Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19741/92

by H. and B. M.

against Germany

The European Commission of Human Rights (First Chamber)

sitting in private on 6 April 1994, the following members being

present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 21 February

1992 by H. and B. M. against Germany and registered on 23 March

1992 under file No. 19741/92;

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 applicants, father and daughter, are German citizens,

born in 1940 and 1985 respectively and living in Stuttgart. The

first applicant is representing his daughter and he himself is

represented by Mr. C.H. Rumpf, lawyer practising in Mannheim.

The applicants complained that after the divorce of the

first applicant the right of care and custody over the second

applicant was granted by the competent German tribunals to the

mother.

It follows from the applicants' statements and the documents

submitted that the first applicant's marriage was dissolved by

divorce judgment given on 5 July 1990 by the District Court

(Amtsgericht) Waiblingen. By the same decision the court

attributed the right to care and custody over the divorced

couple's daughter to her mother.

The court stated in respect of the latter decision that both

parents were suited to take care of the upbringing of the child

as both loved the child and had a good relationship with her.

However, no agreement could be reached between the parties and

the court considered that on account of the still existing

tensions between them that it was too early for a common exercise

of the right to care and custody, although this would have been

the best solution and should be the aim of the parents. For the

time being it appeared in the best interests of the child if the

mother exercised the right to care and custody alone. The court

stated in this context that the mother appeared more reasonable

and cooperative than the father as she had agreed to leave the

child provisionally with the father while the father on his side

seemed to be opposed to leave the child with the mother although

it was the child's wish to have unrestricted contacts with both

parents.

The court also stressed that it was convinced that the

mother would not try to disturb or hinder the father's right to

visit the daughter.

The court pointed out that during the divorce proceedings

the Stuttgart Court of Appeal had on 15 January 1990 confirmed

a decision to transfer the right of custody provisionally to the

mother.

Eventually the court pointed out that its present decision

was not irreversible. If later the child requested to live with

her father, such a request would have to be taken into account.

Furthermore, it was possible that the parents came to an

agreement on a common right of care and custody. The court

advised the parties that the parents should not influence the

child in a negative manner, disturbing the child's relationship

with both parents.

The applicant's appeal against the care and custody decision

of 5 July 1990 was rejected by the Stuttgart Court of Appeal on

7 June 1991. The Court agreed with the District Court that the

mother seemed better suited to guarantee the best development of

the child. It referred to its prior impression of the first

applicant who seemed to be over- anxious and had the tendency of

caring too much for the child in order to strengthen the ties

between her and himself. The court further stated that even

assuming that both parents were equally suited to take care of

the child, the principle of continuity required that the child

who was now living for more than one year with the mother and saw

her father on weekends would not be exposed to a radical change

of this situation which would also affect her relationship with

her friends in kindergarten and school.

The applicant then lodged a constitutional complaint which

was rejected on 21 August 1991 by a group of three judges of the

Federal Constitutional Court (Bundesverfassungsgericht) as being

partly inadmissible and as offering no prospects of success as

to the remainder.

The complaint was considered to be inadmissible insofar as

it was lodged also on behalf of the applicant's daughter. To

this extent the applicant was considered not to be authorised to

represent his daughter as he did not hold the right to care and

custody.

Insofar as the applicant complained about the District

Court's decision, the Constitutional Court judges considered that

the complaint was unsubstantiated and did not disclose any

violations of constitutional rights.

Insofar as the applicant complained of the appellate court's

decision, it is stated that this decision was from the point of

view of constitutional rights, unobjectionable. In case of

conflict between child and parent the wellbeing of the child had

to be given preference and the reasons stated by the Court of

Appeal showed that leaving the right of care and custody with the

mother was, under the circumstances of the case, the best

solution in the interests of the child.

Finally, it is stated in the Constitutional Court's decision

that the fact that the applicant was not heard personally by the

Court of Appeal, was irrelevant because he had not shown in his

submissions to the Constitutional Court that in case of an oral

hearing he could have submitted particular arguments which might

have influenced the Appellate Court to decide in his favour.

COMPLAINTS

The first applicant alleges a violation of Article 6 of the

Convention, alleging that the German courts did not make the

necessary extensive enquiries in order to find out which of the

parents was best qualified to take care of the second applicant.

He also complains that the second applicant was not personally

heard by the German courts and that he himself was not heard

personally by the Court of Appeal. Furthermore, he considers

that Article 8 is violated.

Furthermore, he complains on behalf of his daughter and

likewise alleges violations of Articles 6 and 8 of the

Convention.

Finally, he invokes, on his own behalf, Article 2 of

Protocol No. 1 and Article 14 in conjunction with Articles 6 and

8 of the Convention.

THE LAW

1. The applicant has filed the application in his own as well

as in his daughter's name although the right of care and custody

over the daughter was awarded to the applicant's former wife

after the dissolution of their marriage.

The question, therefore, arises whether in these

circumstances the applicant is able to lodge his complaints

concerning the German courts' decisions on the granting of care

and custody also on behalf of his daughter (cf. mutatis mutandis,

No. 10812/84, Dec. 11.7.85, D.R. 44 p. 211). However, the

Commission does not regard it as necessary to settle this issue,

as the complaints are in any case inadmissible for the following

reasons.

2. The Commission has first examined the applicants'

complaints, in respect of the granting of custody, under Article

8 (Art. 8) of the Convention, which reads:

"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 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 over the first applicant's daughter to his former

wife interfered with both applicants' right to respect for their

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

It therefore remains to be examined whether this interference was

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

Convention.

The Commission notes the finding of the Waiblingen District

Court and the Stuttgart Court of Appeal that the interest of the

second applicant and in particular her future well-being required

that her mother should continue to take care of her. There is

nothing to show that this finding is incompatible with the

particular circumstances of the present case. It has also to be

noted that the first applicant's right of access was first

settled in the divorce and family proceedings and seems to be

undisputed. Furthermore the District Court expressly reserved

its position in view of future developments and stressed the

possibility, inter alia, of the parents reaching an agreement on

the joint exercise of the right to care and custody. In the

light of the first applicant's submissions the Commission finds

no indication that the custody decisions so far taken were not

based on due consideration of the interests of the child.

The Commission is therefore satisfied that the interference

with the right to family life, namely the decision on custody,

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

Convention as necessary for the protection of the health and

future well-being of the second applicant.

It follows that this complaint concerning the German courts'

decisions on custody is manifestly ill-founded within the meaning

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

3. The applicants have also alleged a violation of Article 6

(Art. 6) of the Convention which guarantees a right to a fair

hearing.

a) However, insofar as the first applicant complains that

his daughter was not heard by the courts which decided on the

issue of which of the parents should be attributed the right to

care and custody, he has not exhausted domestic remedies as he

did not raise this particular complaint before the Federal

Constitutional Court. To this extent, the application has to be

rejected for non-exhaustion of domestic remedies in accordance

with Articles 26 and 27 para. 3

(Art. 26, 27-3) of the Convention.

b) Insofar as the first applicant complains that he

himself was not personally heard by the Court of Appeal, it first

must be noted that this particular complaint was rejected by the

Federal Constitutional Court as being unsubstantiated. However,

even assuming that he has exhausted domestic remedies, Article

6 (Art. 6) of the Convention does not guarantee an absolute right

to parties to be heard personally. It rather depends on the

nature of the proceedings in question and the issue at stake

whether or not a personal hearing of a party is necessary. In

the present case the first applicant was represented by legal

counsel in the domestic proceedings and there is nothing to show

that he was in any way prevented from submitting all allegations

and arguments which he himself considered to be of relevance.

There is consequently no appearance of a violation of Article 6

(Art. 6) of the Convention and to this extent the application has

again to be rejected as being manifestly ill-founded within the

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

4. The first applicant has furthermore invoked Article 2 of

Protocol No. 1 and Article 14 (P1-2, 14) of the Convention.

However, he has not submitted any substantial argument disclosing

a possible appearance of a violation of these provisions and to

this extent this application again has to be rejected as being

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) (A. WEITZEL)

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H. AND B.M. v. GERMANY

H. AND B.M. v. GERMANY

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