Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25735/94

by Egbert ELSHOLZ

against Germany

The European Commission of Human Rights sitting in private on

30 June 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission.

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 31 October 1994

by Egbert ELSHOLZ against Germany and registered on 21 November 1994

under file No. 25735/94;

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

21 June 1996 and the observations in reply submitted by the

applicant on 18 September 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1947, is a German national. When lodging

his application he was living in Erkrath; he later moved to Hamburg.

He is represented by Mr. P. Koppel, a lawyer practising in Munich.

A. The particular circumstances of the case

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

summarised as follows.

The applicant is the father of the child Carsten N., born out of

wedlock on 30 December 1986. In a document dated 9 January 1987 he

acknowledged paternity and undertook to pay maintenance. He regularly

pays 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.

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. had

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.

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.

In August 1992 the applicant applied to the Mettmann District

Court (Amtsgericht) for a decision granting him a right to visit

(Umgangsregelung) Carsten on every first Saturday per month, between

1 p.m. and 6 p.m.

On 4 December 1992 the District Court (Amtsgericht) 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 it 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 him 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.

On 8 September 1993 the applicant applied to the District Court

for an order requiring the child's mother to consent to family therapy

being received by the applicant and the child and, after contacts

between them had been successfully resumed, determine his visiting

rights.

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.

On 17 December 1993 the District Court dismissed the applicant's

renewed request for visiting rights, dated 8 September 1993.

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.

In view of these findings under S. 1711 of the Civil Code, the

Court regarded it as unnecessary to obtain an expert opinion. It

pointed out that it was not the task of a court-appointed expert to

give 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.

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 of the child and the child's true

wishes in this respect and that the applicant's visiting rights be

determined accordingly.

On 21 January 1994 the Wuppertal Regional Court (Landgericht),

without hearing the applicant, the child and his mother, dismissed the

applicant's appeal (Beschwerde).

In its decision, the 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 his motions as stated in his appeal submissions.

The 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. Inter alia,

it had to be considered 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.

The 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.

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.

On 19 April 1994 a panel of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) refused to entertain

the applicant's constitutional complaint (Verfassungsbeschwerde).

According to the Federal Constitutional Court, the complaint did not

raise any issues of a general character affecting the observance of the

Constitution. In particular the question 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

I. The right of custody over children born out of wedlock is

regulated in SS. 1705 to 1711 of the Civil Code.

S. 1711 of the Civil Code reads 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."

II. With regard to children whose parents are or have been married

the question of personal contacts with the parent who does not have the

right to care and custody is regulated in S. 1634 of the Civil Code,

which reads 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."

III. The Government Bill of 28 February 1996 on the reform of the law

on family matters, which is in the legislative process, envisages a

uniform regulation of access in respect of children born in or out of

wedlock. Each parent is supposed to have a right of access to the

child, irrespective of whether the parents were married or not. This

right may be limited or excluded if the competent court finds that such

a measure is necessary in the interest of the child's well-being.

COMPLAINTS

1. The applicant complains under Articles 8 and 14 of the Convention

about the refusal of contact with his son Carsten. He considers that

the regulation in S. 1711 of the Civil Code on contacts between father

and child born out of wedlock discriminates against the father in

comparison to the regulation in S. 1634 of the Civil Code relating to

contacts between a father and his legitimate child.

2. He further complains under Articles 6 and 8 of the Convention

that the courts took their decisions without obtaining an expert

opinion although this had been recommended by the competent Youth

Office. Moreover, the appellate court took its decision without

hearing the parties and the child. He submits that in cases like his

the authorities have a positive obligation to find out ex officio

whether or not the father's request to see his child is justified. If

the court does not fully examine the matter ex officio it falls in the

last resort to the mother to determine the issue. If she is of bad

faith she can always pretend, or even see to it, that her relationship

with the father is strained in order to avoid any further contacts

between him and the child.

3. He finally complains under Article 6 of the Convention about the

length of the proceedings and the fact that the result of this lengthy

procedure, namely that he has not seen his child for a substantial

period of time, is being held against him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 October 1994 and registered

on 21 November 1994.

On 9 November 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

21 June 1996. The applicant replied on 18 September 1996.

THE LAW

1. The applicant complains that the German court decisions

dismissing his request for access to his son Carsten amount to a breach

of his right to respect for his family life, as guaranteed under

Article 8 para. 1 (Art. 8-1) of the Convention.

Article 8 (Art. 8) 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."

The Government consider that the application is manifestly ill-

founded.

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

(Art. 8-1). 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

(Art. 8-1). 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 (Art. 8-1).

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 (Art. 8-2) (Marckx judgment, loc.

cit.; Johnston v. Ireland judgment of 18 December 1986, Series A no.

112; Keegan 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.

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. 2 (Art. 8-2). 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.

The applicant submits that, in the light of the recent case-law

on questions relating to the position of children born out of wedlock

and their parents, Article 8 para. 1 (Art. 8-1) 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 (Art. 8-2).

The Commission considers, in the light of the parties'

submissions, that the applicant's complaint under Article 8 (Art. 8)

of the Convention about the refusal of access to his son Carsten raises

complex issues of law and 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.

2. The applicant further complains 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. He relies on Article 14, in conjunction with Article

8 (Art. 14+8), of the Convention.

Article 14 (Art. 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."

The Government maintain that 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.

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 (Art. 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 right of 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.

The applicant disputes the Government's affirmations.

The Commission considers, in the light of the parties'

submissions, that the applicant's complaint under Article 14 (Art. 14)

of the Convention that the refusal of access to his son Carsten amounts

to discrimination also 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 under Articles 6 and 8

(Art. 6, 8) 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 (Art. 6-1), 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."

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 this 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.

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.

The Commission considers, in the light of the parties'

submissions, that the applicant's complaints about the alleged

unfairness of the German court proceedings are closely related to his

above complaints under Article 8 and 14 (Art. 8, 14) of the Convention

about the decisions refusing his request for access to his son, and the

determination of these issues should also depend on an examination of

the merits of the application. The Commission concludes, therefore,

that this aspect 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.

4. The applicant finally complains under Article 6 para. 1

(Art. 6-1) of the Convention about the length of the proceedings

relating to his request for access to his son.

The Government submit that the applicant's request for access was

decided within a reasonable time. The applicant disputes this view.

The Commission finds that the period to be taken into

consideration started on 8 September 1993 when the applicant lodged his

request for access with the Mettmann District Court. It ended on 6 May

1994 when the Federal Constitutional Court's decision of 19 April 1994

was served upon the applicant. It thus lasted for about seven months.

The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the Court's

case-law and in the light of the circumstances of the case, which in

this instance call for an overall assessment (cf. Eur. Court HR,

Caesarean v. Italy judgment of 12 October 1992, Series A no. 245-B,

p. 26, para. 17).

The Commission finds that the applicant's case related to family

matters and therefore required to be handled with particular diligence.

It came before courts at three levels and was terminated within seven

months. Considering all circumstances, this length cannot be regarded

as excessive.

The Commission therefore finds that the applicant's submissions

as to the length of the proceedings do not disclose any appearance of

a violation of Article 6 para. 1 (Art. 6-1) 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.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints about the refusal of access to his son

Carsten and about the fairness of the proceedings concerned,

DECLARES INADMISSIBLE the remainder of the application.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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ELSHOLZ v. GERMANY

ELSHOLZ v. GERMANY

LEXI