Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21548/93

by Michael MALCHIN

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

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 1 October 1989 by

Michael MALCHIN against Germany and registered on 22 March 1993 under

file No. 21548/93;

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 1942 and living in

Berlin.

The applicant complains that he was denied access to his son.

It follows from his statements and the documents submitted that

the applicant is recognised as being the father of A.G. who was born

in 27 November 1985.The mother had been married to H.G. and got

divorced on 22 November 1985.

By judgment of 20 July 1986 it was established that H.G. her ex-

husband was not the father of A.G.

The mother recognised A.G. as her legitimate son on

3 February 1992.

The applicant states that he lived together with A.G.'s mother

from 1983 but in January 1987 she broke up the relationship with him.

Since then the applicant has tried to remain in contact with his son.

On 15 June 1987 the District Court (Amtsgericht) in Berlin

Schöneberg rejected the applicant's request to be granted access to his

son. At the mother's request the court ordered the applicant not to

contact his son.

The court stated that according to Section 1711 (2) first

sentence of the Civil Code (BGB) the father of an illegitimate child

may be granted a right of access to his child if this is in the

interests of the child's well-being. The court found that this was not

the case. It stated that there were no family relations between the

applicant and his child as he never lived together with the mother and

the child. The court furthermore found that there were tense relations

between the mother and the applicant. The mother was afraid of the

applicant who had sought to exert pressure on her by informing the

press and persons living in the same house of the situation. He even

had threatened the mother in a letter sent to her on 17 May 1987. In

all these circumstances there was a danger that allowing the applicant

to see his child would create a stress situation for the latter.

As the applicant continued trying to see his son court

proceedings were instituted against him by the mother with a view to

having these attempts stopped. By decisions of 22 July 1988 and

13 September 1989 the District Court again disallowed contact between

the applicant and his child.

An appeal against the decision of 13 September 1989 was rejected

by the Berlin Regional Court (Landgericht) on 11 January 1990. The

court ordered that the applicant should abstain from establishing

contact with his child in particular by lying in wait for him in the

street on his way back from the kindergarten. The court stated that

the new orders had become necessary as the applicant's attempts to

intrude into the relationship between mother and child had intensified

in that he way-laid them every day and mis-used the child for photos

which he then placed, or tried to place in newspapers. He had also put

up posters with a photo of the child near the mother's home.

In all these circumstances it was justified to disallow any

contacts between father and child in accordance with Section 1711 (2)

second sentence and with Section 1634 (2) second sentence of the Civil

Code as there was danger that otherwise the child's well-being would

be affected.

The court considered that the main objective of the applicant was

not to establish a normal father-child contact with his son but to be

always present in the child's mind and to undermine its relationship

with the mother. He was convinced that he was an ideal father and left

the mother with no choice but to accept his conditions or to endure his

persecution.

The applicant's constitutional complaint against the Regional

Court's decision of 11 January 1990 was rejected by a group of three

judges of the Federal Constitutional Court (Bundesverfassungsgericht)

on 29 November 1990 as offering no prospect of success. His request

for an injunction and for the granting of legal aid was likewise

rejected.

It was stated in the decision that the Regional Court had

correctly given preference to the mother-child relationship and the

well-being of the child and it was therefore, from a constitutional

point of view, unobjectionable that the court had considered it was

unacceptable for the child constantly to be confronted with the

insoluble conflict between his parents.

In consequence of the mother's decision to recognise A.G. as her

legitimate child the District Court decided on 2 April 1992 that A.G.

thereby had acquired the position of a legitimate child.

On 21 May 1992 the Berlin Regional Court rejected another

complaint made by the applicant against a District Court's order

denying access to his child. It is stated in the Regional Court's

decision that in consequence of the adoption of the child by the

mother, pronounced on 2 April 1992 by the Schöneberg District Court,

any family relationship to the applicant had stopped in accordance with

Section 1755 (1) of the Civil Code. He could therefore no longer

complain of denial to access to his child.

On 3 September 1992 the Federal Constitutional Court rejected

another constitutional complaint lodged by the applicant as being

inadmissible. It is stated in the decision that insofar as the

applicant complained of the District Court's order of 2 April 1992 he

had failed to submit observations as to the mother's request to adopt

her child. Consequently the applicant had failed to avail himself of

all possibilities for preventing the alleged violation of his

constitutional rights.

COMPLAINTS

The applicant complains of the denial of access to his child and

considers that his right to the protection of his private and family

life as guaranteed by Article 8 of the Convention has been violated.

He also complains about the adoption of his child by the mother

without his consent.

THE LAW

1. The applicant complains of the refusal to grant him access to his

child born out of wedlock.

This refusal is mainly based on the grounds that no close family

ties had developed between the applicant on the one hand and his child

and his child's mother on the other hand and that the child's mother,

who has the right of care and custody over the child, is opposed to

contacts between the applicant and the child.

a. The Commission has already recognised in its case-law that in

principle a parent has always a right of access to his or her child

under Article 8 para. 1 (Art. 8-1) of the Convention (see No. 7911/77,

Dec. 12.12.77, D.R. 12 p. 192; No. 8045/77, Dec. 4.5.79, D.R. 16

p. 105). However, the cases in question concerned complaints of

divorced parents who had normal family relations with their respective

children while they were married and who were restricted in their right

of access to the children after the divorce. In many cases no normal

family ties exist between a child born out of wedlock and the father.

It therefore appears doubtful whether the unmarried father has in all

cases a right of access to the child under Article 8 para. 1 (Art. 8-1)

of the Convention which presupposes the existence of a family (See Eur.

Court H.R., Marckx judgment of 13 June 1979, Series A no. 31, p. 14,

para. 31). However, even assuming that the applicant could claim a

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

such right is not unlimited. The Commission has always recognised the

necessity for the national courts to place restrictions on the right

of access to a child if such restrictions are imposed in the child's

interests and are therefore justified under Article 8 para. 2

(Art. 8-2) of the Convention (see above cited decisions).

b. As regards the present application, the Commission notes that in

accordance with Section 1711 (2), first sentence, of the Civil Code

(BGB) a right of access to a child may be granted to the illegitimate

father. It was however denied to the applicant in view of the

applicant's own behaviour and the tensions which this had caused

between him and the child's mother.

The applicant has contested the statements of the child's mother

to which the German courts referred and according to which the tensions

were provoked by him and his behaviour. He has however not contested

that such tensions exist and were likely to recur if he were allowed

to visit or contact his son again. In these circumstances, and taking

also into account that close personal relations between the applicant

and his child have not been shown to exist, the Commission is satisfied

that the restrictions imposed by the German courts on the applicant's

right of access to his child were justified under Article 8 para. 2

(Art. 8-2) of the Convention as being necessary in a democratic society

for the protection of the rights and freedoms of others.

It follows that this part of the application does not disclose

any appearance of a violation of the Convention and in particular

Article 8 (Art. 8). It is consequently manifestly ill-founded within

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

2. Insofar as the applicant complains about the adoption of the

child by the mother it has to be noted that the applicant's

constitutional complaint in this matter was declared inadmissible

because ordinary remedies had not been exhausted. In these

circumstances the applicant cannot be considered to have availed

himself of all domestic remedies and to this extent his application has

to be rejected in accordance with Articles 26 and 27 para. 3

(Art. 26, 27-3) 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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MALCHIN v. GERMANY

MALCHIN v. GERMANY

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