FIFTH SECTION

DECISION

Application no . 11332/12 Friedrich VORBECK against Austria

The European Court of Human Rights (F ift h Section), sitting on 19 September 2017 as a Chamber composed of:

Angelika Nußberger , President, Erik Møse , André Potocki , Yonko Grozev , Síofra O ’ Leary, Gabriele Kucsko-Stadlmayer , Lәtif Hüseynov , judges, and Milan Blaško , Deputy S ection Reg strar ,

Having regard to the above application lodged on 17 February 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Friedrich Vorbeck , is an Austrian national who was born in 1964 and lives in Vienna. He is represented before the Court by Mr G. Beneder , a lawyer practising in Vienna.

2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy , Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant and his former wife, I.M., are the parents of B.M., who was born in 2000 in wedlock. From 10 June 2002 the parents lived in separate households and B.M. lived together with her mother. The parents, however, continued to share custody. On 18 June 2003 I.M. applied for sole custody of B.M. On 22 October 2004 the applicant and I.M. concluded an agreement before the Purkersdorf District Court under which sole custody of B.M. was awarded to I.M.

5. On 27 September 2005 the applicant and I.M. divorced.

6. On 4 December 2007 the applicant and I.M. concluded a court settlement concerning the contact rights of the applicant in respect of B.M.

7. On 7 October 2010 the applicant applied for joint custody over B.M. and requested I.M. to agree to this application. However, I.M. disapproved of the applicant ’ s application for joint custody as there were ongoing disputes between the parents. The applicant, on the other hand, stated that he wished to be involved in B.M. ’ s life and to be included in decisions concerning her education, medical issues and other matters.

8. On 21 December 2010 the District Court heard the applicant, I.M. and B.M.; at the end of the hearing the applicant and I.M. confirmed that they would continue to adhere to the settlement of 22 October 2004 concerning the contact rights of the applicant.

9. On 16 February 2011 the District Court, having held a further hearing in the course of which the applicant, I.M. and B.M. were examined again, dismissed the applicant ’ s application for joint custody. It based this decision on Article 177a of the Civil Code, under which joint custody is only possible in the event of both parents consenting. The applicant requested the court to apply to the Constitutional Court for review of the constitutionality of this provision, but the District Court held that a court of first instance did not have the authority to lodge such an application.

10. The applicant appealed, arguing that Article 177a of the Civil Code was unconstitutional and in violation of his Convention rights; he also asked the Regional Court to request the Constitutional Court for review of the constitutionality of this provision.

11. On 27 April 2011 the St. Pölten Regional Court rejected the applicant ’ s request for an application to the Constitutional Court for judicial review in respect of Articles 177 and 177a of the Civil Code, as the Regional Court had no concerns regarding the constitutionality of these provisions. Referring explicitly to the Court ’ s judgment in the case of Sporer v. Austria (no. 35637/03 , 3 February 2011), the Regional Court found that the present case must be distinguished from Sporer . Under Articles 177 and 177a of the Civil Code, which applied in the present case, parents had joint custody of their child. If after divorce one parent were to ask for sole custody then the court, taking into account the well-being of the child, had to transfer custody to one of the parents. By contrast, Article 166 of the Civil Code, which was at issue in Sporer , provided that custody of a child born out of wedlock was from the very beginning to be granted only to the mother of that child. Given that in the event of the termination of joint custody after divorce or following an agreement between the parents, the law did not grant either of the parents a privileged position as regards the award of sole custody, there was no indication that this was discriminatory. If one were to follow the reasoning of the applicant that it should be possible to simply request the re-establishment of joint custody at any moment following a final court decision lifting joint custody or an agreement of the parents to that effect, the binding force of decisions whereby joint custody had been lifted would be rendered meaningless, which was in contradiction to the principle of legal certainty ( Rechtskraft ).

12. The Regional Court observed furthermore that the first-instance court had not made any findings as to the ability of the parents to find compromise ( Konsensf ä higkeit ) indispensable for the meaningful exercise of joint custody. From the content of the case file and in particular the expert reports submitted, it could, however, be deduced that at the time of the termination of joint custody, the parents lacked this ability, and there was no indication in the file that the situation had improved in the meantime. In such a situation it was not in the interest of the well-being of a child that once joint custody had been granted, every single issue on which parents did not agree – such as which school a child should attend – had to be determined by decision of the District Court.

13. On 20 May 2011 the applicant lodged an ordinary appeal ( ordentlicher Revisionsrekurs ) against the Regional Court ’ s decision of 27 April 2011 and asked the Supreme Court to apply to the Constitutional Court for review of the constitutionality of Articles 177 and 177a of the Civil Code.

14. On 30 August 2011 the Supreme Court rejected the applicant ’ s appeal as inadmissible. The ruling was served on the applicant ’ s counsel on 29 September 2011. The Supreme Court found that if custody of a child had been granted to one parent, either by a court decision or by agreement between the parents, then in the interest of consistency of education ( Erziehungskontinuit ä t ) a change of the person having custody could only be granted if there existed a risk to the well-being of the child. It was not decisive whether the circumstances of one parent were better tha n those of the other. The Supreme Court noted that in his application for joint custody the applicant had not even made the argument that circumstances had changed since the decision on cust ody of the District Court of 22 October 2004 had become final, and he had not given any other reasons (as required by Article 176 of the Civil Code) to justify a different ruling. The mere presupposition that joint custody exercised by both parents might be better for the well-being of the child was not a sufficient justification for interfering with a binding decision. Furthermore, the ability and intention of both parents to share their responsibility is an indispensable precondition for joint custody. It could be clearly seen from the case file that there was no agreement between the parents regarding the issue of joint custody and that no coordinated action when exercising joint custody could therefore be expected from them.

15. Following the 2013 amendment to the Civil Code (see para. 17 below), on 18 February 2013 the applicant lodged an application for joint custody of B.M. However, on 28 January 2014, he withdrew this application.

B. Relevant domestic law

16. Articles 177 and 177a of the Civil Code, as in force at the material time read as follows:

Article 177

“(1) If the marriage of the parents of a minor legitimate child is dissolved or annulled, the custodial rights of both parents remain intact. However, they may present an agreement to the court – even modifying an existing agreement – regarding custodial responsibility. In this connection it may be agreed that one parent alone or both parents shall have custody. Where both parents have custodial powers, those of one parent may be limited to specific matters.

(2) Where both parents have custody, they must submit an agreement to the court regarding the parent with whom the child is to stay primarily. This parent must always be put in charge of all custodial matters.

(3) The court must approve the agreement of the parents if it serves the interests of the child.”

Article 177a

“(1) If an agreement under Article 177 on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled, or if [such an agreement] is incompatible with the interests of the child, the court must decide which parent shall henceforth have sole custody, if all attempts to reach an amicable solution fail.

(2) If both parents have custody under Article 177 after their marriage has been dissolved or annulled, and if one parent applies for the withdrawal of that custody, the court must decide which parent shall have sole custody, if all attempts to reach an amicable solution fail.”

17. It is noted, however, that on 1 February 2013 the relevant provisions of the Austrian Civil Code were amended significantly. The relevant sections read as follows:

Article 179 of the Civil Code

Custody after dissolution of marriage and the common household

“(1) If the marriage or the common household of the parents is dissolved, joint custody is maintained. They can, however, conclude an agreement before a court under which one parent is entrusted with sole custody, or the custody of one parent is limited to certain matters.

(2) In the case that both parents have joint custody after the dissolution of their marriage or the common household, [the parents] have to conclude an agreement before a court regarding in whose household the child will predominantly be cared for.”

Article 180 of the Civil Code

Change of Custody

“(1) Provided that it is in the best interests of the child, the court has to decide on the provisional regulation of parental responsibility (“the phase of provisional parental responsibility”), if

1. after the dissolution of the marriage or the common household the parents cannot concur on an agreement, pursuant to section 179, within a reasonable time limit, or

2. one parent applies for sole custody or his/her participation in custodial rights.

...

(2) After [the phase of provisional responsibility, which lasts six months], the court has to take a final decision on custody (on the basis of what transpired during the phase of provisional parental responsibility) – including payment of statutory maintenance – [which is in the best interests of the child. ] ... If the court awards joint custody, it also has to decide in whose household the child will predominantly be cared for.”

COMPLAINT

18. The applicant complained under Article 8 of the Convention that the refusal by the Austrian courts to grant him joint custody of B.M. together with I.M. had infringed his right to respect for his family life .

THE LAW

19. The applicant complained that the domestic courts had to award sole custody to one of the parents once they had failed to agree on further joint custody; this constituted a breach of Article 8 of the Convention, which 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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. The parties ’ submissions

20. The Government argued that the applicant had not exhausted all domestic remedies. In this connection they relied on the fact that on 1 February 2013 an amendment to the relevant provisions of the Austrian Civil Code had entered into force and that under these amended provisions, the applicant had had the possibility to apply to the relevant authority to be awarded joint custody (see paragraph 17 above). Since the applicant had therefore had the possibility to have a fresh application for the awarding of joint custody examined by the domestic courts and had also made use of this possibility on 18 February 2013 but had subsequently withdrawn his request, he had failed to exhaust the domestic remedies available to him.

21. As regards the substance of the application the Government acknowledged that the refusal to grant the applicant joint custody constituted an interference with his right under Article 8 of the Convention to respect for his family life. That interference was, however, justified under Article 8 § 2 because it had been provided for by law and had pursued a legitimate aim. As regards the necessity of the interference, the Government argued that the applicant had always maintained contact with B.M. The applicant, who before had held joint custody of B.M. together with I.M., had agreed in the course of the divorce proceedings to the granting of sole custody to I.M. When the applicant had later on applied for the re-establishment of joint custody, that application had been dismissed by the Austrian courts. However, the Austrian courts had not merely refused the applicant ’ s request – relying on the Civil Code, which made the granting of joint custody dependent on the consent of the other parent – but had explained, why, given the circumstances of the case, a change of custody had not been in the interests of the well-being of the child and would not have safeguarded consistency of her education. Thus, the interference complained of had been justified under Article 8 § 2 of the Convention.

22. The applicant disputed the Government ’ s submissions. He argued that he had exhausted all domestic remedies available to him at the time he had made the application and that any subsequent development was not relevant.

23. He argued further that joint custody was in the best interests of the child and that he had made many efforts during the years after his divorce to rebuild his relationship with his daughter, B.M. In these efforts the Austrian courts should have assisted him by granting joint custody. However, this had not been possible because I.M. had refused to agree to the granting of joint custody and he had not had the possibility to have her decision superseded by a court order consenting to joint custody. The well-being of children was the central guiding principle of child custody law and to refuse joint custody merely because there was no agreement between him and I.M. had violated his right to respect for his family life under Article 8 of the Convention.

B. The Court ’ s assessment

24. As regards the Government ’ s argument that the applicant had failed to exhaust all domestic remedies the Court reiterates that an assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it (see Demopoulos and Others v. Turkey ( dec. ) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04 , § 87, ECHR 2010, and Grzinčič v. Slovenia , no. 26867/02, § 99, 3 May 2007). However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France , no. 33592/96, § 47, ECHR 2001-V, and Brusco v. Italy ( dec. ), no. 69789/01, ECHR 2001-IX). In particular, the Court has previously departed from this general rule in cases, for example, against Italy, Croatia and Slovakia concerning remedies against the excessive length of proceedings (see Brusco , cited above; Nogolica v. Croatia ( dec. ), no. 77784/01, ECHR 2002 ‑ VIII; Andr áš ik and Others v. Slovakia ( dec. ), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/ 00, 68563/01 and 60226/00, ECHR 2002-IX); and İçyer v. Turkey ( dec. ) no. 18888/02, ECHR 2006-I).

25. However, the Court need not examine whether in the present case there existed particular circumstances justifying an exception to the above-mentioned rule because the application is in any event inadmissible for the following reasons.

26. The Court reiterates that consideration of what is in the best interests of children is of crucial importance in every case concerning child custody. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001-V; Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003 ‑ VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003 ‑ VIII (extracts); G ö rg ü l ü v. Germany , no. 74969/01, § 41, 26 February 2004; and Wildgruber v. Germany ( dec. ), no. 32817/02, 16 October 2006).

27. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. In particular, when deciding on custody, the Court has recognised that the authorities enjoy a wide margin of appreciation (see, among many other cases, Glaser v. the United Kingdom , no. 32346/96, § 64, 19 September 2000; Sommerfeld , cited above, § 63; Sahin , cited above, § 65 ).

28. The Court reiterates that a fair balance must be struck between the interests of the child and those of the parent and that, in striking such a balance, particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent (see Hoppe v. Germany , no. 28422/95, § 49, 5 December 2002). Accordingly, the parent cannot be entitled under Article 8 to have measures taken that would harm the child ’ s health and development (see Elsholz v. Germany [GC], no. 25735/94, § 50 , ECHR 2000 ‑ VIII ).

29. The Court observes that it is not in dispute between the parties that the refusal to grant joint custody of B.M. to the applicant together with I.M. constituted an interference with the applicant ’ s right to respect for his family life under Article 8 of the Convention. Nor is it in dispute that the measure at issue had a basis in national law, namely Articles 177 and 177a of the Civil Code, and that it was aimed at protecting the best interests of the applicant ’ s child, B.M., which is a legitimate aim within the meaning of paragraph 2 of Article 8 (see Keegan v. Ireland , judgment of 26 May 1994, § 44, Series A no. 290, and Görgülü v. Germany , cited above). It therefore remains to be determined whether the decisions could be regarded as “necessary in a democratic society”.

30. As regards the question of whether the refusal to grant joint custody to the applicant was “necessary in a democratic society”, the Court observes that following the birth of B.M. in 2000, the applicant and I.M. had joint custody of her. In 2004, after they had separated, they concluded an agreement under which I.M. had sole custody of B.M. and the applicant the right to visit her. At that time the applicant, assisted by counsel throughout the proceedings, must have been aware that under the law in force any fresh decision on the issue of custody required an agreement of both parents. Six years later, in 2010, the applicant lodged an application for joint custody of B.M. to be re-established. That request was dismissed by the District Court on 16 February 2011 and appeals by the applicant were dismissed by the Regional Court on 27 April 2011 and by the Supreme Court on 30 A ugust 2011.

31. The Court notes that the domestic courts carefully considered the questions of awarding custody of B.M.. They found that the well-being of the child, and in particular the interests of consistency of education, required that a change of the person having custody could only be granted if there existed a risk to the well-being of the child. In the courts ’ view the applicant had not given sufficient reasons to justify a change in the custody of B.M., as it was not decisive whether the circumstances of the other parent were better. In their legal reasoning concerning the award of joint custody, the domestic courts did not merely rely on Articles 177 and 177a of the Civil Code – under which the granting of joint custody required the consensus of both parents, a condition which was not met in the present case due to the refusal of I.M. to grant her consent – but also pointed out (referring to the statements of the parties and the contents of the case file) that in the present case the parents lacked the ability to reach a compromise (indispensable for the meaningful exercise of joint custody). In this respect the Cou rt reiterates that the exclusion of shared parental authority when one of the parents opposes it falls within the margin of appreciation, taking into account the lack of any consensus among the Contracting states in this area ( Buchs v. Switzerland , no. 9929/12, § 55, 27 May 2014).

32. On these grounds, the Court is satisfied that the decision of the Purkersdorf District Court of 16 February 2011, as upheld by the St. Pölten Regional Court and the Supreme Court, struck a fair balance between the competing interests in the present case.

33. Lastly, the Court cannot overlook the fact that, two years after the final decision in the proceedings at issue had been delivered by the Supreme Court on 30 August 2011, the applicant had the opportunity of applying for joint custody even in the absence of consent to this measure by I.M., as meanwhile the relevant provisions of the Civil Code had been amended. Following that amendment the applicant, on 18 February 2013, lodged an application for joint custody of B.M.; however, on 28 January 2014 he withdrew this application. No further issue arises under Article 35 § 1 of the Convention and the question whether the applicant has exhausted all domestic remedies (see paragraphs 24 and 25 above).

34. Consequently, the Court concludes that there is no appearance of a violation of Article 8 of the Convention. It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 October 2017 .

Milan Blaško Angelika Nußberger Deputy Registrar President