Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23753/94

by Wolfgang BENZE

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 15 March 1994 by

Wolfgang BENZE against Germany and registered on 24 March 1994 under

file No. 23753/94;

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 German citizen, born in 1938, and living in

Munich.

It follows from the applicant's statements and the documents

submitted that he married a Bolivian citizen in December 1975 and got

divorced on 22 March 1990. According to the divorce judgment of that

date, the right to care and custody over the divorced couple's two

children, Alexandra born on 29 January 1977 and Gisela born on

19 February 1981, was given to the mother. The judgment furthermore

regulated the applicant's right of access to his children. Originally

the applicant had the right to have his children visit him for certain

hours during two weekends per month.

Subsequently difficulties arose between the applicant on the one

hand and his ex-wife and the children on the other hand.

On 11 December 1992 the Family Court (Familiengericht) decided

to set aside the then existing visit regulation and to grant the

applicant the right to see his daughter Gisela every second Saturday

in the month from 10.00 am to 6.00 pm. The applicant's remaining

request for a more extensive right of access was rejected.

The applicant appealed and on 13 May 1993 the Munich Court of

Appeal (Oberlandesgericht) granted the applicant the right of access

to his daughter Gisela

- as from June 1993 onwards every second Saturday

in the month from 10.00 am to 6.00 pm and every

fourth Saturday in the month from 2.00 pm to

6.00 pm

- in addition, during the summer holidays, from

the first Sunday 11.00 am to 6.00 pm on the

following Sunday.

With regard to Alexandra the applicant was granted right of

access of two hours, one day per month.

In addition, the applicant was ordered not to disturb the

relationship between mother and children by inappropriate criticism

(unangebrachte Kritik). Furthermore he was ordered to abstain from

contacting his children in between the visiting hours except for

telephone calls each Wednesday between 6.00 and 8.00 pm.

The Court of Appeal stated that the right of access did not

include a right to educate the children, nor to supervise the other

parent. Rather it was destined to give to the holder the possibility

of observing continuously the development and the well-being of the

child and maintain a good relationship of love and affection.

In determining the extent of the right of access, the court did

not have to take into consideration the personal interests of the

respective parent but exclusively the well-being of the child. In this

context the intensity of the relationship of the child with the

respective parent had to be taken into account. Of importance was also

the relationship between the parents. Limitations of the right of

access could be necessary in cases of serious tensions between the

parents. Furthermore the wishes of the children themselves had to be

taken into account. If a child was opposed to seeing his/her father

or mother, it had to be examined whether this attitude was relevant or

understandable. If so it would be incompatible with the purpose of the

right of access and violate the child's personality right if access

were enforced against his/her will.

The court then found that the relationship between children and

father was only marginally able to stand up to stress (wenig belastbar)

and fragile (brüchig). Both children knew they owed much to their

father but rather disapproved of him (lehnen ihn ab ....). The court

further found that, contrary to the applicant's allegations, the mother

could not be made responsible for the children's attitude with regard

to their father. The court stated in this context that it had heard

both children separately and both had made conforming statements

according to which the only reason for their reluctance was the

father's difficult personality. Alexandra had in addition stated that

the mother had even encouraged her to visit the father.

The court also noted that the father had a tendency to sharp

criticism. He had, for example, stated at a hearing that the court

supported the "criminal practices" of the mother.

The court further found that the children were apparently

offended by the fact that the father could not control his hostile

attitude towards the mother in their presence. He had, for example,

stated at a hearing in the presence of Gisela that the mother was a

"criminal" and should be kept behind bars for six months.

The court also noted that the children had made reports of

corporal punishment which the father repeatedly inflicted upon them.

On the other hand the court admitted that the father was very

attached to his children and fully assumed his parental responsibility,

in particular he respected his maintenance obligations. The children

had a central position in his life. Nevertheless this was not

sufficient to grant an extensive right of access. Such an extensive

regulation required that both sides were attached to each other. When

however a parent was disapproved of by his child or his children, there

existed no relationship that had to be protected.

At a hearing before the family court of 15 July 1991 the child

Alexandra had emphatically refused further visits while the child

Gisela had opted for a restriction (Verkürzung) of the right of access.

Although the children had been heard on repeated occasions, their

standpoint had not changed.

The court admitted that the will of a child could not be taken

into account without examination. The guidelines of such examination

were to be found in the Federal Court's jurisprudence. The court then

noted that both children were mature for their age and capable of

judging the behaviour of their parents and their own relationship with

them. Therefore the court considered in agreement with an expert

opinion which had been obtained by the lower Family Court that it

should be left to the children to decide to what extent they wanted to

attach themselves to their parents. It would violate their right to

self-determination and their dignity to oblige them to have contacts

with one parent against their will. To do this could lead to

disturbances in their development. This was also confirmed by the

expert opinion.

The court considered that the children's negative attitude

vis-à-vis their father was understandable in view of his behaviour

towards them, in particular in view of his hostile position with regard

to the mother.

In all the circumstances the father's right of access had to be

limited in accordance with the wishes of the children.

On 12 July 1993 the Munich District Court (Amtsgericht-

Familiengericht) rejected the applicant's request to be granted the

right to care and custody over his children. The court referred to the

reasons stated in the decision of the Munich Court of Appeal given on

13 May 1993 and stated in addition that the children had unequivocally

declared that they wished to remain under the care and custody of their

mother. They had confirmed this wish when they were heard by a

representative of the social services of the city of Munich on

22 March 1993. There were no circumstances justifying withdrawing the

right of care and custody from the mother.

An appeal against this decision was rejected by the Munich Court

of Appeal on 28 November 1993. The court at the same time rejected the

applicant's request for an injunction (einstweilige Anordnung).

In so far as the applicant had alleged that the mother had turned

the children against him and retarded their mental, social and physical

development, the court found that these allegations were unproven. On

the other hand it followed from the statements of the mother of the

children and of the competent youth authorities that the children were

well taken care of and that there was no necessity for a change with

regard to the right of parental care.

The mother could not be held responsible for the solitary

attitude and the underweight state of the child Gisela. Gisela also

loved her father but his constant attacks on the mother exposed her to

a continuous conflict of loyalty. In this respect the responsibility

was with the father. In any event both children had told the court

that their food supply was good and abundant. Gisela's underweight

state could therefore not have been caused by insufficient food supply.

In addition the nutritional condition of the child Alexandra showed

that the children received sufficient food from their mother.

It also followed from a report submitted by the Youth Office on

22 March 1993 that the exercise by the mother of her right to care and

custody was unobjectionable.

It was true that there were no direct witnesses therefore the

children's own statements were of particular importance. There was no

reason to doubt their statements. Consequently there was also no

necessity to obtain the expert opinion of a psychologist in family

matters.

The applicant's constitutional appeals against the Appellate

Court's decisions of 13 May 1993 and of 28 November 1993 were rejected

by a panel of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 3 November 1993 and on 24 January 1994

respectively. While the latter decision only refers to Sections 93 (a)

and (b) of the Federal Constitutional Court Act, it is stated in the

decision of 3 November 1993 that there was nothing to show that the

Appellate Court had not carefully examined the matter in the course of

the proceedings such as to balance both the fundamental rights of the

parents and of the children and to come to a decision which would best

serve the children's well-being or that this decision was taken in

disregard of the European Convention of Human Rights.

COMPLAINTS

The applicant considers it to be immoral to allow one parent to

repudiate the other and to oblige the latter at the same time to pay

maintenance for the family. He submits that in the proceedings

relating to the right to care and custody and to the right of access

to his children he was denied a fair hearing while the criminal methods

of the mother were persistently disregarded by the courts. He alleges

that the expert opinions obtained in his matter were fabricated in

order to separate him from his children. He considers that the

decisions complained of violate his right to respect of family life as

guaranteed by Article 8 para. 1 of the Convention.

THE LAW

The applicant complains about the restrictions of his right of

access to his children as well as the refusal of the competent German

court to withdraw the right of care and custody over his two children

from the mother and to transfer this right to him.

The applicant invokes Article 8 (Art. 8) of the Convention:

"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 health or morals, or for the protection of the

rights and freedoms of others."

The Commission first recalls that the family life of the parents

with their children does not cease following the divorce of a married

couple (cf. No. 7770/77, Dec. 2.5.78, D.R. 14 p. 175). In the present

case the German courts' decisions to give the custody of the

applicant's daughters to his former wife and their later refusal to

transfer custody to the applicant as well as the limitations of the

applicant's right of access to his daughters interfered with his right

to family life under Article 8 para. 1 (Art. 8-1) of the Convention.

The Commission therefore has to examine whether these interferences

were justified under the terms of Article 8 para. 2 (Art. 8-2).

The Commission observes that the decisions complained of were

taken in accordance with German law.

The Commission notes the finding of the competent courts that the

interests of the applicant's daughters and their future well-being

required that their mother should continue to take care of them. The

German courts furthermore found that the children had expressed a

genuine and justified desire for the limitation of their father's right

of access. The courts had heard the children and mother personally and

also relied on expert opinion and the report submitted by the Youth

Office.

The Commission finds that the decisions of the German courts do

not contain any indication that the custody and right of access

decisions complained of were not based on due consideration of the

interests and the well-being of the children. The applicant has

criticized these decisions but has not shown that relevant evidence was

disregarded by the German courts to the detriment of his daughters or

his own rights.

Consequently, the interferences with the applicant's right to

family life were justified under Article 8 para. 2 (Art. 8-2) of the

Convention in that they can reasonably be considered as necessary for

the protection of the health and well-being of the applicant's

daughters.

It follows that 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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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BENZE v. GERMANY

BENZE v. GERMANY

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