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FOSKJAER v. DANEMARK

Doc ref: 29245/95 • ECHR ID: 001-124509

Document date: October 22, 1997

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Cited paragraphs: 0
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FOSKJAER v. DANEMARK

Doc ref: 29245/95 • ECHR ID: 001-124509

Document date: October 22, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 29245/95

by Freddy FOSKJÆR

against Denmark

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

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 10 October 1995

by Freddy Foskjær against Denmark and registered on 15 November 1995

under file No. 29245/95;

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 Danish citizen, born in 1954. He resides

in Gentofte. Before the Commission he is represented by

Ms Ulla Merete Bak, a lawyer practising in Copenhagen.

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

summarised as follows.

In June 1994 the applicant instituted proceedings against his

wife with a request for divorce. He also requested to be awarded

custody of their two children, born in 1991 and 1993 respectively. A

preliminary agreement was reached between the parties as regards

custody and access while the case was pending.

The Ballerup City Court (retten i Ballerup) held a hearing in the

case on 8 August 1994 during which the parties, assisted by counsel,

were present and had the opportunity to state what in their opinion was

of relevance to the outcome of the case. It was furthermore decided to

obtain an expert opinion which was available on 20 November 1994. It

concluded that it would be appropriate to award the applicant custody

of the children and to grant the mother extended access rights.

By judgment of 14 December 1994 the City Court accepted the

parties' request for divorce and awarded the applicant custody of both

children.

The mother appealed against the judgment to the High Court of

Eastern Denmark (Østre Landsret). She requested that a new expert

opinion be obtained which, however, the Court refused.

The High Court held a new hearing in the case on 12 April 1995

during which the applicant and his former wife again had the

opportunity to address the Court. By judgment of the same day the High

Court awarded custody of the children to the mother. After an

evaluation of the available evidence the Court found this to be in the

best interest of the children.

Leave to appeal to the Supreme Court (Højesteret) was refused on

12 July 1995.

COMPLAINTS

Under Articles 8, 12 and 14 of the Convention and Article 5 of

Protocol No. 7 to the Convention the applicant complains of the fact

that custody of the children was awarded to the mother. He maintains

that the decision was based on the incorrect view that small children

are best taken care of by their mother. He also maintains that the High

Court in fact granted custody to the parent who was least capable of

taking care of the children and that the decision was discriminatory

in view of his sex.

The applicant furthermore complains that Article 13 of the

Convention was violated as the High Court's decision was based on

insufficient grounds and, also, since he was refused leave to appeal

to the Supreme Court.

THE LAW

1. The applicant complains that the judgment granting custody of the

children to his former wife was discriminatory and based on an

incorrect evaluation of the factual circumstances.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to the established

case-law of the Convention organs (see e.g. Eur. Court HR, Schenk v.

Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, para.

45).

It is true that the applicant also refers to Articles 8, 12 and

14 (Art. 8, 12, 14) of the Convention and Article 5 of Protocol No. 7

(P7-5) to the Convention in respect of the custody dispute.

Whereas the Commission finds no room for considering this case

under Article 12 (Art. 12) of the Convention, it has considered the

applicant's complaints under the other Articles invoked in so far as

they involve his right to respect for his family life without

discrimination. The Commission notes, however, that the national courts

are in cases like the present one often faced with the problem of

making a choice between the parents. Their decision in this respect

will not as such disclose any lack of respect for the family life of

the parent who is not granted custody. In the circumstances of the

present case the Commission furthermore considers that the decision

taken was neither arbitrary nor disproportionate, or in any other way

discriminated against the applicant in the enjoyment of his right to

respect for his family life within the meaning 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 also complains, under Article 13 (Art. 13) of the

Convention, that the decision was based on insufficient grounds and of

the fact that he was not granted leave to appeal.

The Commission recalls that the applicant could, and did, bring

the custody dispute before the City Court and, on appeal, the case was

also heard by the High Court of Eastern Denmark which, like the City

Court, had full competence to consider this dispute. In these

circumstances the Commission finds that the requirements of Article 13

(Art. 13) were complied with.

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 G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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