Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13226/87

by Frank EDWARDS

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 13 October 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 July 1987

by Frank Edwards against the Federal Republic of Germany and registered

on 16 September 1987 under file No. 13226/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1939 in Aruba/

Netherlands Antilles.

It follows from his statements and the documents submitted by

him that he is the father of a boy, Oliver Martin S., who was born out

of wedlock on 2 February 1974 in Berlin.

There was apparently no contact between the applicant and his

son. The District Court (Amtsgericht) Neukölln in Berlin informed the

applicant by letter of 20 December 1982 that he had no right to visit

his son under the applicable Dutch law and even if German law were

applicable access could only be granted with the mother's consent.

The mother, Mrs. S., had, however, refused to allow the applicant to

visit his son and the Youth Office was likewise of the opinion that

contacts with the father could be detrimental to the child's

development. The applicant was asked whether nevertheless he wished

to maintain his request for an order granting him access to his son

but he apparently did not pursue the matter. Previously on 6 July 1961

the applicant had accepted to pay maintenance for the child.

By letter of 6 December 1985 the applicant was informed by the

Youth Office (Jugendamt) Neukölln in Berlin that the present husband

of Mrs. S had submitted a written request for the adoption of Oliver Martin.

The applicant was further informed that in case the adoption was approved

he would no longer be obliged to pay maintenance. It appears that the

mother had already prior to this letter refused to accept the applicant's

maintenance payments.

In the Youth Office letter of 6 December 1985 reference was

also made to Sections 1741 et seq. of the Civil Code (Bürgerliches

Gesetzbuch - BGB) governing adoption. (See below "Relevant domestic

law".)

In particular the Youth Office stated that in accordance with

Section 51 b of the Youth Welfare Act (Jugendwohlfahrtsgesetz - JWG)

it had to inform the applicant that under Section 1747 BGB the father

had to be heard and should renounce adopting the child himself or

having it declared legitimate. It was added that the applicant could

make the corresponding declaration at the Youth Office.

The applicant replied on 26 January 1986 contesting the Youth

Office's competence in the matter and stating that he was not

"enthusiastic" about their letter and not prepared to accept such

treatment. He added that he would continue paying maintenance for his

son.

The applicant then tried to obtain a decision through a

Netherlands court granting him a right to visit his son. By

order of 26 November 1986 the Regional Court (Arrondissementsrechtbank,

Kinderrechter) of The Hague stated that it was not competent in the

matter.

The applicant then wrote to the District Court Neukölln in

Berlin which replied on 23 February 1987 that Oliver Martin S. had

been adopted in accordance with an adoption order of 28 October 1986.

Consequently, there no longer existed any legal relationship between

the applicant and the child.

By letter of 23 April 1987 the District Court informed the

applicant that according to Section 1758 BGB the adoption order was

not to be made known to third persons.

Relevant domestic law

Under Section 1741 (1) BGB the adoption of a child is

admissible if it is in the interest of the well-being of the child and

if it can be expected that parent-child relations will develop between

the person adopting and the child. Paragraph 3 provides that an

illegitimate child can be adopted by his/her father or mother.

As regards the adoption of an illegitimate child Section 1747

para. 2, BGB provides:

(German)

"Zur Annahme eines nichtehelichen Kindes ist

die Einwilligung der Mutter erforderlich. Die Annahme eines

nichtehelichen Kindes durch Dritte ist nicht auszusprechen,

wenn der Vater die Ehelicherklärung oder die Annahme des

Kindes beantragt hat; dies gilt nicht, wenn die Mutter ihr

nichteheliches Kind annimmt. Der Vater des nichtehelichen

Kindes kann darauf verzichten, diesen Antrag zu stellen.

Die Verzichtserklärung bedarf der öffentlichen Beurkundung;

sie ist unwiderruflich."

(English translation)

"The adoption of an illegitimate child requires

the approval of the mother. The adoption of an

illegitimate child by third persons shall not be

pronounced if the father has made a request for the

declaration of legitimacy or the adoption of the child;

this shall not apply when the mother adopts her child

born out of wedlock. The father may renounce submitting

such a request. His declaration of renunciation has to

be drawn up in an official document; it is irrevocable."

According to Section 51 b JWG the father of an illegitimate

child has to be advised by the Youth Office about his rights under

Section 1747, para. 2, second and third sentences, BGB when a request

is made by a third person for the adoption of the child. The father

has to be informed about his rights before decisive measures are taken

in the adoption proceedings.

Section 56 e of the Act on Non-Contentious Jurisdiction

(Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit -

FGG) provides that an adoption order cannot be challenged. Otherwise

an order given by the first instance court in non-contentious

proceedings can be challenged by any person whose rights are affected

by it (Sections 19, 20 FGG).

Under Sections 1723, 1726 BGB an illegitimate child, who is a

minor, can be declared legitimate at his/her father's request and with

the mother's approval.

COMPLAINTS

The applicant complains that without his consent his son was

adopted by the mother's present husband. He also complains that he was

not informed about the reasons stated in the adoption order and that

he had no possibility of challenging this order. He invokes Articles

6, 8 and 13 of the Convention.

THE LAW

The applicant has complained that his son, who was born out of

wedlock and is living with his mother, was adopted without the

applicant's consent by the mother's present husband. The applicant

complains that he had no remedy against the adoption order.

It is true that Article 8 para. 1 (Art. 8-1) of the Convention

secures to everyone the right to protection of his private and family

life.

Even assuming that domestic remedies were exhausted and that

the adoption without the applicant's consent constitutes an

interference with the right to respect for his private and family life

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

first notes that according to the applicant's own submissions he

apparently never lived together with his son and the son's mother and

the latter refused his request, made in 1981, to be allowed to visit

his son.

The Commission further recalls that the regulation of the

German law attributing to the mother of a child born out of wedlock

the exclusive right of care and custody is in itself compatible with

the Convention (No. 9639/82, Dec. 15.3.84, D.R. 36, 130).

It is a normal consequence of this regulation that the

adoption of such a child by a third person is possible with only the

consent of the mother. The father's interests are sufficiently taken

care of by the possibility of his making a request for the child's

adoption or for an order of legitimacy. The Commission notes that

under Section 51 b of the Youth Welfare Act the father must be

informed of these rights in case a third person wishes to adopt the

child. In the present case the applicant was requested by the Youth

Office to renounce these rights. He was thus at least incidentally

informed of the existence of these rights but did not avail himself

of the possibility they offered to him for establishing close family

links with his son. The applicant limited himself to informing the

Youth Office that he did not accept the measures taken and that he

was prepared to continue to pay maintenance.

The applicant's illegitimate son who has lived with his mother

for nearly fifteen years was adopted in accordance with German law by

his mother's present husband. There is nothing to show that this

solution was not in the best interest of the child. The interference

with the applicant's right under Article 8 para. 1 (Art. 8-1) of the

Convention was therefore justified under paragraph 2 (Art. 8-2) of

this provision.

It follows that this complaint is manifestly ill-founded

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

2. The applicant also complains that he had no possibility of

challenging the adoption order and therefore had no effective remedy

within the meaning of Article 13 (Art. 13) of the Convention. Under

the case-law of the European Court of Human Rights Article 13 (Art.

13) secures such a right to anyone claiming on arguable grounds to be

the victim of a violation of his rights and freedoms as protected in

the Convention (case of Plattform "Ärzte für das Leben", judgment of

21.6.1988, Series A no. 139, para. 25).

While a complaint that has been found inadmissible as being

manifestly ill-founded may nevertheless be considered arguable (loc.

cit., para. 27), the Commission notes in the present case that the

applicant did not have any contacts with his son. He did not pursue

or repeat his request made in 1982 to be granted a right to visit his

son after he was told by the competent court in December 1982 that the

mother was opposed to contacts between him and the child. Furthermore,

the applicant has not shown that, despite the lack of contact, any close

relationship had developed between him and his son. As pointed out

above, there is also nothing to show that the adoption of Oliver

Martin S. is not in the best interest of the child. Taking into

account all the circumstances of the case, the Commission cannot find

that the applicant has an arguable claim of a violation of his right

guaranteed by Article 8 (Art. 8) of the Convention. Consequently

Article 13 (Art. 13) does not apply in the present case. This part of

the application therefore has to be rejected as being incompatible

with the Convention ratione materiae within the meaning of Article 27

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

3. The Commission finds no issue under Article 6 (Art. 6) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the European Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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EDWARDS v. the FEDERAL REPUBLIC OF GERMANY

EDWARDS v. the FEDERAL REPUBLIC OF GERMANY