated her and was only interested in Svenja's well-being.

As to the applicant's request for joint custody, the Court

considered that the conditions for joint custody were not met. In

particular, the parents' relations with each other regarding Svenja,

as well as the relations with Svenja were not free of conflicts. The

applicant did not accept that Svenja's living situation had changed

following her parents' separation and found that, as a four-year-old

child, she needed a stable conduct of life without being torn between

different apartments and different styles of education. The Court

noted the applicant's interest in Svenja's well-being and his efforts;

however, he failed to see that his wishes obstructed Svenja's

psychological development.

On 12 December 1994 the applicant lodged an appeal with the

Düsseldorf Court of Appeal.

On 15 December 1994 the Court of Appeal requested Svenja's mother

as well as the competent Youth Office to comment on the applicant's

appeal submissions. On 19 January 1995 the Elberfeld Diaconate

Institution, upon the instructions of the competent Youth Office,

submitted its report. The parties were given the opportunity to

comment upon the said report in writing. The applicant stated his

preference for an oral hearing.

On 9 March 1995 the Düsseldorf Court of Appeal dismissed the

applicant's request for free legal aid for the purposes of appeal

proceedings against the District Court's decision of 24 October 1994,

and dismissed the applicant's appeal in this respect.

The Court of Appeal observed that, following a divorce, parents

could only have joint custody if they were willing to cooperate in this

respect. However, Svenja's mother was not prepared to do so. In the

proceedings regarding the applicant's right of access, which had been

pending since March 1993, the parents had continuously had major

disagreements, and the attempt of a conversation at the Parents

Counselling Service had finally failed in February 1995. Custody

could, therefore, only be exercised by one of the parents, in this case

the child's mother. While the applicant had requested that, in the

alternative, custody be granted to him, he had not raised any serious

objections to the District Court's reasoning.

The Court of Appeal also considered that it could decide on the

basis of the case-file without an oral hearing with the parties being

necessary.

On 13 June 1995 the Federal Constitutional Court refused to admit

the applicant's constitutional complaint.

The Constitutional Court considered that the applicant's

complaint did not raise any issue of fundamental importance. In this

respect the Constitutional Court recalled that when courts had to

decide on the transfer of custody following the parents' divorce, they

had to balance the positions of both parents without encroaching upon

the parental priority in educational matters. In such cases, the

courts were not, therefore, subject to the strict conditions in respect

of interferences with parental rights. The legislator and, in

application of the relevant legal provisions, the courts were entitled

to transfer the main responsibility for the education of a child to one

parent, if the conditions for joint custody were not met. Furthermore,

the Constitutional Court found that the Court of Appeal's view that the

conditions for granting joint custody were not met in the instant case

could not be objected to from a constitutional point of view.

Moreover, there was nothing to show that the Court of Appeal should

have conducted any further inquiries.

B. Relevant domestic law and practice

S. 1634 paras. 1 and 2 of the Civil Code, as far as relevant,

provide as follows:

"(1) A parent who is not entitled to custody has the right of

access to the child. ...

(2) The competent (family court) may decide on the extent of the

right of access and its implementation, ... The court may limit

or exclude the right of access if this is necessary in the

interest of the child's well-being."

S. 1671 paras. 1 and 2 of the Civil Code provide as follows:

"(1) In case of the parents' divorce the competent court

(Familiengericht) decides on which parent should have the right

to custody over a common child.

(2) The court takes the decision which is in the interest of

the child's well-being; the child's bonds, especially to its

parents and brothers and sisters, are to be considered."

In a decision of 3 November 1982, the Federal Constitutional

Court declared unconstitutional paragraph 4, first sentence, of

S. 1671, according to which the right to custody had to be transferred

to one of the parents in case of divorce. The Constitutional Court

considered that a joint right to custody was possible in case of

divorce if there was a common proposal by the parents to this effect,

showing their willingness to share the responsibility for their child

after their divorce.

COMPLAINTS

1. The applicant complains, in his own name and also on behalf of

his daughter, that the German court decisions determining his right of

access to his daughter violated their right to respect for their family

life, as guaranteed by Article 8 para. 1 of the Convention. He

considers that extensive contacts as requested by him are in the

interest of his daughter and were only refused because of the negative

attitude of Svenja's mother. He also complains that the courts did not

fully establish the relevant facts necessary for a decision on his

right of access. He submits in particular that the Court of Appeal did

not hear the parties and an expert, although he had requested such a

hearing.

2. The applicant complains under Article 14 taken in conjunction

with Article 8 of the Convention that the German courts, in accepting

the negative attitude of Svenja's mother, discriminated against him as

Svenja's father.

3. The applicant also complains under Article 6 para. 1 of the

Convention that the proceedings regarding his right of access were

unfair.

4. Moreover, the applicant complains that the German court decisions

granting custody of his daughter to his former wife and thereby

refusing his request for joint custody violated his and Svenja's right

to respect for their family life, as guaranteed by Article 8 para. 1

of the Convention. He considers that a common proposal by the divorced

spouses should not be a condition for the granting of joint custody

after divorce. He also complains that the courts did not fully

establish the relevant facts necessary for a decision on the custody

matter. He submits in particular that the Court of Appeal did not hear

the parties and an expert, although he had requested such a hearing.

5. The applicant complains under Article 14 taken in conjunction

with Article 8 of the Convention that the German courts, in requiring

a common proposal of the parents, discriminate against one of the

divorced spouses.

6. The applicant also complains under Article 6 para. 1 of the

Convention that the custody proceedings were unfair.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 July and registered on

4 September 1995.

On 26 June 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

8 October 1996. The applicant replied on 18 December 1996. He made

further submissions on 3 March, 29 April and 23 September 1997.

THE LAW

1. The applicant lodges various complaints about custody and access

matters in his own name and also on behalf of his daughter.

The Government submit that the applicant, who has no custody of

his daughter, is not entitled to lodge complaints on her behalf.

In the applicant's view, the question of whether he should be

entitled to represent his daughter is closely linked to the merits of

the case.

According to Article 25 (Art. 25) of the Convention, the

Commission is competent to examine an application lodged by a person

claiming to be the victim of a violation by one of the High Contracting

Parties of the rights set forth in the Convention.

The Commission recalls that in principle a parent who has custody

of his or her child is able to introduce an application under

Article 25 (Art. 25) of the Convention on behalf of the child.

In a previous case, the Commission accepted the mother of a child

under qualified statutory guardianship as the child's representative

to the extent that their complaints were identical and related to the

guardianship order (No. 10812/84, Dec. 11.7.85, D.R. 53, p. 211).

However, the Commission considers that the same considerations cannot

apply to a legal situation where, after divorce, a parent has neither

the custody or care and control of the children. This parent cannot

introduce an application on their behalf, unless especially empowered

to that effect (No. 8045/77, Dec. 4.5.79, D.R. 16, p. 105;

No. 28319/95, Dec. 20.5.96, D.R. 85, p. 153).

In the present case, the Commission notes that the applicant does

not have custody of his daughter, custody having been awarded to the

mother upon the spouses' divorce. The applicant, therefore, is not

empowered to act on his daughter's behalf on the basis of any authority

over the child. Moreover, the applicant has failed to demonstrate that

he is otherwise entitled to represent his daughter with respect to this

application.

Consequently, the Commission finds that the applicant is not

competent under Article 25 (Art. 25) of the Convention to bring any

complaints on behalf of his daughter.

It follows that this part of the application is incompatible

ratione personae with the provisions of the Convention, within the

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

2. The applicant complains in his own name that the German court

decisions determining his right of access to his daughter, and the

proceedings concerned, violated his right to respect for his family

life, as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.

He also relies on Articles 6 and 14 (Art. 6, 14) of the Convention.

Article 8 (Art. 8), as far as relevant, reads as follows:

"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 in the interests

... for the protection of the rights and freedoms of others."

Article 6 para. 1 (Art. 6-1), as far as relevant, provides:

"1. In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ... by [a]

... tribunal ..."

Article 14 (Art. 14) of the Convention 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."

The Government maintain that the applicant's complaints are

manifestly ill-founded. They submit that the decisions limiting the

applicant's right of access were taken in accordance with German law

and were necessary in a democratic society for the protection of the

child's well-being. In particular the Courts had regard to strained

relations between the parents which exposed Svenja to a conflict of

loyalty. In this respect, the District Court had heard the parents,

a psychological expert as well as a social worker. The Court of Appeal

could base its decision on the first instance files, amended by the

report of the Elberfeld Diaconate Institution and the parents' written

submissions which confirmed the continuing conflicts between them. In

the absence of relevant new facts, the Court of Appeal had not been

required to hold a hearing. Moreover, there had been no discrimination

against the applicant.

The applicant contends that extensive contacts as requested by

him are in the interest of his daughter and were only refused because

of the negative attitude of Svenja's mother. In placing Svenja into

a situation of loyalty conflict, she had been able to obstruct his

right of access. He also complains that the courts did not fully

establish the relevant facts necessary for a decision on his right of

access. He submits in particular that the Court of Appeal did not hear

the parties and an expert, although he had requested such a hearing.

The Commission considers, in the light of the parties'

submissions, that the applicant's complaint about the decisions on his

right of access and the proceedings concerned, in particular as far as

the decision-making process is concerned, raises complex issues of law

and of fact under the Convention, the determination of which should

depend on an examination of the merits of the application. The

Commission concludes, therefore, that this part of the application is

not manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

3. The applicant further complains that the German court decisions

concerning custody of Svenja, and the proceedings concerned, violated

his right to respect for his family life, as guaranteed by Article 8

para. 1 (Art. 8-1) of the Convention. He also relies on Articles 6 and

14 (Art. 6, 14) of the Convention in this respect.

The Government consider that these complaints are likewise

manifestly ill-founded. They submit in particular that the interference

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

under paragraph 2 of Article 8 (Art. 8-2). In a situation of conflict

between the parents, the competent courts could not decide that custody

be jointly exercised by them, but had to grant custody to one of them.

In the present case, the daughter had been living with her mother since

the separation of her parents and, for reasons of continuity, custody

could only be granted to her. Moreover, on the whole, both parents

were sufficiently involved in the decision-making process. In their

view, no hearing before the Court of Appeal appeared necessary, as the

main consideration had been that the strained relations between the

parents did not permit joint custody.

The applicant disagrees. He submits that custody should not have

been granted to the parent refusing the exercise of joint custody and

obstructing the other parent's right of access. Moreover, there had

been no sufficient reasons for the Court of Appeal to decide on his

appeal without an oral hearing.